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Nebraska Supreme Court rules adjudicated juveniles must register

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.

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*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.

 

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Larry Neely

Larry serves as NARSOL'S treasurer, publisher of the Digest, and co-chair of the conference planning committee. He also hosts the "NARSOL in Action" and "Can They Do That?" webinars and is a regular on the "Registry Matters" podcasts.

This topic contains 3 replies, has 2 voices, and was last updated by  Timothy DA Lawver 3 weeks, 5 days ago.

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  • #46732 Reply

    Ed

    This case simply illustrates the byzantine nature of sex offense and registration laws in the United States. When the Congress initiated registration, it left the details to the states, which have widely varying and conflicting requirements. It is nearly impossible for a registered citizen (RC) to understand all, potentially painful, nuances. Apparently even the courts can’t agree. How could an RC be expected to? This is the only genre of crime I am aware of where a citizen’s mere presence can lead to criminal liability.

    An RC’s only viable options are to hunker down and never travel, or to preemptively register wherever one goes. Either option represents an undue burden on the RC. I wonder if there is not some legal principle, akin to “void for vagueness” or an “as applied” argument, that could be used as the basis for a class action lawsuit against the government; the stated intent of which would be to homogenize registration laws across the country,

    I realize the ultimate goal is to eliminate registration, and that this would only be an incremental step. However, such a lawsuit would raise the issue’s profile, and stimulate public awareness. This would be a vehicle with which to undo ignorance of many issues involving sex offenses.

    Any lawyers out there with creative ideas?

  • #46756 Reply

    Timothy DA Lawver

    The plain electronic indenturing regime is a state right recognized in the Doe cases. Alaska tho was used by Mr. Roberts in ex post review and test in Smith V , was in fact immediately rejected by Alaska’s own Supreme Court itself namely portions of the Wetterling act in OMINBUS94 and passed initially at state level. He used creative consolidation of the cases, Alaska’s case was deceptively unique from the other 49! He has to go.

    If a state can indenture man to machine’s upkeep a vastly more powerful FED can go how far?? Far enough to eavesdrop on your emails, gather metadata, and maintain two party security. Private firms truly free ride the market, and are the bigger problem.
    Schmeeeer! schmeeeeer! schmeeer! said the corporal, what merry men are weee?
    The courts follow their leadership by definition. To impede states USE OF A DATABASE impacts the federal Surveillance Saints. We will all be heading more about that soon. Prepare for DON2.0.

    Two years and counting in Michigan. Opt for trial.

  • #46757 Reply

    Timothy DA Lawver

    @the bench was used to redefine marriage! FUBAR!

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