State v. Doe

• Citation: 425 P.3d 115
• Decision Date: 10 August 2018
• Docket Number: Supreme Court Nos. S-15821/16403 (Consolidated)
• Parties: STATE of Alaska, DEPARTMENT OF PUBLIC SAFETY, Appellant, v. John DOE I, Appellee. John Doe II, Appellant, v. State of Alaska, Department of Public Safety Appellee.
• Court: Supreme Court of Alaska (US)

425 P.3d 115

STATE of Alaska, DEPARTMENT OF PUBLIC SAFETY, Appellant,

v.John DOE I, Appellee.

John Doe II, Appellant,

v.State of Alaska, Department of Public Safety Appellee.

Supreme Court Nos. S-15821/16403 (Consolidated)

Supreme Court of Alaska.

August 10, 2018

John J. Novak, Assistant Attorney General, Criminal Division Central Office, Anchorage, and Craig W. Richards, Attorney General, Juneau, for Appellant State of Alaska, Department of Public Safety. John Doe I, pro se, Pacific, Washington, Appellee.

Darryl L. Thompson, Darryl L. Thompson, P.C., Anchorage, for Appellant John Doe II. John J. Novak, Assistant Attorney General, Criminal Division Central Office, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee State of Alaska, Department of Public Safety.

File No. S-15821 before: Stowers, Chief Justice, Fabe, Maassen, and Bolger, Justices. [Winfree, Justice, not participating]

File No. S-16403 before: Stowers, Chief Justice, Maassen, Bolger, and Carney, Justices, and Matthews, Senior Justice.^* [Winfree, Justice, not participating]

OPINION

PER CURIAM.

I. INTRODUCTION

John Doe I and John Doe II are two separate individuals being required by the Department of Public Safety (DPS) to register as sex offenders in Alaska based on their out-of-state convictions. DPS argues that Doe I's Washington convictions and Doe II's California conviction are "similar" to the Alaska offense of attempted sexual abuse of a minor under AS 11.31.100 and AS 11.41.436(a)(2), making both Doe I and Doe II subject to Alaska's sex offender registration requirement. One superior court judge determined that Doe I is not required to register; another superior court judge determined that Doe II is required to register. The cases have been consolidated on appeal. We conclude that neither the Washington nor the California laws under which Doe I and Doe II were convicted are similar to the relevant Alaska law and therefore hold that neither Doe I nor Doe II is required to register under Alaska law.

II. FACTS AND PROCEEDINGS

A. DPS v. Doe I , S-15821

In June 2011, at the age of 51, John Doe I pleaded guilty to two counts of "communicating with a minor for immoral purposes" in violation of the Revised Code of Washington (RCW) 9.68A.090 ; violation of this statute is a gross misdemeanor. In his guilty plea, Doe I admitted that "between October 1, 2009 and October 31, 2009, on two separate occasions, [he] communicated with [an 11-year-old] ... for an immoral purpose of a sexual nature." The Washington superior court sentenced Doe I to two consecutive twelve-month sentences and suspended the sentences, ordering three months of confinement for each count and four years of probation. The court ordered him to obtain a sexual deviancy evaluation, to have no contact with the victim and "no unsupervised contact with minors," and to register as a sex offender.¹

In April 2014 Doe I formally petitioned the Alaska DPS Sex Offender Registry for a determination whether he would be required to register as a sex offender in Alaska. He represented that he had an upcoming work project in Alaska that was unlikely to require more than 30 days in the state but that he also had other work prospects in Alaska as well as family that he would like to visit. He indicated that "[p]rior to spending more time in Alaska, [he] wish[ed] to understand if [his] presence [would] trigger a registration requirement." In June 2014 DPS informed Doe I that, because of his two convictions in Washington, he must "register [as a sex offender] quarterly, for life, while ... work[ing] or liv[ing] in Alaska."

Doe I subsequently filed a complaint in the Alaska Superior Court for declaratory judgment and injunctive relief, asking for a declaration that his conviction under RCW 9.68A.090"is not ‘similar’ to an Alaska sex offense as defined by AS 12.63.100" and that he was therefore not required to register as a sex offender in Alaska. The superior court heard oral argument and issued an order ruling that Doe I was not required to register. DPS appeals.

B. Doe II v. DPS , S-16403

In October 2014 John Doe II was convicted of violating California Penal Code 647.6(a), "[a]nnoying or molesting child under 18." After pleading no contest, he was sentenced to two years of probation; upon successfully completing probation, he would be permitted to "apply to the Court to have [his] conviction set aside pursuant to Section 1203.4 of the Penal Code." He was required to register as a sex offender if he resided in California.

Doe II moved to Alaska prior to sentencing and did not register as a sex offender. In December 2014, upon determining that his California conviction was similar to the Alaska offense of attempted sexual abuse of a minor in AS 11.41.436(a)(2), DPS informed him that he was required to register in Alaska. He argued through a letter from his attorney to DPS that he was not a sex offender as defined in AS 12.63.100(5). DPS treated the letter as an administrative appeal and sent him a letter affirming its determination that he must register as a sex offender in Alaska annually for 15 years based on his California conviction.

Doe II appealed to the superior court and the court granted him a limited stay of the DPS decision. The stay required him to register but enjoined DPS from publically disseminating any identifying information about him on the sex offender website. Oral argument was held and a written decision was issued affirming DPS's decision. Doe II appeals.

III. STANDARD OF REVIEW

"Where the superior court acts as an appellate court reviewing a decision by an administrative agency, we independently review the underlying administrative decision."² DPS argues that its agency decision involves agency expertise and is thus subject to the "reasonable basis" test,³ because DPS "has been responsible for interpreting and administering the Alaska Sex Offender Registration Act (‘ASORA’) ever since it came into effect in 1994." However, "where the agency's expertise provides little guidance to the court or where the case concerns statutory interpretation or other analysis of legal relationships about which courts have specialized knowledge and expertise," the substitution of judgment standard applies.⁴ The question whether a law of another jurisdiction is "similar" to a specified Alaska statute is a question of statutory interpretation and is thus "within the scope of the court's special competency"⁵ and "is a question of law to which we apply our independent judgment."⁶ "We interpret statutes ‘according to reason, practicality, and common sense, considering the meaning of the statute's language, its legislative history, and its purpose.’ "⁷ Questions of statutory interpretation are decided on a sliding scale, which means that "the plainer the language of the statute, the more convincing any contrary legislative history must be."⁸

IV. DISCUSSION

A. "Similar Law Of Another Jurisdiction"

When interpreting a statute, "we begin with the plain meaning of the statutory text."⁹ ASORA requires 15 years of registration for individuals convicted of a single non-aggravated sex offense, and lifetime registration for individuals convicted of two or more sex offenses or a single aggravated offense.¹⁰ Alaska Statute 12.63.100(6)(C) defines "sex offense" as "a crime, or an attempt, solicitation, or conspiracy to commit a crime, under [one of the listed statutes] or a similar law of another jurisdiction ." (Emphasis added.) Because "similar" modifies "law of another jurisdiction," based on the plain language of the statute, it is the law that must be similar. We therefore "employ a categorical approach by looking to the statute ... of conviction, rather than to the specific facts underlying the crime" to determine whether that statute is similar to one of the pertinent Alaska sex offenses under AS 12.63.100(6)(C).¹¹

Under the categorical approach, we compare the elements of the statute of conviction to the elements of the allegedly similar Alaska statute.¹² As in the presumptive sentencing context, if the out-of-state statute is "more restrictive than the Alaska statute" in such a way that "any offender who could be convicted under the [out-of-state] law would be subject to conviction under the elements of the Alaska statute," the elements are "similar."¹³ However, "[e]ven if there might be conduct that would be penalized by the [out-of-state] statute, but not Alaska's, that does not prevent a conclusion that the elements ... are similar."¹⁴

In addition to considering the meaning of the language of a statute, we also consider its legislative history and purpose.¹⁵ DPS argues that the legislative history and purpose of ASORA support "an evaluation of the full picture — the elements of the offense as well as the facts of the actually engaged in conduct — so as to be able to make fully informed registration requirement decisions, rather than decisions restricted to only comparing elements."

The legislature made the following legislative findings when enacting ASORA:

(1) sex offenders pose a high risk of reoffending after release from custody;

(2) protecting the public from sex offenders is a primary governmental interest;

(3) the privacy interests of persons convicted of sex offenses are less important than the government's interest in public safety; and

(4) the release of certain information about sex offenders to public agencies and the general public will assist in protecting the public safety.^[16]

Although the approach argued for by DPS might be consistent with these legislative findings, the strict categorical approach also serves a protective purpose and is not contrary to the legislative findings. We disagree with DPS's approach. We conclude that the plain meaning of the statute is not overcome by contrary legislative history.

Having determined that AS 12.63.100(6)(C) requires a comparison of laws, we next turn to the question of the meaning of "similar." ASORA provides no definition of "similar," so we look...