Powell v. Keel ( 2021 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Dennis J. Powell, Jr., Respondent,
v.
Mark Keel, Chief, State Law Enforcement Division, and
The State of South Carolina, Appellants.
Appellate Case No. 2019-001063
Appeal From Richland County
G. Thomas Cooper, Jr., Circuit Court Judge
Opinion No. 28033
Heard November 19, 2020 – Filed June 9, 2021
AFFIRMED AS MODIFIED IN PART AND
REVERSED IN PART
Adam L. Whitsett and Paul Thomas Ahearn, III, both of
the South Carolina Law Enforcement Division; and
Attorney General Alan McCrory Wilson and Assistant
Attorney General Harley Littleton Kirkland, all of
Columbia, for Appellants.
Jonathan Edward Ozmint, of The Ozmint Firm, LLC, of
Columbia, and Elise Freeman Crosby, of Crosby Law
Firm, LLC, of Georgetown, for Respondent.
Blake Terence Williams, Amber Modestine Steele
Hendrick, and Daniel J. Westbrook, all of Nelson Mullins
Riley & Scarborough, LLP, of Columbia, for Amicus
Curiae South Carolina Office of Appellate Defense.
CHIEF JUSTICE BEATTY: This appeal arises from the circuit court's
grant of summary judgment in favor of Dennis Powell, Jr. ("Respondent") on his
claims challenging the internet publication and lifetime duration of his mandated
registration as a sex offender under the South Carolina Sex Offender Registry Act
("SORA"), S.C. Code Ann. §§ 23-3-400 to -555 (2007 & Supp. 2020). The circuit
court held SORA's lifetime registration requirement is punitive under the Eighth
Amendment and violates Respondent's rights to due process and equal protection.
The court also determined SORA does not permit publication of the State's sex
offender registry on the internet. Mark Keel, Chief of the State Law Enforcement
Division ("SLED"), and the State of South Carolina (collectively, "Appellants")
appeal the circuit court's decision. We hold SORA's lifetime registration
requirement is unconstitutional absent any opportunity for judicial review to assess
the risk of re-offending. We further hold subsection 23-3-490(E) permits
dissemination of the State's sex offender registry information on the internet.
Accordingly, we affirm as modified in part and reverse in part.
I. FACTS
On February 23, 2008, Respondent was arrested for criminal solicitation of a
minor under section 16-15-342 of the South Carolina Code (2015) for engaging in
anonymous internet chatroom conversations, which were graphically sexual in
nature, with an undercover police officer posing as a twelve-year-old girl as part of
an internet sting operation. In their final conversation, Respondent and the "teenage
girl" arranged to meet at a skating rink in Lexington. Thereafter, he drove by the
meeting place, was pulled over by law enforcement at a traffic stop, and was
subsequently arrested.
On December 1, 2008, Respondent was indicted for having "knowingly
through the Internet contact[ed] and communicate[d] with a person . . . whom he
reasonably believed to be [a] twelve year-old girl, for the purpose of or with the
intent of persuading, inducing, enticing, or coercing the person to engage or
participate in a sexual activity." On April 2, 2009, he pleaded guilty to the
indictment and was thereafter sentenced to two years' imprisonment suspended to
one year of probation. At sentencing, the court notified Respondent that he would
be required to register as a sex offender under SORA, which mandates lifetime
registration for sex offenses, including criminal solicitation of a minor. See S.C.
Code Ann. §§ 23-3-430(A), (C)(21), -460(A) (2007 & Supp. 2020). Respondent did
not file an appeal from his conviction or an application for post-conviction relief.
Respondent has registered as a sex offender since his sentencing in 2010 and
has not been arrested for any offense since that time. In 2011, Respondent
successfully completed his probationary sentence as well as outpatient psychiatric
treatment consisting of sixty hours of sex offender group therapy. Respondent was
assessed by Dr. William Burke, a licensed professional counselor, and Dr. Thomas
Martin, a licensed psychologist, both of whom determined he has a low risk of
recidivism.
On November 21, 2016, Respondent filed a petition in the circuit court for a
declaratory judgment, claiming SORA does not permit publication of the State's sex
offender registry on the internet, and the lifetime duration of his sex offender
registration constitutes excessive punishment in violation of the Eighth Amendment
of the United States Constitution and article I, section 15 of the South Carolina
Constitution, deprives him of due process and equal protection, and warrants
equitable relief in the form of his removal from the registry. After cross-motions for
summary judgment by the parties, the circuit court held a hearing and granted
Respondent's motion on all claims. Appellants filed a motion to alter or amend the
judgment, which the circuit court considered under Rule 59(e), SCRCP, and denied.
Thereafter, Appellants appealed to the court of appeals, which transferred the case
to this Court pursuant to Rules 204(a) and 203(d)(1)(A)(ii), SCACR.
II. STANDARD OF REVIEW
"This Court has a limited scope of review in cases involving a constitutional
challenge to a statute because all statutes are presumed constitutional and, if
possible, will be construed to render them valid." Curtis v. State, 345 S.C. 557, 569,
549 S.E.2d 591, 597 (2001). "A legislative act will not be declared unconstitutional
unless its repugnance to the constitution is clear and beyond a reasonable doubt."
Joytime Distribs. & Amusement Co. v. State, 338 S.C. 634, 640, 528 S.E.2d 647, 650
(1999). The party challenging the validity of a statute bears the burden of proving
it is unconstitutional. See Knotts v. S.C. Dep't of Nat. Res., 348 S.C. 1, 6, 558 S.E.2d
511, 513 (2002) (noting the appellant bore the burden of proving the statute
unconstitutional).
"Determining the proper interpretation of a statute is a question of law, which
this Court reviews de novo." Ferguson Fire & Fabrication, Inc. v. Preferred Fire
Prot., L.L.C., 409 S.C. 331, 339, 762 S.E.2d 561, 565 (2014). Thus, we may
interpret statutes "without any deference to the court below." Brock v. Town of Mt.
Pleasant, 415 S.C. 625, 628, 785 S.E.2d 198, 200 (2016) (quoting CFRE, LLC v.
Greenville Cty. Assessor, 395 S.C. 67, 74, 716 S.E.2d 877, 881 (2011)).
III. DISCUSSION
In 1994, the South Carolina General Assembly enacted our State's sex
offender registry law, SORA, S.C. Code Ann. §§ 23-3-400 to -555 (2007 & Supp.
2020). Such laws are commonly referred to as "Megan's Laws," named after seven-
year-old Megan Kanka from New Jersey, who was sexually assaulted and murdered
in 1994 by a neighbor who had prior convictions for sex crimes against children.
See Smith v. Doe, 538 U.S. 84, 89 (2003) (discussing the origins of "Megan's Law"
and characterizing Alaska's sex offender registration act as "Megan's Law"); see also
Wayne A. Logan, Database Infamia: Exit from the Sex Offender Registries, 2015
Wis. L. Rev. 219, 220 (2015) (noting sex offender registration laws are colloquially
known as "Megan's Laws"). The widely publicized crime prompted state
legislatures across the country to pass laws mandating registration of sex offenders.
See Hendrix v. Taylor, 353 S.C. 542, 547, 579 S.E.2d 320, 322 (2003) (observing
the movement to enact sex offender statutes arose following Megan's murder); see
also People v. Ross, 646 N.Y.S.2d 249, 250 (Sup. Ct. 1996) (noting "[e]very state
requires sex offenders to register").
In South Carolina, SORA requires any person, regardless of age, who has been
convicted of an enumerated crime, including criminal solicitation of a minor, to
register as a sex offender. S.C. Code Ann. § 23-3-430(A), (C)(21) (2007 & Supp.
2020). The Act also provides judges with discretion to order, as a condition of
sentencing, a person convicted of an offense not listed in the statute to be included
in the sex offender registry if good cause is shown by the solicitor. Id. § 23-3-
430(D). Moreover, subsection 23-3-460(A) generally mandates that a person
required to register as a sex offender must do so biannually for life. Id. § 23-3-
460(A). Registrants are required to register in person at the sheriff's department and
must provide information as prescribed by SLED. Id. §§ 23-3-450, -460(A). Any
person who fails to register or provide required notifications may be subject to
criminal prosecution. Id. § 23-3-470.
Notably, SORA does not provide any judicial review for registrants to
demonstrate their individual risk of recidivism and seek removal from the registry.
Instead, a person may only be removed from the registry under the following
circumstances: "the person's adjudication, conviction, guilty plea, or plea of nolo
contendere for an offense listed in subsection (C) was reversed, overturned, or
vacated on appeal and a final judgment has been rendered"; the person receives a
pardon for the offense requiring registration and it is "based on a finding of not
guilty"; or the person is granted a petition for a writ of habeas corpus or a motion for
a new trial, a new trial is ordered, and the person is acquitted. Id. § 23-3-430(E)–
(G). The complete absence of judicial review under South Carolina's legislative
scheme is the most stringent in the country. See Logan, supra, at 225 (noting "South
Carolina takes the most extreme position" with respect to the possibility of removal
from its sex offender registry); Restoration of Rights Project, 50-State Comparison:
Relief from Sex Offender Registration Obligations, Collateral Consequences
Resource Center (updated Nov. 2019), https://ccresourcecenter.org/state-
restoration-profiles/50-state-comparison-relief-from-sex-offender-registration-
obligations/ (compiling relief from registration provisions in every state); see also
Doe v. Dep't of Pub. Safety, 444 P.3d 116, 135–36 (Alaska 2019) (noting "[a]
majority of states now provide for individualized risk assessment hearings under
which registrants . . . can be relieved of registration obligations").
Here, Appellants contend the circuit court erred in finding SORA's lifetime
registration requirement violates Respondent's due process rights because it does not
afford him the opportunity for judicial review. Specifically, they argue this Court
has conclusively rejected prior due process claims under SORA. In Hendrix v.
Taylor, 353 S.C. 542, 552, 579 S.E.2d 320, 325 (2003), we considered whether
requiring an out-of-state sex offender to register in South Carolina "violated his due
process right[s] because it deprived him of a liberty interest without a hearing." We
held because "registering as a sex offender is a non-punitive imposition[,] . . . it
cannot constitute a deprivation of a constitutionally protected liberty interest." Id.Relying on Hendrix, we reached the same conclusion with respect to juvenile sex
offenders. See In re Ronnie A., 355 S.C. 407, 409–10, 585 S.E.2d 311, 312 (2003)
(holding registration of sex offenders, including juveniles, is a non-punitive
imposition that is rationally related to the legislature's intent). Under this precedent,
Appellants argue Respondent has no viable due process claim.
In contrast, Respondent contends SORA's lifetime registration requirement
implicates protected liberty interests similar to those recognized by this Court in
State v. Dykes, 403 S.C. 499, 744 S.E.2d 505 (2013). In that case, we considered a
Fourteenth Amendment due process challenge to the lifetime duration of SORA's
satellite monitoring requirement. Id. at 502, 744 S.E.2d at 507 (citing S.C. Code
Ann. § 23-3-540(C), (H) (2007 & Supp. 2020)). We determined that "lifetime
imposition of satellite monitoring implicates a protected liberty interest to be free
from permanent, unwarranted governmental interference." Id. at 506, 744 S.E.2d at
509. Applying rational basis review, we held the initial mandatory imposition of
satellite monitoring is constitutional because it is rationally related to the General
Assembly's stated purpose in section 23-3-400 (2007 & Supp. 2020). Id. at 507–08,
744 S.E.2d at 510. However, we also concluded that "it is unconstitutional to impose
lifetime satellite monitoring with no opportunity for judicial review" because the
absence of such opportunity to assess a risk of re-offending "is arbitrary and cannot
be deemed rationally related to the legislature's stated purpose of protecting the
public from those with a high risk of re-offending." Id. at 508–09, 744 S.E.2d at
510.
Similarly, we agree with Respondent that SORA's lifetime registration
requirement without judicial review violates due process. The Fourteenth
Amendment provides that "[n]o State shall . . . deprive any person of life, liberty, or
property, without due process of law." U.S. Const. amend. XIV, § 1; see also S.C.
Const. art. I, § 3 (providing no person shall "be deprived of life, liberty, or property
without due process of law"). Courts must "ensure[] that legislation which deprives
a person of a life, liberty, or property right have, at a minimum, a rational basis, and
not be arbitrary . . . ." In re Treatment & Care of Luckabaugh, 351 S.C. 122, 140,
568 S.E.2d 338, 346 (2002). When a fundamental right is not implicated, we require
the law to be "reasonably designed to accomplish its purposes." State v. Hornsby,
326 S.C. 121, 125–26, 484 S.E.2d 869, 872 (1997). We hold the lifetime imposition
of sex offender registration implicates a protected liberty interest similar to the one
we recognized in Dykes. Therefore, we must determine whether the requirement
"bears a reasonable relationship to any legitimate interest of government." Sunset
Cay, LLC v. City of Folly Beach, 357 S.C. 414, 430, 593 S.E.2d 462, 470 (2004).
Our General Assembly has outlined the purpose of the State's sex offender
registration provisions in section 23-3-400 as follows:
The intent of this article is to promote the state's fundamental right to
provide for the public health, welfare, and safety of its citizens.
Notwithstanding this legitimate state purpose, these provisions are not
intended to violate the guaranteed constitutional rights of those who
have violated our nation's laws.
The sex offender registry will provide law enforcement with the tools
needed in investigating criminal offenses. Statistics show that sex
offenders often pose a high risk of re-offending. Additionally, law
enforcement's efforts to protect communities, conduct investigations,
and apprehend offenders who commit sex offenses are impaired by the
lack of information about these convicted offenders who live within the
law enforcement agency's jurisdiction.
S.C. Code Ann. § 23-3-400 (2007 & Supp. 2020). This Court has previously
recognized the State's legitimate interest in requiring sex offender registration. See
In re Justin B., 405 S.C. 391, 408, 747 S.E.2d 774, 783 (2013) (characterizing the
goals of SORA's registration scheme as "a legitimate exercise of the State's police
power"); Hendrix, 353 S.C. at 550, 579 S.E.2d at 324 (noting that "classifying
Appellant as a sex offender is reasonably related to the legitimate state purpose of
protecting the public and aiding law enforcement in limiting the risk that sex
offenders pose to communities"); State v. Walls, 348 S.C. 26, 31, 558 S.E.2d 524,
526 (2002) (holding the General Assembly's intent in enacting SORA was "to protect
the public from those sex offenders who may re-offend and to aid law enforcement
in solving sex crimes"). We find the initial mandatory imposition of sex offender
registration satisfies the rational relationship test in light of the General Assembly's
stated purpose. See Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 4 (2003) (finding
due process does not require a pre-deprivation hearing where the registry
requirement is based on the fact of previous conviction); cf. Dykes, 403 S.C. at 508,
744 S.E.2d at 510 (holding the initial mandatory imposition of satellite monitoring
satisfies the rational relationship test).
Notwithstanding this finding, we hold SORA's lifetime registration
requirement without any opportunity for judicial review to assess the risk of re-
offending is arbitrary and cannot be deemed rationally related to the legislature's
stated purpose of protecting the public from those with a high risk of re-offending.
Indeed, "a likelihood of re-offending lies at the core of South Carolina's civil
statutory scheme." Dykes, 403 S.C. at 507, 744 S.E.2d at 510; see S.C. Code Ann.
§ 23-3-400 (2007 & Supp. 2020) ("Statistics show that sex offenders often pose a
high risk of re-offending."). However, the lifetime inclusion of individuals who have
a low risk of re-offending renders the registry over-inclusive and dilutes its utility
by creating an ever-growing list of registrants that is less effective at protecting the
public and meeting the needs of law enforcement. See State v. Letalien, 985 A.2d 4,
30 (Me. 2009) (Silver, J., concurring) (noting "the catch-all scope of the [sex
offender registration] statute's application dilutes its utility"); Elizabeth Reiner Platt,
Gangsters to Greyhounds: The Past, Present, and Future of Offender Registration,
37 N.Y.U. Rev. L. & Soc. Change 727, 752 (2013) ("As registries expand, they
become even less useful to both the public and law enforcement.").
Moreover, there is no evidence in the record that current statistics indicate all
sex offenders generally pose a high risk of re-offending. See Does #1-5 v. Snyder,
834 F.3d 696, 704 (6th Cir. 2016) (noting the record provided "scant support for the
proposition that SORA in fact accomplishes its professed goals" and that recent
empirical studies cast significant doubt on the pronouncement in Smith that sex
offenders' risk of recidivism is "frightening and high"). Because SORA does not
provide a mechanism to evaluate a registrant's individual risk of recidivism, it "is
not tied to the relative public safety risk presented by the particular registrants and
is excessive with respect to the purpose for which it was enacted." Letalien, 985
A.2d at 30 (Silver, J., concurring); see also Smith v. Doe, 538 U.S. 84, 116 (2003)
(Ginsburg, J., dissenting) (finding the scope of the Alaska Sex Offender Registration
Act, ASORA, "notably exceeds" its legitimate civil purpose); Doe v. State, 189 P.3d
999, 1017 (Alaska 2008) (finding ASORA's broad scope significant where the Act
"provides no mechanism by which a registered sex offender can petition the state or
a court for relief from the obligations of continued registration"). Thus, the registry
fails to promote the State's legitimate interest. We therefore hold SORA's lifetime
registration requirement is unconstitutional absent any opportunity for judicial
review to assess the risk of re-offending.1
We recognize the development of a judicial review process is a matter best
left to the General Assembly. See Moseley v. Welch, 209 S.C. 19, 26–27, 39 S.E.2d
133, 137 (1946) ("The supreme legislative power of the State is vested in the General
Assembly."); see also State v. Bani, 36 P.3d 1255, 1268 (Haw. 2001) ("[T]he
difficult and sensitive task of reaching an accommodation between the State's
substantial interest in requiring sex offender registration and notification, on the one
hand, and an offender's legitimate interest in ensuring against erroneous deprivation
of his or her liberty interest, on the other, is best left, in the first instance, to the
legislature."); Doe v. State, 111 A.3d 1077, 1101 (N.H. 2015) (noting the specifics
of a judicial review process for sex offenders requires "line-drawing" which is "a
task for the legislature"). To be sure, the General Assembly has ably established
judicial review in the sex offender context before, and such procedures do not
impede the legitimate goals of the legislation. See S.C. Code Ann. § 23-3-540(H)
(2007 & Supp. 2020) (outlining the process by which a person may be released from
SORA's satellite monitoring requirements); id. §§ 44-48-110 to -130 (2018)
(providing a petition process for sexually violent predators to be released from
commitment). Therefore, we are confident in the General Assembly's ability to
fulfill our request to fashion the particulars of the hearing process. Nevertheless, we
require the hearings at which sex offenders may demonstrate they no longer pose a
1
To the extent this opinion conflicts with Hendrix v. Taylor, 353 S.C. 542, 579
S.E.2d 320 (2003), it is hereby overruled.
risk sufficient to justify continued registration be conducted with reasonable
promptness and meet standards of fundamental fairness.
In this case, Respondent was afforded a hearing on March 26, 2019 during
which the circuit court assessed Respondent's risk of re-offending and determined
he no longer poses a risk sufficient to justify his continued registration as a sex
offender. As a result, the court ordered Respondent's removal from the sex offender
registry. After more than ten years of registration, we find Respondent was provided
an opportunity for judicial review sufficient to satisfy due process. See, e.g., id. §
23-3-540(H) ("Ten years from the date the person begins to be electronically
monitored, the person may petition . . . for an order to be released from the electronic
monitoring requirements of this section."). We note, however, that the hearing
afforded to Respondent in this case is by no means the only acceptable process.
Accordingly, we affirm the circuit court's decision ordering Appellants to
immediately remove Respondent from the sex offender registry.
Appellants also contend the circuit court erred in finding section 23-3-490 of
the South Carolina Code (2007 & Supp. 2020) does not authorize publication of the
State's sex offender registry on the internet.2 The statute provides for public
inspection of the sex offender registry by allowing the public to request and receive
a list of all registered sex offenders in the state, a list of those in a particular
geographic area, or information regarding a specific registrant. S.C. Code Ann.
§ 23-3-490(A)–(B) (2007 & Supp. 2020). In particular, subsection (E) of the statute
provides, "[f]or purposes of this section, use of computerized or electronic
transmission of data or other electronic means or similar means is permitted." Id.§ 23-3-490(E). The parties dispute whether the language of subsection (E) allows
Appellants to publish the sex offender registry on an internet website.
Specifically, Respondent argues "transmission" is not synonymous with the
"publication" of registry information, and if the legislature had intended to allow the
latter, it would have done so expressly. In fact, the term "publication" is used only
2
The General Assembly has permitted Appellants—specifically SLED—to
promulgate regulations to implement the provisions of SORA, and SLED
acknowledges in its regulations that it may only disseminate registry information in
accordance with adopted state law. See S.C. Code Ann. § 23-3-420 (2007 & Supp.
2020) ("The State Law Enforcement Division shall promulgate regulations to
implement the provisions of this article."); S.C. Code Ann. Regs. 73-230(A) (2012)
("Information maintained in the Registry will be disseminated in accordance with
adopted state law.").
in the section of the statute requiring sheriffs to provide the sex offender registry to
a newspaper. Id. § 23-3-490(A) ("The sheriff must provide to a newspaper with
general circulation within the county a listing of the registry for publication.").
Appellants, on the other hand, assert the language of subsection (E) sufficiently
authorizes the transmission of registry information to requestors through the internet.
Indeed, Appellants contend their interpretation of subsection (E) is supported by the
General Assembly's enactment of subsection 23-3-535(F)(1)(b) (Supp. 2020), which
requires school districts to provide a hyperlink to the sex offender registry website
on the school district's website, because it arguably demonstrates the legislature's
intent to permit publication of the registry on the internet. Moreover, Appellants
argue they are required to make registry information available on the internet
pursuant to federal law.3
We find both parties' interpretations of subsection (E) equally plausible,
indicating the language is ambiguous and does not clearly provide whether use of
3
In 2006, Congress enacted SORA's federal counterpart, the Sexual Offender
Registration and Notification Act ("SORNA"), 34 U.S.C.A. §§ 20901-20962 (2019),
which contains a provision seeking to require states to make their sex offender
registries available to the public on the internet. Id. § 20920(a) ("[E]ach jurisdiction
shall make available on the Internet, in a manner that is readily available to all
jurisdictions and to the public, all information about each sex offender in the registry.
The jurisdiction shall maintain the Internet site in a manner that will permit the
public to obtain relevant information for each sex offender by a single query for any
given zip code or geographic radius set by the user.").
However, we do not believe this provision of SORNA is dispositive of the
statutory interpretation issue before the Court. Indeed, the federal law does not
require states to implement its provisions because it was enacted pursuant to
Congress's spending power by placing conditions on the receipt of federal funds.
See 34 U.S.C.A. § 20927(a) (2019) ("[A] jurisdiction that fails, as determined by the
Attorney General, to substantially implement this subchapter shall not receive 10
percent of the funds that would otherwise be allocated for that fiscal year to the
jurisdiction . . . ."); Kennedy v. Allera, 612 F.3d 261, 269 (4th Cir. 2010) (noting
SORNA does not require the states to comply with its directives but rather gives
states a choice whether to do so or risk losing a portion of their funding). Therefore,
we find Appellants' reliance on the federal statute fails to support their argument that
they are authorized to disseminate registry information on the internet regardless of
whether SORA permits them to do so.
the internet for dissemination of registry information is permitted. Compare
Pennsylvania v. Williams, 832 A.2d 962, 980 (Pa. 2003) (holding the statute's
provision allowing for dissemination of sex offender registry information "by
electronic means" did not authorize public display of the information on the internet
but instead permitted "electronic transmission (for example, by email or fax
machine) to an individual who lodges a specific request for the data"), superseded
by statute, 42 Pa. Cons. Stat. § 9799.28 (2015), with Christina Locke & Bill F.
Chamberlin, Safe from Sex Offenders? Legislating Internet Publication of Sex
Offender Registries, 39 Urb. Law. 1, 11 (2007) (construing statutes in Michigan and
South Carolina, which use less direct language such as "computerized means," to
permit the dissemination of registry information on the internet). We are therefore
required to apply the rules of statutory interpretation in order to discover the
legislature's intent. See Cain v. Nationwide Prop. & Cas. Ins. Co., 378 S.C. 25, 30,
661 S.E.2d 349, 352 (2008) ("[W]hen a plain reading of the statute 'lends itself to
two equally logical interpretations, this Court must apply the rules of statutory
interpretation to resolve the ambiguity and to discover the intent of the General
Assembly.'" (quoting Kennedy v. S.C. Ret. Sys., 345 S.C. 339, 348, 549 S.E.2d 243,
247 (2001))).
To resolve the ambiguity in the statute, we review the legislative history of
section 23-3-490. See Limehouse v. Hulsey, 404 S.C. 93, 106, 744 S.E.2d 566, 573
(2013) ("[A]s the rules of statutory construction dictate, it is also necessary for courts
to consider the legislative history in order to effectuate the purpose of the statute.");
Kennedy, 345 S.C. at 348, 549 S.E.2d at 247 ("Where the language of an act gives
rise to doubt or uncertainty as to legislative intent, the construing court may search
for that intent beyond the borders of the act itself."). In 1998, the South Carolina
General Assembly passed Act 384, which, among other amendments, added
subsection (E) to section 23-3-490. See Act. No. 384, § 1, 1998 S.C. Acts 2310.
When subsection (E) was first enacted, subsection (A) required the person requesting
the information to provide his name in the request and permitted the information to
be disclosed only to the person making the request. Id. at 2308 ("A sheriff must
release information regarding a specific person who is required to register under this
article to a member of the public if the request is made in writing, on a form
prescribed by SLED, stating the name of the person requesting the information, and
the name or address of the person or persons about whom the information is sought.
The information must be disclosed only to the person making the request. (emphasis
added)).
However, when the General Assembly amended section 23-3-490 in 1999, the
requirements that the requestor provide his name in the request and that the
information be disclosed only to the individual requestor were removed from
subsection (A), while subsection (E) remained in its original form. See Act No. 110,
§ 2, 1999 S.C. Acts 1141. We find this amendment evinces the legislature's intent
for subsection (E) to broaden electronic dissemination of registry information to the
public. We also find persuasive the General Assembly's acknowledgement of
Appellants' use of the internet to disseminate the State's sex offender registry to the
public in subsection 23-3-535(F)(1)(b), which was enacted in 2008—ten years after
the addition of subsection 23-3-490(E). See Act No. 333, § 1, 2008 S.C. Acts 3299–
3300. Accordingly, we hold subsection 23-3-490(E) permits the use of the internet
to disseminate sex offender registry information to the public.4
4
We note, however, that a majority of jurisdictions specifically require
dissemination of sex offender registry information on the internet by statute. See
Ala. Code § 15-20A-8(a) (2018); Alaska Stat. § 18.65.087(a) (2020); Ariz. Rev. Stat.
Ann. § 13-3827 (2010 & Supp. 2020); Ark. Code Ann. § 12-12-913(j)(1)(C) (2016
& Supp. 2019); Cal. Penal Code § 290.46 (West 2014 & Supp. 2021); Colo. Rev.
Stat. § 16-22-111 (2020); Conn. Gen. Stat. § 54-258(a)(1) (2021); Del. Code Ann.
tit. 11, § 4336(p) (2015); Fla. Stat. § 775.21(7)(c) (2020); Ga. Code Ann. § 42-1-
12(i)(3)(E) (2014 & Supp. 2020); Haw. Rev. Stat. § 846E-3(f) (2014); Idaho Code
§ 18-8323(1) (2016); 730 Ill. Comp. Stat. Ann. 152/115 (West 2018); Ind. Code
§ 36-2-13-5.5 (Supp. 2013); Kan. Stat. Ann. § 22-4909 (2007 & Supp. 2020); Ky.
Rev. Stat. Ann. § 17.580 (LexisNexis 2019); Me. Rev. Stat. Ann. tit. 34-A,
§ 11221(9)(A) (2010 & Supp. 2021); Md. Code Ann., Crim. Proc. § 11-717(b)
(LexisNexis 2018); Mass. Ann. Laws ch. 6, § 178D (LexisNexis 2011 & Supp.
2021); Mich. Comp. Laws Ann. § 28.728 (West 2020 & Supp. 2021); Minn. Stat.
§ 244.052 (2020); Miss. Code Ann. § 45-33-49(4)(b)(i) (2015); Mo. Rev. Stat.
§ 43.650 (2016 & Supp. 2020); Nev. Rev. Stat. § 179B.250 (2019); N.H. Rev. Stat.
Ann. § 651-B:7(IV)(a) (2016); N.J. Stat. Ann. § 2C:7-13 (West 2015); N.M. Stat.
Ann. § 29-11A-5.1(E) (2020); N.Y. Correct. Law § 168-q (McKinney 2014 & Supp.
2021); N.C. Gen. Stat. § 14-208.15(b) (2019); Ohio Rev. Code Ann.
§ 2950.13(A)(11) (West 2020); S.D. Codified Laws § 22-24B-21 (2020); Tenn.
Code Ann. § 40-39-206(d) (2019); Tex. Code Crim. Proc. Ann. art. 62.005 (West
2018 & Supp. 2019); Utah Code Ann. § 77-41-110 (LexisNexis 2017); Vt. Stat. Ann.
tit. 13, § 5411a (2018); Va. Code Ann. § 9.1-913 (2018 & Supp. 2020); Wash. Rev.
Code § 4.24.550(5)(a) (2019); W. Va. Code Ann. § 15-12-2(h) (LexisNexis 2019);
Wis. Stat. § 301.46(5n) (2019–2020); Wyo. Stat. Ann. § 7-19-303(c)(iii) (2019).
IV. CONCLUSION
Although we find the State has a legitimate interest in requiring sex offender
registration and such registration is constitutional, SORA's requirement that sex
offenders must register for life without any opportunity for judicial review violates
due process because it is arbitrary and cannot be deemed rationally related to the
General Assembly's stated purpose of protecting the public from those with a high
risk of re-offending. Therefore, we hold SORA's lifetime registration requirement
is unconstitutional absent any opportunity for judicial review to assess the risk of re-
offending. We further hold subsection 23-3-490(E) permits dissemination of the
State's sex offender registry information on the internet. We hereby reserve the
effective date of this opinion for twelve (12) months from the date of filing to allow
the General Assembly to correct the deficiency in the statute regarding judicial
review. Nonetheless, because the circuit court has already held a hearing in this case
and determined Respondent no longer poses a risk sufficient to justify his continued
registration as a sex offender, Appellants shall immediately remove Respondent
from the sex offender registry.5
AFFIRMED AS MODIFIED IN PART AND REVERSED IN PART.
KITTREDGE, HEARN, FEW and JAMES, JJ., concur.
5
Appellants also challenge the circuit court's holdings regarding Respondent's
claims under the Eighth Amendment, the Equal Protection Clause, and the Ex Post
Facto Clause. We decline to address Appellants' remaining issues on appeal. See
Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591,
598 (1999) (noting an appellate court need not address remaining issues when
disposition of a prior issue is dispositive); see also In re McCracken, 346 S.C. 87,
92, 551 S.E.2d 235, 238 (2001) ("[I]t is this Court's firm policy to decline to rule on
constitutional issues unless such a ruling is required.").