State v. Leppert

Decision Date19 February 2003
Docket NumberNo. 20020160.,20020160.
Citation2003 ND 15,656 N.W.2d 718
PartiesSTATE of North Dakota, Plaintiff and Appellant, v. Mark LEPPERT, Defendant and Appellee.
CourtNorth Dakota Supreme Court

Jonathan R. Byers (argued), Assistant Attorney General, Bismarck, ND, and Daniel Dean Narum (on brief), State's Attorney, LaMoure, ND, for plaintiff and appellant.

Gary D. Neuharth, Oakes, for defendant and appellee.

NEUMANN, Justice.

[¶ 1] The State appealed an order denying its motion to require Mark Leppert to submit an oral swab under N.D.C.C. § 31-13-03 for a deoxyribonucleic acid ("DNA") sample. We hold 2001 amendments to N.D.C.C. § 31-13-03 authorize DNA testing of persons convicted of certain nonsexual felonies and establish a DNA data base for the test results of persons convicted of those offenses. We hold the amended statute is rationally related to a legitimate purpose and does not violate equal protection. We reverse and remand.

I

[¶ 2] In 1995, the Legislature enacted N.D.C.C. ch. 31-13 to authorize DNA testing and to establish a DNA data base. See 1995 N.D. Sess. Laws ch. 325. As originally enacted, N.D.C.C. § 31-13-03 required DNA testing of persons convicted of certain enumerated sexual offenses or attempted sexual offenses after August 1, 1995, or of persons in the custody of the Department of Corrections and Rehabilitation after that date as a result of a conviction for one of those offenses. Section 31-13-05, N.D.C.C., established a centralized database of DNA identification records for convicted sexual offenders.

[¶ 3] In 1997, Leppert was convicted of felonious restraint under N.D.C.C. § 12.1-18-02, and aggravated assault under N.D.C.C. §§ 12.1-17-02(2) and 12.1-03-01(1), and he was sentenced to the custody of the Department of Corrections and Rehabilitation.

[¶ 4] In 2001, the Legislature amended N.D.C.C. § 31-13-03 to require DNA testing of persons convicted after July 31, 2001 of certain nonsexual felonies, including aggravated assault and felonious restraint, or of persons in the custody of the Department of Corrections and Rehabilitation after that date as a result of a conviction for one of those offenses:

The court shall order any person convicted on or after August 1, 1995, of any sexual offense or attempted sexual offense in violation of sections 12.1-20-03, 12.1-20-03.1, 12.1-20-04, 12.1-20-05, 12.1-20-06, subdivision e or f of subsection 1 of section 12.1-20-07, or section 12.1-20-11 or any other offense when the court finds at sentencing that the person engaged in a nonconsensual sexual act or sexual contact with another person during, in the course of, or as a result of, the offense and any person who is in the custody of the department after July 31, 1995, as a result of a conviction of one of these offenses to have a sample of blood or other body fluids taken by the department for DNA law enforcement identification purposes and inclusion in law enforcement identification data bases. The court shall order any person convicted after July 31, 2001, of a felony offense contained in chapter 12.1-16, 12.1-17, or 12.1-18, section 12.1-22-01, or chapter 12.1-27.2 and any person who is in the custody of the department afer July 31, 2001, as a result of a conviction for one of these offenses to have a sample of blood or other body fluids taken by the department for DNA law enforcement identification purposes and inclusion in the law enforcement identification data bases. Notwithstanding any other provision of law, if the sentencing court has not previously ordered a sample of blood or other body fluids to be taken, the court retains jurisdiction and authority to enter an order that the convicted person provide a sample of blood or other body fluids as required by this section. Any person convicted after July 31, 1995, who is not sentenced to a term of confinement shall provide a sample of blood or other body fluids as a condition of the sentence or probation at a time and place specified by the sentencing court. The sentencing court shall assess the cost of the procedure against the person being tested. The department shall collect the cost of the procedure from the person being tested and transfer the amount collected to the state department of health for deposit in the general fund.

(Emphasis added.) However, the 2001 Legislature did not amend N.D.C.C. § 31-13-05 to include in the centralized DNA data base the test results for persons convicted of the additional nonsexual offenses listed in N.D.C.C. § 31-13-03.

[¶ 5] In January 2002, the State sought to require Leppert, who was then in the custody of the Department of Corrections and Rehabilitation as a result of his 1997 convictions for aggravated assault and felonious restraint, to submit a DNA sample by oral swab under the amended version of N.D.C.C. § 31-13-03. Leppert resisted and challenged the constitutionality of N.D.C.C. § 31-13-03 on several grounds, including his right to equal protection. The attorney general moved to intervene to defend the constitutionality of N.D.C.C. § 31-13-03. The trial court granted the attorney general's motion to intervene in a March 15, 2002 memorandum that requested further responses on the equal protection challenge. The court subsequently denied the State's motion to require Leppert to submit to DNA testing, concluding N.D.C.C. § 31-13-03 violated Leppert's equal protection rights under the United States Constitution:

In the Court's Memorandum dated March 15, 2002, the Court had invited further briefing from the State on the issue of whether N.D.C.C. § 31-13-03 could be applied to this Defendant, on equal protection grounds, when the Defendant was convicted of felonious restraint, a non "sex related crime", and the only statutory purpose set forth for obtaining a DNA sample is to be "... used to assist federal, state, and local criminal justice and law enforcement agencies within and outside the state in the identification or prosecution of sex-related crimes." See N.D.C.C. § 31-13-05....
For equal protection analysis, in this Memorandum, the Court had asked: "How is a compelling state interest shown, much less a rational basis shown, when the specified statutory purposes for DNA sampling is solely tied to "sex related crimes" and the Defendant has been convicted of a non—"sex related crime"? See Vanderlinden v. Kansas, 874 F.Supp. 1210, 1217 (Dist. Kansas 1995) wherein the Court held that the convicted Plaintiffs in that case had a compelling interest in their bodily integrity/fluids and that the State showed a compelling state interest for need of the DNA samples when the statute was narrowly drawn. No response to this question has been submitted by the State ...
In this Memorandum, the Court also noted: "The Attorney General's Brief indicates that the legislative history associated with the expansion, in 2001, of crimes subject to DNA sampling was intended to increase the success rate of solving crimes in and out of state, not just "sex related crimes". However, these legislative intentions were not translated into an expansion of offenses in NDCC § 31-13-05. This statutory purposes section does not provide for any offenses other than "sex related offenses". The Attorney General's Brief... indicates: `However, the legislative history of the 2001 amendment makes it clear that the Legislature intended the statute to apply to other crimes than sex offenses.' However this legislative intention was not translated statutorily and the Attorney General's brief does not explain how legislative intention is valid without statutory enactment....
Whether through inadvertence or otherwise, legislative intentions that are not translated into statutory enactment cannot, for obvious reasons, be given credence. The present language constituting the statutory purpose for DNA sampling in N.D.C.C. 31-13-05 does not match the expansion, in the year 2001, of offenses subject to DNA sampling as set forth in N.D.C.C. § 31-13-03. The rational basis test of equal protection analysis, much less the compelling state interest test, is clearly not met in this case. The Court does not determine which test should apply. As applied to this Defendant, N.D.C.C. § 31-13-03 violates the Defendant's equal protection rights under the United States Constitution. Because of the disposition made by this Order, the Court does not make any final ruling on the other bases set forth by the Defendant for why he is not subject to DNA sampling requirements.

The State appealed.

II

[¶ 6] The State argues the 2001 amendments to N.D.C.C. § 31-13-03 do not violate Leppert's equal protection rights. The State argues the rational basis standard of review applies to Leppert's equal protection challenge and an unarticulated legislative purpose may be considered in assessing that challenge. The State argues the 2001 amendments to N.D.C.C. § 31-13-03 are rationally related to a legitimate governmental purpose.

[¶ 7] The equal protection clauses of the state and federal constitutions do not prohibit legislative classifications or require identical treatment of different groups of people. Eagle v. North Dakota Workers Comp. Bureau, 1998 ND 154, ¶ 9, 583 N.W.2d 97. Legislative classifications are subject to different standards of scrutiny, depending on the right infringed by the challenged classification. Id. In Gange v. Clerk of Burleigh County Dist. Court, 429 N.W.2d 429, 433 (N.D. 1988) (citations omitted) we outlined three levels of judicial scrutiny for reviewing equal protection claims:

We apply strict scrutiny to an inherently suspect classification or infringement of a fundamental right and strike down the challenged statutory classification "unless it is shown that the statute promotes a compelling governmental interest and that the distinctions drawn by the law are necessary to further its purpose." When an "important substantive right" is involved, we apply an intermediate standard of review which requires a
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