Nathan Daniel Olsen v. State of Iowa ( 2024 )

IN THE SUPREME COURT OF IOWA
No. 22–0779
Submitted March 20, 2024—Filed June 28, 2024
NATHAN DANIEL OLSEN,
Appellant,
vs.
STATE OF IOWA,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, Thomas G. Reidel,
Judge.
The defendant seeks further review of the court of appeals decision that
affirmed the district court’s dismissal of his application to modify sex offender
registration requirements. DECISION OF COURT OF APPEALS VACATED;
DISTRICT COURT JUDGMENT REVERSED AND REMANDED.
McDermott, J., delivered the opinion of the court, in which Waterman,
Mansfield, and Oxley, JJ., joined. McDonald, J., filed a dissenting opinion, in
which Christensen, C.J., and May, J., joined.
Philip B. Mears of Mears Law Office, Iowa City, for appellant.
Brenna Bird, Attorney General, and Thomas Ogden, Assistant Attorney
General, for appellee.
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MCDERMOTT, Justice.
A person convicted of a sex offense must register as a sex offender if they
live, work, or attend school in Iowa. Registered sex offenders are subject to many
restrictions on their freedom, including limitations on where and with whom they
may live. Nathan Olsen was convicted of a sex offense in Wisconsin in 2009,
moved to Iowa for several years, and now lives in Illinois. Because he neither
lives, works, nor attends school in Iowa, he isn’t required to register as a sex
offender here. But he wishes to move back to Iowa and, if he did so, he would be
required to register here again. He filed an application in the district court asking
the court to modify his status as a sex offender and the registration requirements
that would apply to him in Iowa before he moves back so he could immediately
live with his partner and her children in Iowa—a living arrangement otherwise
prohibited for a registered sex offender.
But the modification statute allows for modification only if a person lives,
works, or attends school in Iowa, among other criteria. Olsen presently meets all
the other criteria for modification. The district court dismissed his application
for modification and the court of appeals affirmed the dismissal. We granted
Olsen’s application for further review. In this case, we must decide whether the
statute permitting only those who currently live, work, or attend school in Iowa
the opportunity to modify their sex offender registration requirements unlawfully
discriminates against nonresidents in violation of the Privileges and Immunities
Clauses of the Iowa and United States Constitutions.
I.
In August 2009, Olsen pleaded no contest in Wisconsin to second-degree
sexual assault of a minor and several related misdemeanors. He was eighteen
years old at the time. The court granted a deferred judgment and placed him on
probation. He wasn’t required to register as a sex offender under Wisconsin law,
3
which exempts those receiving deferred judgments from the requirement. Olsen
moved to Iowa later that year. Iowa law does not exempt those receiving deferred
judgments from the sex offender registry requirement. Based on the classifica-
tion of his offense, Olsen was required to register as a sex offender in Iowa for
ten years. See Iowa Code § 692A.106(1) (2021).
The obligations imposed on registered sex offenders are many. Among
other things, registrants must appear in person to register with the sheriff of
each county where they reside, work, or attend school. Id. § 692A.104(1). If reg-
istrants change residence, employment, or school, they must notify the county
sheriff within five business days. Id. § 692A.104(2). If they move to, work in, or
attend school in a new jurisdiction, they must notify the sheriff in the county of
their principal residence of their presence in the new jurisdiction. Id.
§ 692A.104(5). If they plan to leave the county for more than five days, they must
notify the sheriff in the county of their principal residence of their intentions and
provide the location and length of time that they’ll be staying out of the county.
Id. § 692A.105. They are required to update the sheriff within five days of any
changes in their internet identifiers. Id. §§ 692A.101(23)(a), .104(3). Every three
months, they must appear in person in the county where they were initially re-
quired to register to verify the location of their residence, employment, and
school. Id. § 692A.108(1)(c). They must also pay an annual registration fee of
$25. Id. § 692A.110(1).
If a registrant’s offense involved a minor, the offender is subject to an as-
sortment of exclusion zones and employment restrictions. The offender may not
be present on or loiter within 300 feet of the property of an elementary or sec-
ondary school. Id. § 692A.113(1)(a)–(b). The offender likewise may not be present
on or loiter within 300 feet of a public library without the prior written permis-
sion of the library’s administrator. Id. § 692A.113(1)(f)–(g). The offender may not
4
be present on or loiter within 300 feet of a childcare facility without prior written
permission from the facility administrator. Id. § 692A.113(1)(d)–(e). The offender
may not loiter on the premises of or work at any facility for dependent adults or
be present at an event that provides services or programming for dependent
adults. Id. § 692A.115(1). The offender may not be present on or loiter within
300 feet of any place intended primarily for the use of minors, such as a public
playground, public children’s play area, recreational or sport-related activity
area when in use by minors, public swimming pool when in use by minors, or
public beach when in use by minors. Id. § 692A.113(1)(h). And the offender may
not reside within 2,000 feet of a school or childcare facility. Id. § 692A.114(2).
An offender’s registration information is publicized on Iowa’s sex offender
registry website, which is “searchable by name, county, city, zip code, and geo-
graphic radius.” Id. § 692A.121(1). The website also publishes the offender’s full
name, photographs, date of birth, home address, and physical description, in-
cluding scars, marks, and tattoos. Id. § 692A.121(2)(b)(1)(a)–(e). The website pro-
vides the statutory citation and text of the offense and states whether the of-
fender is subject to residence restrictions, employment restrictions, and exclu-
sion zones. Id. § 692A.121(2)(b)(1)(f)–(h). Members of the public may also contact
the county sheriff’s office and request additional information about the offender.
Id. § 692A.121(5)(a). A member of the public that contacts the sheriff’s office and
provides the offender’s date of birth (publicized on the sex offender registry web-
site) may request a list of schools the offender has attended, the names and
addresses of current and former employers, locations and dates of any temporary
lodging, and vehicle information. Id. § 692A.121(5)(a)–(b).
Olsen had fulfilled his registration duties until being sentenced in 2017
for failing to report his purchase of a new vehicle within five business days as
required under Iowa Code § 692A.104(3), an aggravated misdemeanor. As a
5
result of this conviction, ten years were added to his registration term, pushing
his registration requirement to twenty years. See id. § 692A.106(4). Around the
same time, Olsen served four months in prison for an unrelated theft conviction.
The four months he served in prison do not count toward his registration period.
See id. § 692A.107(1).
After Olsen’s release from prison, he moved to Illinois, where he currently
resides. He was never required to register as a sex offender in Illinois. A sex
offender who moves out of Iowa is placed on “inactive status” and no longer re-
quired to register unless the offender moves back to the state. Id. § 692A.106(7).
Olsen seeks to move back to Iowa. He filed an application to modify his
requirement to register as a sex offender in Iowa in August 2021. The application
states his desire “to return to Iowa, . . . specifically Scott County, once he is no
longer required to register in Iowa.”
Olsen lives with his partner, Hailey, and their five children from prior re-
lationships. The father of Hailey’s three children and the mother of Olsen’s two
children both live in eastern Iowa. Olsen states that moving to Iowa would
strengthen their relationships with relatives here, and these relatives could also
assist Hailey during his frequent work travels as a truck driver. Because he and
Hailey are not married, if his family were to move to Iowa without Olsen first
receiving a modification, he would not be able to live with them because of his
sex offender status, as Iowa law prohibits a person who is required to register as
a sex offender from having custody or control over a child or minor unless the
person is the child’s parent or legal guardian. See id. § 726.6(1)(h). Modification
of his registration requirement would also help Olsen expand his trucking busi-
ness to customers within Iowa. Olsen contends that if he were to move to Iowa
and then file an application for modification with the district court, he would
6
need to live apart from his family for six months or more while awaiting a final
determination on his application.
Olsen has already completed preliminary steps toward his modification
goal. The Seventh Judicial District Department of Correctional Services assessed
Olsen and filed a report in February 2021 stating that Olsen satisfied the five-
year minimum threshold in September 2014 (before he moved to Illinois), has
completed all sex offender treatment programs required of him, and is considered
a “low risk to reoffend” based on three validated risk assessments approved by
the department of corrections (the STATIC-99R, ISORA, and STABLE 2007).
The State resisted Olsen’s application, asserting that he failed to state a
viable claim for relief because Iowa Code § 692A.128(3) provides that an appli-
cation for modification “shall be filed in the sex offender’s county of principal
residence.” Because Olsen does not live, work, or attend school in Iowa, the State
asserted that he does not have a principal residence here and thus cannot apply
for modification. See id. § 692A.101(20) (defining “principal residence” for a sex
offender as where the person lives, works, or attends school in the state). The
State further argued that Olsen is ineligible for modification because an applica-
tion may not be granted until at least five years after the offender is required to
register, see id. § 692A.128(2)(a), and Olsen’s additional ten-year requirement
restarted the clock on his five-year minimum.
Olsen argued that the residency requirement in § 692A.128(3) violates the
Privileges and Immunities Clauses of the Iowa and United States Constitutions
because it unlawfully discriminates against out-of-state residents. He also ar-
gued that the five-year period before an offender becomes eligible for modification
does not restart when time is added to an initial registration requirement.
The district court denied Olsen’s application. The court concluded that
because Olsen is not an Iowa resident and thus not subject to any ongoing
7
registration requirements, it lacked jurisdiction to enter any modification. If
Olsen wished to have his registration requirements modified, the court stated,
he would first need to move to Iowa, register, and then file an application for
modification. In grounding its holding on a jurisdictional defect, the district court
did not reach Olsen’s argument under the Privileges and Immunities Clauses.
Olsen appealed. We transferred the case to the court of appeals. It affirmed
the district court’s ruling, concluding that Olsen’s claim was not ripe for adjudi-
cation because his application sought to modify what it deemed a “hypothetical”
registration requirement predicated on his potential future return to Iowa. Olsen
sought further review, which we granted.
II.
Olsen argues that permitting Iowa residents the right to modify sex of-
fender registration requirements while denying out-of-state residents that same
right violates the Privileges and Immunities Clauses of both the Iowa and United
States Constitutions. Iowa law requires that an application for modification “be
filed in the sex offender’s county of principal residence.” Id. § 692A.128(3). A sex
offender’s “principal residence” includes “[t]he residence of the offender, if the
offender has only one residence in this state” or “[t]he place of employment or
attendance as a student, or both, if the sex offender does not have a residence
in this state.” Id. § 692A.101(20). A sex offender must file an application to mod-
ify registration requirements in district court. Id. § 692A.128(1). Olsen argues
that the statute’s residency restriction—which provides him no opportunity to
file for modification in an Iowa district court—unlawfully discriminates against
out-of-state residents.
The United States Constitution provides that “[t]he Citizens of each State
shall be entitled to all Privileges and Immunities of Citizens in the several States,”
U.S. Const. art. IV, § 2, cl. 1, and that “[n]o State shall make or enforce any law
8
which shall abridge the privileges or immunities of citizens of the United States,”
id. amend. XIV, § 1. Olsen asks for the same relief under the Iowa Constitution.
Because neither party has requested that we analyze Olsen’s claim under the
Iowa Constitution differently than the United States Constitution, we will apply
the federal analysis. See State v. Dudley, 766 N.W.2d 606, 624 (Iowa 2009).
The Privileges and Immunities Clause in the Federal Constitution was
designed to “plac[e] the citizens of each State upon the same footing with citizens
of other States, so far as the advantages resulting from citizenship in those States
are concerned.” McBurney v. Young, 569 U.S. 221, 226 (2013) (quoting Lunding
v. N.Y. Tax Appeals Tribunal, 522 U.S. 287, 296 (1998)). “This does not mean,”
the United States Supreme Court has cautioned, “that ‘state citizenship or
residency may never be used by a State to distinguish among persons.’ ” Id.(quoting Baldwin v. Fish & Game Comm’n, 436 U.S. 371, 383 (1978)). “Nor must
a State always apply all its laws or all its services equally to anyone, resident or
nonresident, who may request it so to do.” Baldwin, 436 U.S. at 383.
The district court in denying Olsen’s application to modify held that it
lacked jurisdiction over Olsen, as Olsen wasn’t currently subject to any Iowa
requirements and his underlying conviction didn’t take place in Iowa. The court
of appeals, although couching its holding as a problem of ripeness and not ju-
risdiction, similarly concluded that it couldn’t entertain Olsen’s modification re-
quest claim because, as a nonresident, Olsen wasn’t yet subject to Iowa’s regis-
tration requirements.
But these points miss the thrust of the privileges and immunities claim
that Olsen brings. An issue is ripe for adjudication if it involves “an actual, pre-
sent controversy, as opposed to one that is merely hypothetical or speculative.”
Barker v. Iowa Dep’t of Pub. Safety, 922 N.W.2d 581, 590 (Iowa 2019) (quoting
State v. Bullock, 638 N.W.2d 728, 734 (Iowa 2002)). There is no dispute that
9
Olsen’s return to Iowa would trigger a registration requirement; we know this
from the fact that Olsen previously had to register when he lived in Iowa. His
Iowa registration obligation lasts until at least 2030. There is thus nothing hy-
pothetical or speculative about whether Olsen would be subject to the registra-
tion requirements. Olsen’s constitutional challenge is that Iowa Code
§ 692A.128(3) grants Iowa residents a statutory right to access the courts for
modification, while he as a nonresident is denied this right.
“When examining claims that a citizenship or residency classification of-
fends privileges and immunities protections, we undertake a two-step inquiry.”
Sup. Ct. v. Friedman, 487 U.S. 59, 64 (1988); see also Democko v. Iowa Dep’t of
Nat. Res., 840 N.W.2d 281, 293 (Iowa 2013). First, we must determine whether
a challenged statute implicates a “fundamental” privilege or immunity. Democko,
840 N.W.2d at 293 (“The United States Supreme Court has declared the Clause
protects nonresidents from discrimination only with respect to ‘fundamental’
privileges or immunities.” (quoting United Bldg. & Constr. Trades Council v.
Mayor & Council of Camden, 465 U.S. 208, 218 (1984))).
The Supreme Court has long held that the right to access the courts of a
state is a fundamental right. See McBurney, 569 U.S. at 231 (“[T]he Privileges
and Immunities Clause ‘secures citizens of one State the right to resort to the
courts of another, equally with the citizens of the latter State.’ ” (quoting Mo. Pac.
R. Co. v. Clarendon Boat Oar Co., 257 U.S. 533, 535 (1922))); McKnett v. St. Louis
& S.F. Ry., 292 U.S. 230, 233 (1934) (“The privileges and immunities clause . . .
requires a state to accord to citizens of other states substantially the same right
of access to its courts as it accords to its own citizens.”). But this doesn’t mean
that a nonresident’s access to the courts must be identical to that of a resident.
See Canadian N. Ry. v. Eggen, 252 U.S. 553, 562 (1920). No violation occurs so
long as a nonresident’s access is “reasonable and adequate for the enforcing of
10
any rights” the nonresident may have, even if not “technically and precisely the
same in extent as those accorded to resident citizens.” Id. A claim for deprivation
of one’s constitutional right of access to courts must allege (1) an underlying
cause of action, whether anticipated or lost, and (2) official acts frustrating liti-
gation. Christopher v. Harbury, 536 U.S. 403, 415 (2002).
Iowa Code § 692A.128(3) eliminates Olsen’s ability to pursue his modifica-
tion claim because he doesn’t live, work, or attend school in Iowa. See id.
§ 692A.101(20). Olsen argues that he has met all the requirements necessary to
seek modification—except his residency status. The residency restriction im-
posed by § 692A.128(3) prohibits nonresidents from seeking the same funda-
mental privilege to access Iowa’s courts that a resident receives. Olsen thus sat-
isfies the first part of the analysis that the statute denies him, as a nonresident,
a fundamental privilege or immunity granted to residents.
We turn to the second prong of the test: “whether the state can show suf-
ficient justification for the discrimination.”1 Democko, 840 N.W.2d at 293; see
also Friedman, 487 U.S. at 65. Neither party presented evidence about any jus-
tification—or lack of one—for the statute’s different treatment of residents and
nonresidents in pursuing modification. The State argued that the law avoids
tasking district courts with deciding modification applications for nonresidents
who are not yet required to register in Iowa. And indeed, courts afford states
1The dissent includes a footnote suggesting that the Supreme Court in Sosna v. Iowa,
419 U.S. 393, 409–10 (1975), has already decided that residency requirements as a precondition
for filing suit are constitutional. Neither the parties nor the district court cite (let alone discuss)
Sosna. That’s perhaps because the Court in Sosna relied on the fact that states generally have
the right to dictate the grounds on which a marriage may be dissolved, since domestic relations
have “long been regarded as a virtually exclusive province of the States.” Id. at 404. Sosna men-
tions other cases, however, in which state residency requirements have been struck down as
unconstitutional (when imposed as a qualification for welfare payments, voting, and medical
care, for example). Id. at 406. To be sure, not all residency requirements are unconstitutional.
As we explain, though, whether this particular residency requirement—falling far beyond the
realm of domestic relations—is constitutional is not dictated by Sosna’s holding.
11
“considerable leeway in analyzing local evils and in prescribing appropriate
cures.” United Bldg., 465 U.S. at 222–23 (quoting Toomer v. Witsell, 334 U.S.
385, 396 (1948)). This latitude is particularly appropriate when a state “is merely
setting conditions on the expenditure of funds it controls.” Id. at 223. But the
record as it stands offers nothing to enable us to evaluate the State’s justifica-
tion. The record contains no information about the actual threat that permitting
nonresidents to apply for modification might pose to court operations or to the
state purse more generally.
The Supreme Court confronted a similar problem in United Building &
Construction Trades Council v. Mayor & Council of Camden, a case in which a
trade association challenged a city ordinance that required employees of
contractors on city projects to reside in the city. 465 U.S. at 210. After finding a
fundamental right at stake under the Privileges and Immunities Clause, the
Court turned to the second prong of the analysis, looking to whether the city had
shown a “substantial reason” for treating residents and nonresidents differently.
Id. at 222 (“[T]he inquiry in each case must be concerned with whether such
reasons do exist and whether the degree of discrimination bears a close relation
to them.” (alteration in original) (quoting Toomer, 334 U.S. at 396)). But the Court
was unable to conduct that analysis, stating:
[W]e find it impossible to evaluate Camden’s justification on the rec-
ord as it now stands. No trial has ever been held in the case. No
findings of fact have been made. . . . It would not be appropriate for
this Court either to make factual determinations as an initial matter
or to take judicial notice of Camden’s decay. We, therefore, deem it
wise to remand the case . . . .
Id. at 223.
A similar problem presents itself in this case. Although we review consti-
tutional challenges to a statute de novo, In re Detention of Schuman, 2 N.W.3d
33, 44 (Iowa 2024), we’re hamstrung in evaluating the justification for the
12
discriminatory treatment of nonresidents in this case on the record as it stands.
Neither party presented evidence on this point and the court made no findings
of fact. “[S]tatutes are cloaked with a presumption of constitutionality.” State v.
Hess, 983 N.W.2d 279, 284 (Iowa 2022) (quoting State v. Aschbrenner, 926
N.W.2d 240, 246 (Iowa 2019)). We will not declare statutes unconstitutional “un-
less they are shown to clearly, palpably and without doubt infringe upon consti-
tutional rights,” Chi. Title Ins. v. Huff, 256 N.W.2d 17, 25 (Iowa 1977) (en banc)
(quoting State v. Kueny, 215 N.W.2d 215, 217 (Iowa 1974)). We’re unwilling to
venture further where, as here, neither side has presented evidence regarding
the State’s justification for treating residents and nonresidents differently. We
thus remand for the parties to present evidence and for the district court to rule
on Olsen’s constitutional challenge in light of that evidence.
III.
An appellate court may affirm a district court ruling on any ground urged
by the prevailing party in the district court, even if the district court didn’t rely
on that ground in its ruling. Veatch v. City of Waverly, 858 N.W.2d 1, 7
(Iowa 2015). The State argued in the district court, and argues again on appeal,
that even if Iowa Code § 692A.128 applies to Olsen, he isn’t eligible for modifica-
tion because five years haven’t passed from the date of commencement of his
requirement to register as mandated under § 692A.128(2)(a). The district court,
while not directly addressing this argument, implicitly ruled against the State
when it held that Olsen met all the requirements to seek modification other than
the residency requirement.
Based on Iowa’s classification of Olsen’s sexual offense, Olsen was initially
required to register for ten years when he moved to Iowa in 2009. See id.
§ 692A.106(1). Under Iowa Code § 692A.128(2)(a), offenders with his
13
classification are ineligible for modification until five years have passed from
“[t]he date of the commencement of the requirement to register.”
When Olsen violated his registry requirements by failing to timely report
that he had purchased a new vehicle, an additional ten years were added to his
registration term. See id. § 692A.106(4). The State argues that the five-year pe-
riod before Olsen could seek modification restarted when his original ten-year
term of registration ended in January 2020. In other words, the State asserts
that Olsen isn’t eligible for modification again until January 2025—five years
after his second ten-year registration requirement began. Olsen, on the other
hand, argues that the additional ten-year registration term does not kickstart a
new five-year waiting period before he becomes eligible for modification.
Analysis of Olsen’s date of eligibility for modification centers on two stat-
utes. Iowa Code § 692A.128(2)(a) states that for sex offenders with Olsen’s of-
fense classification, “[a]n application [for modification] shall not be granted un-
less . . . [t]he date of the commencement of the requirement to register occurred
at least . . . five years prior to the filing of the application.” A different statute,
Iowa Code § 692A.106(4), imposes an additional ten years for registry violations.
It provides that “[a] sex offender who is convicted of violating any of the require-
ments of this chapter shall register for an additional ten years, commencing from
the date the offender’s registration would have expired.” Id.
Olsen’s conviction for violating his registration requirements in 2017
added, under § 692.106(4), ten years to his original ten-year term. But the State
argues that the mandatory five-year period to become eligible for modification
doesn’t begin until the additional ten years starts. Under this argument, even if
Olsen had never left Iowa, he could not have applied for modification until fifteen
years after his initial registration. Nowhere is this suggested in chapter 692A.
14
Reading the text of the statutes together reveals the error in the State’s
(and dissent’s) analysis. Under Iowa Code § 692A.128(2)(a), the five-year clock to
become eligible for modification begins at “[t]he date of the commencement of the
requirement to register.” The date of the commencement of Olsen’s registration
requirement was September 2009. For Olsen, there was only one “requirement
to register” and thus only one “commencement.” See id. Olsen was not required
to reregister when the ten years added to the end of his term started running.
His registration requirement continued uninterrupted.
The dissent contends that the “the” in the phrase “commencement of the
requirement to register” in § 692A.128(2)(a) specifies “a particular legal event
that triggered the requirement to register,” and that “the requirement” referred
to for Olsen must mean the ten years that were added based on the registration
violation. But why? The dissent’s claim begs the question by assuming that the
added ten years creates an event triggering the requirement to register. The word
“the” in this phrase could just as easily refer to the original requirement to
register. Unless a defendant later commits a separate sex offense, the
“commencement” of a defendant’s duty to register happens only once, even if
time is added on for a registry violation. Indeed, this is consistent with how the
Seventh Judicial District Department of Correctional Services—certainly no
stranger to modification applications or to applying these statutes—read the
requirement when it filed its report stating that Olsen satisfied the five-year
minimum threshold in September 2014.
The dissent also cites other provisions in chapter 692A that refer to “ini-
tial” and “subsequent” registration requirements to suggest that the ten-year ad-
dition constitutes a subsequent, and thus separate, registration requirement.
See id. §§ 692A.103(1), .104(1). But none of these provisions suggest any “sub-
sequent” registration is required when time is added for a registry violation under
15
§ 692A.106(4). Again, when a defendant commits a violation and time is added
to the end, there is no need to reregister later, and the “commencement” of the
duty to register remains the initial registration. Section 692A.103 suggests that
“subsequent” registration is associated with a subsequent sex offense conviction.
See id. § 692A.103(1) (referring to the duty to register “upon a first or subsequent
conviction” for “any sex offense”).
Olsen’s failure to timely report that he had purchased a new vehicle vio-
lated his sex offender registration requirements, but it didn’t trigger any duty to
register a second time as a sex offender. Section 692A.106 illuminates a couple
points on this path, stating that “[a] sex offender shall, upon a second or subse-
quent conviction that requires a second registration, or upon conviction of an
aggravated offense, or who has previously been convicted of one or more offenses
that would have required registration under this chapter, register for life.” Id.
§ 692A.106(5) (emphasis added). First, this statute shows that when the legisla-
ture wants to require a second registration, it directly says so in the statute.
Second, if Olsen’s 2017 conviction was a “conviction that requires a second reg-
istration” (and it’s not), then his requirement to register would be for life under
§ 692A.106(5), not an additional ten years.
The dissent’s suggestion that Olsen concedes in his brief the correctness
of the dissent’s interpretation confuses Olsen’s argument. Olsen’s argument is
that had he not violated his registration requirements in 2017, his period of reg-
istration would have ended in 2020. While this means that Olsen wouldn’t have
had to register but for his 2017 violation, it does not mean that Olsen has con-
ceded that the “commencement of the requirement to register” begins anew when
his original term would have ended. See id. § 692A.128(2)(a) (emphasis added).
Olsen strenuously disputes the notion that the ten-year addition imposes some
new registration requirement restarting the clock for modification eligibility.
16
Recent amendments to § 692A.128 that the dissent recites offer no aid to
the dissent’s interpretation. The legislature largely rewrote § 692A.128 in 2022.
See 2022 Iowa Acts ch. 1063, § 1 (codified at Iowa Code § 692A.128 (2023)). The
amendments were not made retroactive and thus do not apply to this case. The
amendments now provide a host of other requirements that severely limit a reg-
istrant’s opportunity for modification. Id. § 692A.128(2)(a) (2024). Given the sig-
nificant changes, the new statute offers little assistance in interpreting the prior
version of the statute that applies in this case.
The district court implicitly ruled in Olsen’s favor on this threshold
eligibility question when it held that “Olsen meets all of the requirements to seek
modification” other than the residency requirement. The Seventh Judicial
District Department of Correctional Services also concluded that Olsen satisfied
the requisite five-year period. Because Olsen waited the required five years from
the date of the commencement of the requirement to register, and because the
time added to his registration requirement does not create any new duty to
register, he is eligible to apply for modification. As a result, we reject the
alternative ground that the State offers to affirm the district court’s ruling.
IV.
For these reasons, we vacate the decision of the court of appeals, reverse
the district court judgment dismissing Olsen’s application to modify his sex of-
fender registration requirements, and remand for further proceedings consistent
with this opinion.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT
REVERSED AND REMANDED.
Waterman, Mansfield, and Oxley, JJ., join this opinion. McDonald, J., files
a dissenting opinion, in which Christensen, C.J., and May, J., join.
17
#22–0779, Olsen v. State
MCDONALD, Justice (dissenting).
I respectfully dissent. Pursuant to Iowa Code section 692A.128 (2021), the
district court has the authority to modify the sex offender registration
requirements on application of the offender. Becher v. State, 957 N.W.2d 710,
714 (Iowa 2021). Under the version of the Code in force when Olsen filed his
petition, the statutory modification procedure involved two steps. In the first
step, the district court must determine whether the sex offender is eligible to
apply for modification. See id. If the offender is eligible to apply for modification,
the district court has discretionary authority to grant or deny the modification
request. See Iowa Code § 692A.128(5) (“The court may modify the registration
requirements under this chapter.”); Becher, 957 N.W.2d at 714 (“The word ‘may’
ordinarily vests the trial court with discretion.”). Under the plain language of the
statute, Olsen was not eligible to apply for modification because an insufficient
amount of time had passed since the commencement of his current sex offender
registration obligation. The district court thus did not err in denying Olsen’s
application for modification, and I would affirm the judgment of the district
court.
In August 2009, Olsen pleaded no contest in Wisconsin to second-degree
sexual assault of a minor and several related misdemeanors. The Wisconsin
court granted Olsen a deferred judgment and placed him on probation. Olsen
was not required to register as a sex offender under Wisconsin law, which
exempted those receiving deferred judgments from the requirement.
Olsen was living in Iowa at the time of the Wisconsin conviction. Unlike
Wisconsin, Iowa law did not exempt those receiving deferred judgments from the
sex offender registration requirement. Based on the classification of his
Wisconsin conviction, Olsen was required to register as a sex offender in Iowa
18
for ten years. See Iowa Code § 692A.16(1) (2009). His initial registration period
commenced on August 25, 2009, and would have expired on August 25, 2019.
On February 10, 2017, Olsen was convicted of violating the sex offender
registry, first offense, in violation of Iowa Code section 692A.111(1) (2015). He
was incarcerated for approximately four months for that offense (among others,
it appears). When a “sex offender is incarcerated during a period of registration,
the running of the period of registration is tolled until the offender is released
from incarceration for that crime.” Id. § 692A.107. Because Olsen’s initial
registration period was tolled while he was incarcerated, his initial registration
period that would have expired on August 25, 2019, was extended until
January 8, 2020.
Olsen’s 2017 conviction for violating the sex offender registry had
additional consequences. As relevant here, his 2017 conviction triggered a
requirement that Olsen register as a sex offender for “an additional ten years,
commencing from the date the offender’s registration would have expired.” Id.
§ 692A.106(4). This new, additional registration obligation arising out of the
2017 conviction commenced on January 9, 2020, and it is set to expire on
January 9, 2030.
After Olsen was released from prison, he moved to Illinois, where he
currently resides. He was not required to register as a sex offender in Illinois. In
August 2021, Olsen filed a petition in Scott County to be removed from the sex
offender registry in Iowa. According to the petition, he sought “to return to Iowa,
. . . specifically Scott County.” Since he was not living in Iowa at that point, Olsen
also had no registration obligation in Iowa. A sex offender who is no longer a
resident of Iowa is placed on “inactive status” and no longer required to register
in Iowa until the offender reestablishes a residence in Iowa. See id. § 692A.106(7)
(2021).
19
The State resisted Olsen’s petition for modification. The State argued the
district court lacked jurisdiction over the petition because Olsen was not a sex
offender within the meaning of the Code because he did not work, live, or attend
school in Iowa. In addition, Iowa Code section 692A.128(3) provided that a
petition for modification “shall be filed in the sex offender’s county of principal
residence.” Since Olsen did not live, work, or attend school in Iowa, he did not
have a “principal residence” here and thus could not apply for modification. See
id. § 692A.101(20) (defining a “principal residence” for a sex offender as where
the person lives, works, or attends school in the state). The State further argued
that Olsen was ineligible for modification because a petition for modification
cannot be granted until at least five years after the commencement date of the
registration obligation. See id. § 692A.128(2)(a).
Olsen responded to the State’s motion. Olsen argued that the residency
requirement in the statute, if interpreted to prohibit his petition for modification,
violates the Privileges and Immunities Clause of the United States Constitution
and the privileges or immunities clause of the Iowa Constitution because it
unlawfully discriminates against out-of-state residents. With respect to the
mandatory five-year waiting period, Olsen argued that he was eligible for
modification because the five-year waiting period is measured from the date of
commencement of his initial registration in 2009 and not from the date of
commencement of his current registration obligation in 2020.
The district court denied Olsen’s application. The district court concluded
that because Olsen was not an Iowa resident and was not subject to any ongoing
registration requirement, it lacked jurisdiction to remove Olsen from the sex
offender registry prior to Olsen moving to Iowa. If Olsen wished to be removed
from the sex offender registry, the court stated, he would first need to move to
Iowa, register as a sex offender, and then file an application for modification. The
20
district court did not reach Olsen’s constitutional arguments under the Privileges
and Immunities Clauses or the State’s argument regarding the five-year waiting
period.
Like the district court, I do not think it necessary to reach Olsen’s
constitutional claims to resolve this case. See Simmons v. State Pub. Def., 791
N.W.2d 69, 74 (Iowa 2010) (“[W]e prefer to decide cases on statutory rather than
constitutional grounds . . . .”); City of Des Moines v. Lohner, 168 N.W.2d 779, 782
(Iowa 1969) (stating this court does “not consider constitutional questions unless
it is necessary for the disposition of the case”). Although I need not reach the
constitutional questions Olsen raises, it appears to me the majority’s
constitutional analysis is demonstrably erroneous. Chapter 692A does not make
a threshold distinction between residents and nonresidents of Iowa or citizens
and noncitizens of Iowa. Cf. United Bldg. & Constr. Trades Council v. Mayor &
Council of Camden, 465 U.S. 208, 216–17 (1984) (explaining that a residency
restriction that ipso facto excludes noncitizens triggers scrutiny under the
Privileges and Immunities Clause). The sex offender registry requirement applies
to those who reside in Iowa as well as those who work or attend school in Iowa
even if not a resident in Iowa. Iowa Code § 692A.101(20)(c). With respect to the
statutory right to petition to be removed from the registry, chapter 692A treats
Iowa residents and nonresidents and Iowa citizens and noncitizens the same:
only those on active status who are required to register can petition to be
removed from the registry. The statutory scheme thus does not violate the
Privileges and Immunities Clause. See McBurney v. Young, 569 U.S. 221, 231
(2013) (“The Privileges and Immunities Clause ‘secures citizens of one State the
right to resort to the courts of another, equally with the citizens of the latter
State.’ ” (emphasis added) (quoting Mo. Pac. R. Co. v. Clarendon Boat Oar Co.,
257 U.S. 533, 535 (1922))); State v. Yeoman, 236 P.3d 1265, 1268–69 (Idaho
21
2010) (holding that sex offender registration requirement did not violate the
Privileges and Immunities Clause); Commonwealth v. Becker, 879 N.E.2d 691,
701–02 (Mass. App. Ct. 2008) (rejecting privileges and immunities challenge
because “[t]he defendant was not barred from entering Massachusetts, and he
was not subjected to any harsher regulation than any other citizen of the
Commonwealth”); People v McGarghan, 852 N.Y.S.2d 615, 619 (Sup. Ct. 2007)
(dismissing privileges and immunities challenge to registration requirement).
The deficiency in the court’s constitutional analysis is revealed when one
recognizes the court gives Olsen more rights than sex offenders residing in Iowa.
Sex offenders residing in Iowa must be placed on the sex offender registry before
they can petition to be removed from the registry. Olsen, according to the court,
does not even need to be placed on the sex offender registry before he can petition
to be removed from the registry. It is unclear to me what federal or state
constitutional provision gives nonresidents of Iowa greater rights to access the
courts than residents of Iowa. In the end, I conclude that chapter 692A gives
Olsen “access to the courts of th[is] state upon terms which in themselves are
reasonable and adequate for the enforcing of any rights he may have.” Canadian
N. Ry. v. Eggen, 252 U.S. 553, 562 (1920). The statute provides him the same
right as all Iowans: register as a sex offender first and then petition to be removed
from the registry. Neither the Federal or State Constitution requires more.2
Turning to the statutory argument, to determine whether Olsen was
eligible for modification, I begin with the language of the statute at issue. See
2The court’s constitutional analysis errs in another respect. Even assuming the statute
contained a residency requirement, a residency requirement, even a durational residency
requirement, as a precondition to filing suit is constitutional where, as here, the area being
regulated is one traditionally left to the individual states. See Sosna v. Iowa, 419 U.S. 393, 409–
10 (1975) (affirming one-year durational residency requirement for filing petition for dissolution
of marriage); People v. Parker, 46 Cal. Rptr. 3d 888, 896 (Ct. App. 2006) (holding that five-year
residency requirement for sex offender to file a petition for rehabilitation and pardon did not
violate the privileges and immunities clause).
22
Doe v. State, 943 N.W.2d 608, 610 (Iowa 2020) (“Any interpretive inquiry thus
begins with the language of the statute at issue.”). Pursuant to Iowa Code
section 692A.128(1), a sex offender “may file an application in district court
seeking to modify the registration” only if the following preconditions are met:
a. The date of the commencement of the requirement to
register occurred at least two years prior to the filing of the
application for a tier I offender and five years prior to the filing of the
application for a tier II or III offender.
b. The sex offender has successfully completed all sex offender
treatment programs that have been required.
c. A risk assessment has been completed and the sex offender
was classified as a low risk to reoffend. The risk assessment used to
assess an offender as a low risk to reoffend shall be a validated risk
assessment approved by the department of corrections.
d. The sex offender is not incarcerated when the application
is filed.
e. The director of the judicial district department of
correctional services supervising the sex offender, or the director’s
designee, stipulates to the modification, and a certified copy of the
stipulation is attached to the application.
Id. § 692A.128(2). Since Olsen was a tier III offender, the contested issue in this
case is whether “[t]he date of the commencement of the requirement to register
occurred at least . . . five years prior to the filing of the application for a tier II or
III offender.” Id. § 692A.128(2)(a).
The plain language of the statute makes clear that Olsen was not eligible
for relief at the time he filed his application. Section 692A.128(2)(a) provides that
an offender is not eligible for modification unless five years had passed since “the
date of the commencement of the requirement to register.” Id. (emphasis added).
The use of the definite article “the” limits the term “requirement to register.” See
Nielsen v. Preap, 586 U.S. 392, 408 (2019) (“[G]rammar and usage establish that
23
‘the’ is ‘a function word . . . indicat[ing] that a following noun or noun equivalent
is definite or has been previously specified by context.’ ” (second alteration and
omission in original) (quoting Merriam-Webster’s Collegiate Dictionary 1294 (11th
ed. 2005))); Am. Bus. Ass’n v. Slater, 231 F.3d 1, 4–5 (D.C. Cir. 2000) (“[I]t is a
rule of law well established that the definite article ‘the’ particularizes the subject
which it precedes. It is a word of limitation as opposed to the indefinite or
generalizing force of ‘a’ or ‘an.’ ” (quoting Brooks v. Zabka, 450 P.2d 653, 655
(Colo. 1969) (en banc))); State v. Hohenwald, 815 N.W.2d 823, 830 (Minn. 2012)
(“The definite article ‘the’ is a word of limitation that indicates a reference to a
specific object.”). By definition, “the requirement to register” necessarily refers to
a particular legal event that triggered the requirement to register from which
Olsen seeks relief. For Olsen, the legal event that triggered his current
requirement to register was the 2017 conviction for violating the sex offender
registry. In the absence of that conviction, Olsen’s registration obligation would
have expired on January 8, 2020. It is thus clear that “the requirement to
register” from which he seeks relief commenced on January 9, 2020. Pursuant
to section 692A.128(2)(a), Olsen was not and is not eligible for relief until five
years after January 9, 2020, or January 9, 2025.
Olsen implicitly concedes this is the correct interpretation of the statute.
In support of his argument that Iowa has jurisdiction over his application for
modification, Olsen concedes that “the requirement to register” arises out of his
2017 conviction and not his 2009 conviction. His brief explains that his
“obligation to register in Iowa [is] based solely on the Iowa conviction from
Muscatine County for the registration violation in 2017.” His brief goes on to
state: “Olsen’s obligation based on the Wisconsin conviction was only 10 years.
That has now expired. But for the Muscatine County registration violation, Olsen
would no longer have an obligation in Iowa.” He continues, “It logically follows
24
that Olsen’s current registration obligation in Iowa is the direct result of an Iowa
conviction.” He concludes that his “obligation to register is directly related to an
Iowa conviction—the 2017 conviction in Muscatine.” Olsen is correct: “the
requirement to register” from which he seeks relief was imposed as a result of
his conviction for violating the sex offender registry in 2017.
Despite the plain language of the statute and Olsen’s repeated
concessions, the court nonetheless concludes that Olsen is eligible to seek
modification. As the court sees things, there is only one beginning to the
requirement to register: Olsen’s initial registration date. The court concludes that
the requirement to register triggered by Olsen’s 2017 conviction merely extended
his initial registration obligation and did not trigger a new obligation. But that
argument misapprehends how chapter 692A operates as directed in the statute.
The statute draws a distinction between initial and subsequent
registration requirements. Iowa Code section 692A.103(1) provides that a sex
offender shall be required to “register in compliance with the procedures
specified in this chapter.” Each separate registration requirement commences a
new registration period that requires the offender to register with the sheriff of
the relevant county “within five business days of being required to register.” Id.§ 692A.104(1). The requirement that the offender register with the sheriff applies
to both “the initial or subsequent registration” requirements. Id. § 692A.104(7).
The distinction between the initial and subsequent registration requirements
continues throughout chapter 692A. See id. § 692A.104(7) (“Except as provided
in subsection 8, the initial or subsequent registration and any notifications
required in subsections 1, 2, 4, 5, and 6 shall be by appearance at the sheriff’s
office and completion of the initial or subsequent registration or notification shall
be on a printed form, which shall be signed and dated by the sex offender.”
(emphases added)); id. (“If the sheriff uses an electronic form to complete the
25
initial registration or notification, the electronic form shall be printed upon
completion and signed and dated by the sex offender.” (emphasis added)); id.
§ 692A.108(1) (“A sex offender shall appear in person in the county of principal
residence after the offender was initially required to register, to verify residence,
employment, and attendance as a student, to allow the sheriff to photograph the
offender, and to verify the accuracy of other relevant information during the
following time periods after the initial registration . . . .” (emphases added)); id.
§ 692A.109(1)(i) (“When a sex offender is released from incarceration . . . the
court shall . . . [i]nform the sex offender that the offender must submit to being
photographed by the sheriff of any county in which the offender is required to
register upon initial registration and during any appearance to verify relevant
information required under this chapter.” (emphasis added)).
A recent amendment to section 692A.128 bolsters this point. See 2022
Iowa Acts ch. 1063, §1 (codified at Iowa Code § 692A.128 (2023)).
Section 692A.128(2) now provides that “[f]or an offender whose requirement to
register as a sex offender commenced prior to July 1, 2022,” like Olsen, “an
application shall not be granted unless . . . [t]he date of the commencement of
the requirement to register occurred at least . . . five years prior to the filing of the
application for a tier II or tier III offender.” Iowa Code § 692A.128(2)(a) (2024)
(emphasis added). In contrast, for those whose requirement to register
commenced after July 1, 2022, eligibility for modification is measured from the
date of initial registration:
3. For an offender whose requirement to register as a sex
offender commenced on or after July 1, 2022, an application shall
not be granted unless all of the following apply:
a. A period of time has elapsed since the offender’s initial
registration as follows:
26
(1)(a) Except as otherwise provided in subparagraph
division (b), a tier I offender initially registered at least ten years prior
to the filing of the application.
(b) A tier I offender who was under twenty years of age at the
time the offender committed a violation of section 709.4,
subsection 1, paragraph “b”, subparagraph (2), subparagraph
division (d), initially registered at least five years prior to the filing of
the application.
(2) A tier II or tier III offender initially registered at least fifteen
years prior to the filing of the application.
Id. § 692A.128(3) (emphases added). I infer from this recent amendment that
eligibility for modification as measured from “the requirement to register” in
subsection (2) means something different than the eligibility for modification as
measured from the “initial registration” in subsection (3). See Pulsifer v. United
States, 601 U.S. 124, 149 (2024) (describing the canon of “meaningful variation”
according to which, “[i]n a given statute, the same term usually has the same
meaning and different terms usually have different meanings”); Bribriesco-Ledger
v. Klipsch, 957 N.W.2d 646, 650 (Iowa 2021) (“A material variation in terms
suggests a variation in meaning.”).
In addition to being at odds with the statutory text and Olsen’s
concessions, the court’s interpretation of the statute is also at odds with the
purpose of the statute. See Maxwell v. Iowa Dep’t of Pub. Safety, 903 N.W.2d
179, 182–83 (Iowa 2017) (“We construe the statute ‘in light of the legislative
purpose.’ ” (quoting In re A.J.M., 847 N.W.2d 601, 605 (Iowa 2014))). “[T]he
purpose of the registry is protection of the health and safety of individuals, and
particularly children, from individuals who, by virtue of probation, parole, or
other release, have been given access to members of the public.” Id. (alteration
in original) (quoting State v. Iowa Dist. Ct., 843 N.W.2d 76, 81 (Iowa 2014)). If the
court were correct that an offender is eligible to pursue modification five years
27
after the initial registration date, then all offenders who violate the registry more
than five years after the initial registration date would be immediately eligible to
be removed from the registry despite a recent violation of the statute. To make
this point more concrete, under the court’s reading of the statute, Olsen would
have been eligible to be removed from the sex offender registry the day after he
was released from prison, only four months after the statute required him to
register for a second ten-year period and more than two years prior to the date
of commencement of the new registration obligation. Can it be that the
legislature wanted to protect the public by requiring those convicted of violating
the sex offender registry to register for an additional ten-year period due to their
demonstrated noncompliance with the sex offender registry but also wanted
those same persons to be immediately eligible to petition to be removed from the
registry even prior to the commencement date of the new ten-year registration
requirement? Clearly not. Surely, a construction that vitiates the statute’s
manifest object cannot be a correct interpretation of the statute. See Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 63
(2012) (explaining that an “interpretation that furthers rather than obstructs the
document’s purpose should be favored”).
For these reasons, I respectfully dissent.
Christensen, C.J., and May, J., join this dissent.