By Larry and King Alexander, Jr.* . . . This is a rather fascinating situation because it illustrates the federalism problem seen when two different courts, one federal and one state, interpret the same state statute and come to radically different conclusions. People often mistakenly believe that the federal court determination controls because federal courts are a higher authority than state courts. This is only true on federal issues. Which court has the final say really depends on the actual claims or issues being decided. The United States Court of Appeals for the Eighth Circuit ruled that adjudicated juveniles from other states are not required to register in Nebraska. See A.W. ex rel Doe v. State et al., 865 F.3d 1014 (8th Cir. 2017). The appeals court concluded that “A.W., as a juvenile adjudicated delinquent, does not fall within the meaning of that term and therefore is not subject to [Nebraska’s state] SORA under § 29-4003(1)(a)(iv).” Id at 1020. This decision by the federal court of appeals has effectively been overturned by the Nebraska Supreme Court when it decided State v. Clemens, 300 Neb. 601, S-17-872 (2018).
Background on Clemens
In August 2016, Nathan Clemens was arrested following a disturbance in a bar. After conducting a background check, the officer determined that he: (1) was registered as a sex offender in Colorado; (2) was still required to be registered in Colorado; and (3) had last registered in Colorado on January 14, 2016. Further investigation revealed that Clemens was adjudicated as a juvenile in Colorado, that he had been living and working in Nebraska since June 2016, but that he had never registered as a sex offender in Nebraska. Clemens agreed to plead guilty to attempted violation of Nebraska’s Sex Offender Registration Act (SORA) and was sentenced to 270 days’ confinement followed by 9 months of post-release supervision.
On appeal Clemens argued that the district (trial) court committed plain error when it accepted the factual basis of his plea and sentenced him. Specifically, he asserted that he was not required to register as a sex offender in Nebraska, which meant he could not have been found guilty of a violation or attempted violation of SORA based on a failure to register. The Nebraska Supreme Court rejected all appellate claims and concluded that Nebraska’s SORA does require registration of adjudicated juveniles even though Nebraska law does not include adjudicated juveniles within the statutory definition of “sex offender.”
Nebraska Supreme Court’s Reasoning
The Eighth Circuit reasoned that whether one is required to register as a sex offender in the other jurisdiction depends on whether the registration requirement in that other jurisdiction is based on the person’s being a “sex offender” as that term is defined by Nebraska law. Because Nebraska’s SORA does not include a definition of the term “sex offender,” the Eighth Circuit looked to ascertain who would be required to register as a “sex offender” under Nebraska law. The Eighth Circuit then determined a criminal “conviction” is necessary to being considered a “sex offender” under Nebraska law, and it reasoned that because a juvenile adjudication is not considered a “conviction” under Nebraska law, one who is required to register in another state because of a juvenile adjudication is not a “sex offender” under Nebraska law. The court noted that section 29-4003(1)(a)(ii) uses the language of criminal law and essentially requires a person with a “conviction” for a sex offense in another jurisdiction to register in Nebraska. The court’s conclusion stated, “We read SORA’s § 29-4003(1)(a)(iv) to require registration in Nebraska where an individual is required to register in another village, town, city, state, territory, commonwealth, or other jurisdiction of the United States, regardless of whether the registration in the other jurisdiction is based on a juvenile adjudication…”
How Can This Be?
Both decisions are logical and well-reasoned, which means they can be explained by the judicial philosophy of the courts. The federal appeals court decided to look at the intent of Nebraska law as it is applied to adjudicated juveniles. Since Nebraska does not register juveniles adjudicated in the state of Nebraska, the Eighth Circuit reasoned that the legislature did not intend that juveniles be registered. The Nebraska Supreme Court looked at the actual wording of the statute, which is not the least bit ambiguous. Section 29-4003(1)(a) Nebraska Revised Statutes provides that SORA “applies to any person who on or after January 1, 1997: . . . (iv) [e]nters the state and is required to register as a sex offender under the laws of another village, town, city, state, territory, commonwealth, or other jurisdiction of the United States.” The court reasoned that if the legislature had intended to exempt adjudicated juvenile offenders convicted in other jurisdictions, they could easily have done so. This approach is referred to as “textualism” because the judicial inquiry is resolved by the actual text of the statute, which in this situation does include juveniles when the juvenile “enters Nebraska and is required to register in another jurisdiction.” Id. The Nebraska court chose not to look further than the text for legislative intent because that would be considered legislating from the bench.
*E. King Alexander, Jr. is Senior Co-Chair of the Amicus Committee of the Louisiana Association of Criminal Defense Lawyers and its District 3 Director. He is a NARSOL Advocate for the State of Louisiana. He is admitted to the bars of Louisiana, California, Texas, the United States Supreme Court, the U.S. Courts of Appeals for the Fifth and Eleventh Circuits, and the U.S. District Courts for the Western, Middle, and Eastern Districts of Louisiana, the Southern District of Texas, and the Western District of Michigan. He works as a Supervising and Life-Without-Parole Attorney at the Calcasieu Public Defenders Office in Lake Charles, Louisiana.
Larry serves as NARSOL’S treasurer and is publisher of the Digest. He writes the “Legal Corner” column for the Digest and legal analyses for the NARSOL website. He is a regular on the “Registry Matters” podcasts.