John Doe v. Mark Keel ( 2023 )


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  •                      THE STATE OF SOUTH CAROLINA
    In The Supreme Court
    John Doe, Plaintiff,
    v.
    Mark Keel, in his official capacity as Chief of the South
    Carolina State Law Enforcement Division, Defendant.
    Appellate Case No. 2022-000388
    ON CERTIFICATION FROM THE UNITED
    STATES DISTRICT COURT FOR THE DISTRICT
    OF SOUTH CAROLINA
    Opinion No. 28170
    Heard February 9, 2023 – Filed August 9, 2023
    CERTIFIED QUESTION ANSWERED
    David Allen Chaney Jr., of Greenville, and Meredith
    McPhail, of Columbia, both of American Civil Liberties
    Union of South Carolina, for Plaintiff.
    Andrew F. Lindemann, of Lindemann & Davis, P.A., of
    Columbia, for Defendant.
    JUSTICE JAMES: A person who is convicted of certain sex offenses and who
    resides in South Carolina must register as a sex offender with the sheriff in his county
    of residence. The South Carolina Law Enforcement Division (SLED) then publishes
    certain information about convicted sex offenders on the Sex Offender Registry (the
    Registry). Doe is a convicted sex offender who moved from South Carolina to
    Georgia in 2015. He commenced this action in federal court against the Chief of
    SLED, Mark Keel, contending in part that because he no longer resides in South
    Carolina, SLED should be prohibited from continuing to publish his name and
    information on the Registry.
    Pursuant to Rule 244, SCACR, the United States District Court for the District
    of South Carolina certified the following question to this Court:
    Does the South Carolina Sex Offender Registry Act (SORA) 1 permit
    the publication of out-of-state offenders—i.e., individuals with
    qualifying sexual offenses but who do not live in South Carolina—on
    the state's public sex offender registry?
    This question references an "out-of-state offender," which is defined by SLED
    regulations as "any person . . . who has been convicted in another state of any
    offense which can be reasonably interpreted as corresponding to those provided for
    in the South Carolina Code of Laws." 
    S.C. Code Ann. Regs. 73
    -200(C) (2012).
    Doe's stipulated status as a nonresident, not his status as an out-of-state offender, is
    relevant to the certified question. For the purposes of SORA, "a person who remains
    in this State for a total of thirty days during a twelve-month period is a resident of
    this State." 
    S.C. Code Ann. § 23-3-430
    (B). Therefore, we rephrase the certified
    question as follows:
    Does the South Carolina Sex Offender Registry Act (SORA) permit the
    publication of nonresident offenders—i.e., individuals with qualifying
    sexual offenses who do not live in South Carolina—on the state's public
    sex offender registry?
    We hold SORA and SLED regulations 2 require us to answer this question "yes."
    Background
    In 2011, Doe was convicted of an online sexual offense in Colorado and
    sentenced to probation. When he committed the offense, Doe was a resident of
    Greenville County and a student at the University of South Carolina. Because Doe
    resided in South Carolina, section 23-3-430 of SORA required him to biannually
    register with the sheriff in the county of his residence. Doe registered in South
    Carolina until he moved to Georgia in 2015. Because he moved out of state, Doe's
    obligation to register in South Carolina was suspended and his probationary sentence
    was transferred to Georgia. After Doe completed probation, he successfully
    1
    
    S.C. Code Ann. §§ 23-3-400
     to -555 (2007 & Supp. 2022).
    2
    
    S.C. Code Ann. Regs. 73
    -200 to -270 (2012).
    petitioned in Georgia to be relieved of his duty to register under Georgia law. SLED
    agrees Doe is not required to physically register in South Carolina because he does
    not reside in South Carolina. However, SLED continues to publish Doe's name,
    picture, offense, vehicle information, and last known address (collectively, name and
    identifying information) on the Registry.
    Discussion
    Doe argues various SORA provisions and accompanying regulations require
    us to answer the certified question in the negative. Keel contends these provisions
    and regulations require us to answer the question in the affirmative.
    "The cardinal rule of statutory construction is to ascertain and effectuate the
    intent of the legislature." Hodges v. Rainey, 
    341 S.C. 79
    , 85, 
    533 S.E.2d 578
    , 581
    (2000). The plain language of a statute is the best evidence of legislative intent.
    Grier v. AMISUB of S.C., Inc., 
    397 S.C. 532
    , 538, 
    725 S.E.2d 693
    , 697 (2012).
    "Under the plain meaning rule, it is not the court's place to change the meaning of a
    clear and unambiguous statute." Hodges, 
    341 S.C. at 85
    , 
    533 S.E.2d at 581
    .
    "[T]he Court generally gives deference to an administrative agency's
    interpretation of an applicable statute or its own regulation." Brown v. Bi-Lo, Inc.,
    
    354 S.C. 436
    , 440, 
    581 S.E.2d 836
    , 838 (2003). "If the statute or regulation 'is silent
    or ambiguous with respect to the specific issue,' the court then must
    give deference to the agency's interpretation of the statute or regulation, assuming
    the interpretation is worthy of deference." Kiawah Dev. Partners, II v. S.C. Dep't of
    Health & Env't Control, 
    411 S.C. 16
    , 33, 
    766 S.E.2d 707
    , 717 (2014) (quoting
    Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 
    467 U.S. 837
    , 843 (1984)).
    However, where the plain language of the statute "is contrary to the agency's
    interpretation, the Court will reject the agency's interpretation." Brown, 
    354 S.C. at 440
    , 
    581 S.E.2d at 838
    . Accordingly, the Court will defer to an agency's
    interpretation of a statute or regulation unless it is "arbitrary, capricious, or
    manifestly contrary to the statute [or regulation]." Kiawah, 
    411 S.C. at 34-35
    , 
    766 S.E.2d at 718
     (quoting Chevron, 
    467 U.S. at 844
    ); see Sierra Club v. S.C. Dep't of
    Health & Env't Control, 
    426 S.C. 236
    , 257, 
    826 S.E.2d 595
    , 606 (2019) (declining
    to give regulatory deference to the Department of Health and Environmental
    Control's interpretation of "migration of water onto" because it ran "afoul of what
    [the Court] conclude[d] is the clear meaning of the phrase").
    I.   SORA Provisions
    Section 23-3-400 of SORA provides,
    The intent of [SORA] 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
     (emphasis added). Read plainly, section 23-3-400 tells
    us several things. First, SORA's threshold purpose is to promote the public health,
    welfare, and safety of South Carolina citizens. Second, information placed on the
    Registry provides law enforcement with the tools needed to investigate criminal
    offenses. Third, statistics show "sex offenders often pose a high risk of re-
    offending." Fourth, the emphasized word "additionally" enhances—but does not
    restrict—both the purpose of SORA (promoting the public health, welfare, and
    safety of South Carolina citizens) and the role of the Registry (providing law
    enforcement with tools necessary to investigate criminal offenses). This Court has
    explained SORA exists to protect the public from sex offenders who may re-offend
    and to aid law enforcement in solving sex crimes. See, e.g., In re Justin B., 
    405 S.C. 391
    , 405, 
    747 S.E.2d 774
    , 781 (2013); State v. Walls, 
    348 S.C. 26
    , 31, 
    558 S.E.2d 524
    , 526 (2002).
    Section 23-3-400 must be read along with subsection 23-3-410(A), which
    provides:
    The registry is under the direction of the Chief of the State Law
    Enforcement Division (SLED) and shall contain information the chief
    considers necessary to assist law enforcement in the location of persons
    convicted of certain offenses. SLED shall develop and operate the
    registry to: collect, analyze, and maintain information; make
    information available to every enforcement agency in this State and in
    other states; and establish a security system to ensure that only
    authorized persons may gain access to information gathered under this
    article.
    
    S.C. Code Ann. § 23-3-410
    (A).
    In a mix of mandate and discretion, subsection 23-3-410(A) provides the
    Registry "shall contain information the chief considers necessary to assist law
    enforcement in the location of persons convicted of certain offenses." 
    Id.
    Subsection 23-3-410(A) further requires SLED to develop and operate the Registry
    by collecting, analyzing, and maintaining information and to make that information
    available to law enforcement agencies in South Carolina and other states. As noted
    below, section 23-3-420 directs SLED to promulgate regulations to implement
    SORA.
    As explained above, section 23-3-400 reflects the General Assembly's intent
    to "promote the state's fundamental right to provide for the public health, welfare,
    and safety of its citizens" by providing "law enforcement with the tools needed in
    investigating criminal offenses." One such tool is the bank of information that is to
    be collected, analyzed, maintained, and made available to all enforcement agencies
    in this State and in other states pursuant to subsection 23-3-410(A). The information
    can hardly be made available to other states if it is not maintained in South Carolina.
    Both section 23-3-400 and subsection 23-3-410(A) are silent as to the
    ramifications of a sex offender moving from South Carolina to another state. We
    conclude South Carolina has a legitimate and fundamental interest in promoting the
    public health, safety, and welfare of its citizens, regardless of imaginary boundary
    lines between states. For example (and there are many), a sex offender who resides
    in and registers in South Carolina might move to Savannah, Georgia or Charlotte,
    North Carolina and not remain in South Carolina "for a total of thirty days during a
    twelve-month period." 
    S.C. Code Ann. § 23-3-430
    (B). While that offender would
    not be deemed a resident of South Carolina for SORA purposes and would no longer
    be required to physically register, he or she could easily travel to and from South
    Carolina at convenient times for licit and illicit purposes. To summarily conclude a
    nonresident offender's information should be deleted from the Registry would ignore
    the purpose of SORA as stated in section 23-3-400.
    Doe relies heavily upon subsection 23-3-430(A) to advance his argument that
    a nonresident offender's name and identifying information should be removed from
    the Registry. Subsection 23-3-430(A) requires any person "residing in the State of
    South Carolina" who has been convicted of an offense listed in subsection 23-3-
    430(C) to register as a sex offender.3 
    S.C. Code Ann. § 23-3-430
    (A). Doe argues
    3
    As previously noted, subsection 23-3-430(B) provides that for the purposes of
    SORA, "a person who remains in this State for a total of thirty days during a twelve-
    subsection 23-3-430(A) indicates that if a nonresident offender is no longer required
    to physically register in South Carolina, the offender's name and identifying
    information should be deleted from the Registry. We disagree. Subsection 23-3-
    430(A) refers only to the physical act of registering; it does not require SLED to
    remove a nonresident offender's name and identifying information from the
    Registry. If the General Assembly chooses to amend SORA to achieve the result
    urged by Doe, it may do so. See Hampton v. Haley, 
    403 S.C. 395
    , 403, 
    743 S.E.2d 258
    , 262 (2013) (explaining the General Assembly has plenary power to make policy
    decisions "unless limited by some constitutional provision").
    Our court of appeals has similarly—and correctly—refrained from construing
    SORA in a manner inconsistent with its plain meaning. In Young v. Keel, a sex
    offender argued he was no longer required to physically register in South Carolina
    because his underlying conviction had been expunged. 
    431 S.C. 554
    , 557, 
    848 S.E.2d 67
    , 68 (Ct. App. 2020). The court of appeals addressed the several ways in
    which a sex offender can be relieved of the registration requirement. Writing for the
    court of appeals, then-Judge Hill (now Justice Hill) noted:
    While the text of SORA does not speak to the effect an expungement
    has on the registry requirement, the text is not unclear or ambiguous.
    We are mindful that "statutory interpretation begins (and often ends)
    with the text of the statute in question. Absent an ambiguity, there is
    nothing for a court to construe, that is, a court should not look beyond
    the statutory text to discern its meaning." Smith v. Tiffany, 
    419 S.C. 548
    , 555-56, 
    799 S.E.2d 479
    , 483 (2017) (citations omitted). The text
    of § 23-3-430 plainly lists only three exceptions to the registry
    requirement, and we hold § 22-5-920 does not, by statutory osmosis,
    create a fourth for expungement.
    Id. at 558, 848 S.E.2d at 69.
    The sex offender in Young sought to be relieved from the physical act of
    registering.   Interestingly, however, the "three exceptions to the registry
    requirement" discussed in Young are, by their very terms, vehicles for removing an
    offender's name and identifying information from the Registry, which is the relief
    month period is a resident of this State." SLED Regulation 73-200(J) defines
    "resident" as "any person remaining in South Carolina for a period of twenty-eight
    (28) consecutive days," to include but not be limited to "earning a salary, attending
    school or college, recreation, visitation, and the like." Because SLED concedes Doe
    is not a resident of South Carolina, we do not address these different definitions.
    sought by Doe. For example, subsection 23-3-430(E) provides, "SLED shall remove
    a person's name and any other information concerning that person from the sex
    offender registry" when the conviction is reversed, overturned, or vacated on appeal
    and final judgment to that effect has been rendered. Subsection 23-3-430(F)
    contemplates instances when an offender "may be removed from the registry" in the
    event of a pardon. Subsection 23-3-430(G) contemplates instances in which an
    offender may "be removed from the registry" in connection with a petition for a writ
    of habeas corpus or a motion for a new trial under Rule 29(b) of the South Carolina
    Rules of Criminal Procedure.
    Doe argues Young does not apply to his request because the sex offender in
    Young was attempting to be relieved of the physical act of registering and was not
    attempting to have his name and identifying information removed from the Registry.
    We disagree. The SORA provisions cited in Young require the removal of the
    offender's name and identifying information from the Registry, which, again, is the
    relief sought by Doe.
    In May of 2022, General Assembly enacted section 23-3-462, which added a
    fourth mechanism for the removal of a sex offender's name and identifying
    information from the Registry. Under section 23-3-462, "SLED shall remove the
    offender's name and identifying information from the sex offender registry" if the
    offender completes the requirements of section 23-3-462. Doe concedes he is not,
    at this time, entitled to relief under section 23-3-462.
    We are persuaded by the rationale employed in Young. Section 23-3-462 and
    subsections 23-3-430(E), (F), and (G) set forth four scenarios in which a sex
    offender's name and identifying information can be removed from the Registry.
    Doe's nonresident status does not, "by statutory osmosis" or otherwise, create a fifth.
    Young, 431 S.C. at 558, 848 S.E.2d at 69. If the General Assembly desires to create
    additional methods for removal of an offender's name and identifying information
    from the Registry, it may do so. However, we will not strain the plain meaning of
    SORA to create an avenue for removal where none exists. See Bryant v. City of
    Charleston, 
    295 S.C. 408
    , 411, 
    368 S.E.2d 899
    , 900-01 (1988) ("[I]n construing a
    statute its words must be given their plain and ordinary meaning without resort to
    subtle or forced construction to limit or expand the statute's operation."). Doe also
    argues "the certified question only involves temporary clerical removal of names
    from the [Registry] who have no active duty to register in South Carolina." To that
    end, Doe argues he seeks only a "temporary clerical removal" of his name from the
    Registry and should he reside in South Carolina in the future, his obligation to
    register in South Carolina would resume. That argument is meritless, as it would
    require us to ignore the grant of discretion given to the Chief of SLED by the General
    Assembly in subsection 23-3-410(A). To do this, we would be engaging in a forced
    construction of SORA.
    II.   Regulations
    In section 23-3-420, the General Assembly directed SLED to "promulgate
    regulations to implement the provisions of [SORA]." We would certainly take a dim
    view of any applicable regulations that expand SLED's authority beyond that granted
    in SORA. However, no regulations commit that evil, at least with respect to the
    certified question. Regulation 73-210 contains information to be gathered by various
    state entities and reported to the sheriff of the county in which the sex offender will
    reside. Regulation 73-220 prescribes procedures to be utilized by sheriffs' offices
    at the time of physical registration and re-registration. These procedures ensure
    transmission of required information by sheriffs to SLED. Regulation 73-240
    provides "SLED will ensure that all information maintained in the Registry is as up-
    to-date and accurate as possible." Regulation 73-260 lists twenty-three categories
    of identifying information that must be provided by the sex offender when
    registering. None of these regulations require SLED to remove Doe's name and
    identifying information from the Registry.
    Doe argues Regulation 73-250 entitles him to relief. We disagree. Regulation
    73-250 contemplates a sex offender's move to either another county in South
    Carolina or another state. Regulation 73-250(A) sets forth the responsibilities of
    county sheriffs when offenders move from one county to another. If an offender
    moves to another county, the sheriff of the county from which the offender moved
    must place the offender on inactive status, and the sheriff of the county in which the
    offender now lives must enter the offender into the Registry "as a new entry." 
    S.C. Code Ann. Regs. 75
    -250(A)(1)(2). If the offender moves to another state,
    Regulation 73-250(B) requires the sheriff of the county from which the offender
    moved to place the offender on inactive status and "notify the receiving state of the
    offender's relocation." Regulation 73-250 merely sets forth the record-keeping
    duties of county sheriffs when a registered sex offender moves from their county to
    either another county in South Carolina or, as in the case of Doe, another state. The
    placement of the nonresident offender on inactive status pursuant to 73-250(B) does
    not require SLED to remove the name and identifying information from the Registry.
    III.   Doe's Constitutional Arguments
    Doe asks this Court to address several federal constitutional claims pending
    in this litigation before the district court. Because these claims are beyond the scope
    of the certified question, we decline to address them.
    Conclusion
    Provisions for removing a sex offender's name and identifying information
    from the Registry are set forth in section 23-3-462 and subsections 23-3-430(E), (F),
    and (G). None of these provisions apply to Doe's circumstances. The regulations
    promulgated by SLED neither expand SLED's authority beyond that granted by the
    General Assembly in SORA nor require SLED to remove Doe's name and
    identifying information from the Registry. We therefore answer the certified
    question, as amended, in the affirmative.
    CERTIFIED QUESTION ANSWERED.
    BEATTY, C.J., KITTREDGE, FEW, JJ., and Acting Justice Kaye G. Hearn,
    concur.