U.S. v. Male

• Decision Date: 17 May 2011
• Docket Number: No. OP 10–0280.,OP 10–0280.
• Parties: UNITED STATES of America, Petitionerv.JUVENILE MALE, Respondent.
• Court: Montana Supreme Court

360 Mont. 317

255 P.3d 110

2011 MT 104

UNITED STATES of America, Petitioner

v.JUVENILE MALE, Respondent.

No. OP 10–0280.

Supreme Court of Montana.

Argued Jan. 19, 2011.Submitted Jan. 20, 2011.Decided May 17, 2011.

For Petitioner: Michael R. Dreeben (argued), Deputy Solicitor General; Neal Kumar Katyal, Acting Solicitor General; Lanny A. Breuer, Assistant Attorney General; Roy W. McLeese, III, Acting Deputy Solicitor General; Melissa Arbus Sherry, Assistant to the Solicitor General; J. Campbell Barker, Attorney, Department of Justice; Washington, District of Columbia, Michael W. Cotter, United States Attorney; Leif Johnson, Assistant United States Attorney, District of Montana; Billings, Montana.For Respondent: Michael Donahoe (argued), Senior Litigator, Federal Defenders of Montana; Anthony R. Gallagher, Federal Defender; Helena, Montana.For Amicus Curiae State of Montana: Steve Bullock, Montana Attorney General; J. Stuart Segrest, Assistant Attorney General; Helena, Montana.Justice JIM RICE delivered the Opinion of the Court.

¶ 1 On June 7, 2010, the Supreme Court of the United States issued a per curiam order certifying to this Court a question of Montana law related to a petition for certiorari pending before the Supreme Court. United States v. Juvenile Male, 560 U.S. ––––, 130 S.Ct. 2518, 177 L.Ed.2d 64 (2010). On June 23, 2010, we entered an order accepting the certified question pursuant to M.R.App. P. 15(7), based upon the statement of facts and procedural background provided by the Supreme Court. Following briefing by the parties, oral arguments were entertained January 19, 2011. We address the Supreme Court's question as posed:

Is respondent's duty to remain registered as a sex offender under Montana law contingent upon the validity of the conditions of his now-expired federal juvenile-supervision order that required him to register as a sex offender, see Mont.Code Ann. §§ 46–23–502(6)(b), 41–5–1513(1)(c) (2005); State v. Villanueva, 328 Mont. 135, 138–140, 118 P.3d 179, 181–182 (2005); see also § 46–23–502(9)(b) (2009), or is the duty an independent requirement of Montana law that is unaffected by the validity or invalidity of the federal juvenile-supervision conditions, see § 46–23–502(10) (2009); 2007 Mont. Laws ch. 483, § 31, p. 2185?

¶ 2 Our answer to the certified question is that Respondent's state law duty to remain registered as a sex offender is not contingent upon the validity of the conditions of his federal supervision order, but is an independent requirement of Montana law.

¶ 3 In 2005, Respondent entered a “true” plea and was adjudged delinquent in the United States District Court for the District of Montana for knowingly engaging in sexual acts with a person under 12 years of age, which would have been a crime under 18 U.S.C. §§ 2241(c) and 1153(a) if committed by an adult. The District Court imposed official detention for two years and supervision until Respondent reached the age of 21, upon conditions. Juveniles adjudicated delinquent for certain serious sex offenses are required to register under the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901 et seq., enacted by Congress in 2006. In February 2007, the Attorney General issued an interim rule, codified at 28 C.F.R. § 72.3 (2010), specifying that the requirement applied to offenders convicted of a requisite offense prior to the enactment of SORNA. 72 Fed.Reg. 8894, 8897 (Feb. 16, 2007). In July 2007, the District Court revoked Respondent's supervision for violating a condition, committing him to additional detention and imposing conditions requiring him to register as a sex offender and to keep his registration current. Respondent appealed the conditions, and the Ninth Circuit Court of Appeals vacated the registration requirement on federal ex post facto grounds. United States v. Juvenile Male, 590 F.3d 924 (9th Cir.2010). The United States petitioned the Supreme Court for certiorari. Respondent's term of supervision expired in May 2008, and he is no longer subject to the registration condition of his sentence. In the certification order, the Supreme Court states that, before addressing the question of certiorari, “we must resolve a threshold issue of mootness” and determine “whether a favorable decision in this case would make it sufficiently likely that respondent could remove his name and identifying information from the Montana sex offender registry.” Juvenile Male, 130 S.Ct. at 2519 (internal quotations and citation omitted). Thus, the Supreme Court has certified the question to “help determine whether this case presents a live case or controversy....” Juvenile Male, 130 S.Ct. at 2520.

¶ 4 The Montana Sexual or Violent Offender Registration Act (SVORA or the Act) was enacted in 1989 and generally imposes a lifetime requirement, unless relieved by court order, upon sexual offenders to register with a law enforcement agency when present in Montana. Section 46–23–506(1), (3), MCA (2009); ¹ see generally §§ 46–23–501 through –520, MCA. “Sexual offender” is generally defined as “a person who has been convicted of or, in youth court, found to have committed or been adjudicated for a sexual ... offense.” Section 46–23–502(10), MCA. “Sexual offense” is defined as a “violation of or attempt, solicitation or conspiracy to commit” any of a listing of Montana sexual offenses. Section 46–23–502(9)(a), MCA. A sexual offender who knowingly fails to register or keep registration current is subject to criminal penalties. Section 46–23–507, MCA.

¶ 5 From SVORA's enactment in 1989, sexual offenders convicted in other jurisdictions have been required to register for offenses that are “reasonably equivalent” to any of the listed Montana sexual offenses. State v. Hamilton, 2007 MT 167, ¶ 9, 338 Mont. 142, 164 P.3d 884; Laws of Montana, 1989, ch. 293, § 2, at 632; § 46–23–502(9)(b), MCA (defining “sexual offense” to include “any violation of a law of another state, a tribal government, or the federal government that is reasonably equivalent to a violation listed”). A 2001 amendment to SVORA retroactively applied the registration requirement to offenders who were sentenced, or placed under supervision, in another jurisdiction for a sexual offense since July 1, 1989. Laws of Montana, 2001, ch. 152, § 1, at 719; State v. Villanueva, 2005 MT 192, ¶ 15, 328 Mont. 135, 118 P.3d 179. A 2005 amendment applied SVORA to offenders who were required to register as a sex offender after conviction in another jurisdiction. Laws of Montana, 2005, ch. 313, § 1, at 1010; Hamilton, ¶ 9. In 2007, the definition of “sexual offender” was revised to include a person who “in youth court” was “found to have committed or been adjudicated for” a sexual offense. Laws of Montana, 2007, ch. 483, § 19, at 2174.² Correspondingly, “sexual offense” was amended to include an “adjudication” for which registration was required in another jurisdiction. Laws of Montana, 2007, ch. 483, § 19, at 2173–74 (defining “sexual offense” to include “any violation of a law of another state, a tribal government, or the federal government ... after an adjudication or conviction” for which an offender is required to register). The amendments incorporating juvenile proceedings within SVORA were explicitly made retroactive to offenders “who are sentenced or who are in the custody or under the supervision of the department of corrections on or after July 1, 1989....” Laws of Montana, 2007, ch. 483, § 31(1), at 2185.

¶ 6 Noting that the term “sentenced” used within the retroactivity provision is defined in § 46–1–202(25), MCA, as “the judicial disposition of a criminal proceeding,” and that youth proceedings are considered civil in nature, Respondent argues that “[t]he Montana Legislature never intended that the 2007 SVORA amendments were to be retroactively applied against juveniles.” Although acknowledging that Villanueva “seems to hold” that “the Montana Legislature always intended that the SVORA provisions would be applied retroactively,” Respondent argues there are distinctions between the retroactivity provisions of the 2001 SVORA amendments at issue in Villanueva and the 2007 SVORA amendments which compel a different outcome.

¶ 7 Whether legislation is applied retroactively is a question of legislative intent. See Hamilton, ¶ 10. There is a presumption against applying statutes retroactively, Neel v. First Fed. Sav. & Loan Assoc. of Great Falls, 207 Mont. 376, 386, 675 P.2d 96, 102 (1984), and § 1–2–109, MCA, provides that statutes are not retroactive unless expressly so declared by the Legislature. “Legislative intent that statutes be applied retroactively must be manifest in the statutes and from no other source.” Hamilton, ¶ 10 (citing Neel, 207 Mont. at 386, 675 P.2d at 102). The controlling principle with regard to retroactivity of legislation has been stated as follows: If an act is “unmistakably ‘intended to operate retrospectively, that intention is controlling as to the interpretation of the statute, even though it is not expressly so stated.’ ” Hamilton, ¶ 10 (emphasis added) (quoting Neel, 207 Mont. at 386, 675 P.2d at 102).

¶ 8 The defendant in Hamilton argued that the 2005 SVORA amendments were not retroactive. Hamilton, ¶ 10. In taking up the question, we noted that the Legislature had failed to provide an explicit statement of retroactivity for the 2005 amendments. Hamilton, ¶ 13. In order to determine whether the Legislature unmistakably intended the amendments to operate retroactively, we considered the purposes of SVORA, the purposes of the 2005 amendments, and the Legislature's previous efforts to make SVORA retroactive. Hamilton, ¶ 14. We reasoned that “[g]iven the Legislature's goal of administrative efficiency, it is only logical that the Legislature intended the amendments to apply retroactively. If the amendments were applied only to offenses committed after October 1, 2005, the result would be administrative chaos rather...