State v. Hill, 102020 LASC, 2020-KA-00323

Docket Nº:2020-KA-00323
Opinion Judge:GENOVESE, J.
Party Name:STATE OF LOUISIANA v. TAZIN ARDELL HILL
Judge Panel:WEIMER, J., concurring. CRAIN, J., dissenting.
Case Date:October 20, 2020
Court:Supreme Court of Louisiana
 
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STATE OF LOUISIANA

v.

TAZIN ARDELL HILL

No. 2020-KA-00323

Supreme Court of Louisiana

October 20, 2020

ON APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, FOR THE PARISH OF LAFAYETTE

GENOVESE, J. [*]

This case involves the constitutionality of a statutory requirement that persons convicted of sex offenses carry an identification card branded with the words "SEX OFFENDER." This obligation is included as part of a comprehensive set of registration and notification requirements imposed on sex offenders in Louisiana. Other states (and the federal government) have enacted similar collections of laws. However, the specific requirement to carry a branded identification card distinguishes Louisiana from the rest of the country. Forty-one other states do not require any designation on the identification cards of sex offenders.

For the reasons below, we find that this requirement constitutes compelled speech and does not survive a First Amendment strict scrutiny analysis. Thus, we uphold the trial court's ruling striking this specific requirement as unconstitutional and quashing the prosecution of defendant for altering his identification card to conceal the "SEX OFFENDER" designation.

FACTS AND PROCEDURAL HISTORY

On April 10, 2017, the state filed a bill of information charging defendant, Tazin Ardell Hill, with altering an official identification card to conceal his designation as a registered sex offender, in violation of La. R.S. 15:542.1.4(C). Defendant pleaded not guilty and filed a motion to quash, contending that La. R.S. 40:1321(J) and 15:542.1.4(C) are unconstitutional.

Defendant argued that La. R.S. 40:1321(J) and 15:542.1.4(C) violate the First Amendment1 prohibition against compelled speech. In response, the state argued that defendant failed to meet his burden of proof in challenging the constitutionality of the statute. Additionally, the state alleged he lacked standing to challenge the requirement that he carry his branded identification card, as he was charged instead with altering it-not failing to carry it. Furthermore, the state asserted the alteration of his identification card lacked First Amendment protection for three reasons: (1) the statute regulates conduct, not speech; (2) regardless of the classification of the statute, defendant's actions fell outside of First Amendment protection because they constituted speech integral to criminal conduct; and, (3) defendant acted fraudulently, and fraud is not protected speech. Additionally, the state argued the First Amendment did not permit him to engage in "self-help" by illegally altering the card. Finally, the state averred that, even if a strict scrutiny analysis was required, it was satisfied.

On October 30, 2019, the district court provided a short statement quashing the state's bill of information against defendant and holding that La. R.S. 40:1321(J) and La. R.S. 15:542.1.4(C) are facially unconstitutional. Specifically, the court stated: I found the statute to be unconstitutional. [T]he requirement that the offender have "sex offender" written on his official state identification is not the least restrictive way to further the State's legitimate interest of notifying law enforcement. It could be accomplished in the same way that some other states utilize. Louisiana could use more discreet labels in the form of codes that are known to law enforcement.

The state appealed.

DISCUSSION

Before we reach the merits of this case, we must address certain preliminary issues. Specifically, we must determine that the case is properly before this court2 and that defendant properly raised the constitutionality of the statute in the court below.

Defendant properly challenged the constitutionality of the statutes in the court below.

This court has held "that a constitutional challenge may not be considered by an appellate court unless it was properly pleaded and raised in the trial court below." State v. Hatton, 07-2377, p. 13 (La. 7/1/08), 985 So.2d 709, 718. In Hatton, this court described the challenger's burden as a three-step analysis. "First, a party must raise the unconstitutionality in the trial court; second, the unconstitutionality of a statute must be specially pleaded; and third, the grounds outlining the basis of unconstitutionality must be particularized." Id., 07-2377, p. 14, 985 So.2d at 719. Defendant has met this burden in this case.

The statute requiring defendant to obtain and carry a branded identification card and the statute setting forth the penalties for altering that card are so interrelated

as to be non-severable, thus allowing defendant to challenge the constitutionality of the obtain-and-carry provision of the statute although he is charged with altering the identification.

Next, we must determine whether La. R.S. 15:542.1.4(C), which sets forth the penalties for altering a branded identification card, is severable from the obtain-and-carry provision found in La. R.S. 40:1321(J). The severability of La. R.S. 15:542.1.4(C) is important because it determines whether defendant has standing to challenge the underlying obtain-and-carry provision found in La. R.S. 40:1321(J).

The state argues that a ruling on the constitutionality of the obtain-and-carry provision is not essential, as the state did not charge defendant with violating the provision requiring him to obtain and carry a branded identification card. Instead, it charged him with altering an official identification document to conceal the designation that he is a registered sex offender, in violation of La. R.S. 15:542.1.4(C). Defendant counters that the statutes are so interrelated as to be non-severable, which affords defendant the standing to challenge the underlying requirement to carry a branded identification card.

As mentioned at the outset, defendant was charged with altering an official identification card to conceal the designation that he was a registered sex offender in volition of La. R.S. 15:542.1.4(C), which provides as follows: (1) Any person who either fails to meet the requirements of R.S. 32: 412(I) or R.S. 40:1321(J), who is in possession of any document required by R.S. 32:412(I) or R.S. 40:1321(J) that has been altered with the intent to defraud, or who is in possession of a counterfeit of any document required by R.S. 32:412(I) or R.S. 40:1321(J), shall, on a first conviction, be fined not more than one thousand dollars and imprisoned at hard labor for not less than two years nor more than ten years without benefit of parole, probation, or suspension of sentence.

The obtain-and-carry provision, La. R.S. 40:1321(J), states in its entirety: (1) Any person required to register as a sex offender with the Louisiana Bureau of Criminal Identification and Information, as required by R.S. 15:542 et seq., shall obtain a special identification card issued by the Department of Public Safety and Corrections which shall contain a restriction code declaring that the holder is a sex offender. This special identification card shall include the words "sex offender" in all capital letters which are orange in color and shall be valid for a period of one year from the date of issuance. This special identification card shall be carried on the person at all times by the individual required to register as a sex offender.

(2) Each person required to carry a special identification card pursuant to this Subsection shall personally appear, annually, at a field office of the office of motor vehicles to renew his or her special identification card[, ] but only after he or she has registered as an offender pursuant to R.S. 15:542 et seq. Reregistration shall include the submission of current information to the department and the verification of this information, which shall include the street address and telephone number of the registrant; the name, street address and telephone number of the registrant's employer[;], and, any registration information that may need to be verified by the bureau. No special identification card shall be issued or renewed until the office of motor vehicles receives confirmation from the bureau, electronically or by other means, that the reregistration of the sex offender has been completed.

(3) The provisions of this Subsection shall apply to all sex offenders required to register pursuant to R.S. 15:542 et seq., regardless of the date of conviction.

(4) Whoever violates this Subsection shall be fined not less than one hundred dollars and not more than five hundred dollars, or imprisoned for not more than six months, or both.

"The test for severability is whether the unconstitutional portions of the statute are so interrelated and connected with the constitutional parts that they cannot be separated without destroying the intention manifested by the legislature in passing the act." State v. Baxley, 93-2159 (La. 2/28/94), 633 So.2d 142, 144-45 (quoting State v. Azar, 539 So.2d 1222, 1226 (La.), cert. denied, 493 U.S. 823, 110 S.Ct. 82, 107 L.Ed.2d 48 (1989)).

Here, La. R.S. 40:1321(J) is not so distinct from La. R.S. 15:542.1.4(C) as to be severable. The state must first prove as an element of the crime that defendant is required by La. R.S. 40:1321(J) or La. R.S. 32:412(I) to carry an identification card branded with the word "sex offender." Louisiana Revised Statutes 15:542.1.4(C) applies only to people who are required to obtain and carry the branded identification card and criminalizes a person's failure to comply with this requirement. Because La. R.S. 15:542.1.4(C) depends on the obtain-and-carry requirement for an understanding of its meaning, severing them would destroy the intention manifested by the legislature.

Having found that defendant satisfied the initial hurdles presented by his case,...

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