Alex Jordan Vaughn v. State ( 2017 )

IN THE SUPREME COURT, STATE OF WYOMING
2017 WY 29
OCTOBER TERM, A.D. 2016
March 9, 2017
ALEX JORDAN VAUGHN,
Appellant
(Defendant),
v. S-16-0169
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Park County
The Honorable Steven R. Cranfill, Judge
Representing Appellant:
Office of the State Public Defender: Diane Lozano, State Public Defender; Tina
N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate
Counsel. Argument by Mr. Morgan.
Representing Appellee:
Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
Attorney General; James Michael Causey, Senior Assistant Attorney General;
John A. Brodie, Assistant Attorney General. Argument by Mr. Brodie.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.
[¶1] Appellant Alex J. Vaughn was adjudicated a delinquent juvenile for committing a
serious sexual offense that required him to register as an offender under the Wyoming
Sexual Offender Registration Act (WSORA). He subsequently failed to report changes
in his address as required, and pled guilty to two felony counts for failing to do so. His
plea was conditional and allowed him to appeal his convictions on constitutional grounds.
We affirm.
ISSUES
[¶2] 1. Is Wyo. Stat. Ann. § 7-19-301(a)(iii) of the WSORA unconstitutional as
applied to Appellant because it creates an irreconcilable conflict with Wyoming’s
Juvenile Justice Act (WJJA), Wyo. Stat. Ann. § 14-6-201 et seq.?
2. Does Wyo. Stat. Ann. § 7-19-301(a)(iii) of the WSORA violate Appellant’s
right to equal protection under the Wyoming Constitution because qualifying adjudicated
delinquents must register, while adults (or juveniles charged as adults) whose
prosecutions are deferred pursuant to Wyo. Stat. Ann. § 7-13-301 are not required to
register?
3. Does the WSORA’s lifetime registration provision in Wyo. Stat. Ann. § 7-19-
304(a) violate Appellant’s right to due process (1) because it encroaches upon his
protected right to reputation and confidentiality or (2) by creating an irrebuttable
presumption that an offender’s risk of reoffense is high?
4. Does Wyo. Stat. Ann. § 7-19-301(a)(iii) of the WSORA violate the United
States Constitution Art. 1, § 10 prohibition against enacting ex post facto laws?
FACTS
[¶3] As explained in more detail in the discussion below, see infra ¶¶ 13-15, the
WSORA requires individuals who have committed certain sex crimes to register as sex
offenders in Wyoming. See Wyo. Stat. Ann. §§ 7-19-301(a)(iii), (viii) & -302
(LexisNexis 2015). On July 1, 2011, the number of those subject to the act expanded, as
the definition of “convicted” of a sex offense under WSORA was amended to include
“adjudications as a delinquent for offenses specified in W.S. 7-19-302(j).” See 2011
Wyo Sess. Laws Ch. 179, § 1 (H.B. 23). This amendment not only affected qualifying
juveniles from that point on, but also applied to those that had been previously
adjudicated as delinquents for such serious sexual crimes. Id. The latter scenerio is
where Appellant’s circumstance falls.
1
[¶4] A few months before the amendment, in May of 2011, Appellant, then 17 years
old, appeared in juvenile court and was adjudicated a delinquent for a sexual offense as
provided in the WJJA, § 14-6-201. He was placed at the Wyoming Boys School,
released on December 1, 2012, and placed on supervised probation. After he completed
the requirements it had ordered, the juvenile court closed and sealed his file in April of
2013.
[¶5] Because the expanded definition of “convicted” applied to Appellant, he was
required to register as a sex offender when the amendment went into effect in July of
2011. He apparently complied with the reporting requirements until 2014. On July 8,
2014, Vaughn reported in person to the Park County Sheriff’s Office to register as a sex
offender as required by the WSORA. He informed the deputies that he lived in an
apartment complex in Cody, but he failed to return the required address verification form
to the sheriff’s office. As a result, two months later the sheriff reported Appellant to the
Wyoming Sex Offender Registry as non-compliant. In October of 2014, an investigator
with the Park County Sheriff’s Office learned that Appellant had moved from the Cody
apartment complex in August, and that he did not notify the sheriff’s office of this move.
[¶6] An information charging Appellant with two felonies for failing to keep his sex
offender registration information current was filed on December 1, 2014.1 Appellant
filed a motion to dismiss, asserting that the WSORA was unconstitutional. The district
court denied Appellant’s motion. He then entered a conditional guilty plea to the crimes
charged pursuant to a plea agreement, reserving the right to appeal the district court’s
denial of his motion to dismiss. He was sentenced to not less than two nor more than
four years of imprisonment, and he timely perfected this appeal.
STANDARD OF REVIEW
[¶7] Appellant’s issues are all based upon claims that the WSORA is unconstitutional.
“The question of whether a statute is constitutional is a question of law over which this
Court exercises de novo review.” Kammerer v. State, 2014 WY 50, ¶ 5, 322 P.3d 827,
830 (Wyo. 2014). Statutes are presumed to be constitutional, and we will resolve any
doubt in favor of constitutionality. Id.
DISCUSSION
The WSORA and the WJJA
[¶8] Appellant first argues that the non-penal, equitable and confidential character of
the WJJA conflicts irreconcilably with the WSORA’s registry requirements for
1
A sex offender who fails to comply with the Act is subject to criminal prosecution. Wyo. Stat. Ann. § 7-
19-307.
2
adjudicated juvenile offenders. He contends this conflict creates a constitutionally
impermissible ambiguity in these statutes, which ought to require that they be interpreted
in his favor due to the rule of lenity.2
[¶9] In order to address Appellant’s first issue, we must necessarily interpret both the
WSORA and WJJA. Rulings involving interpretation of statutes are reviewed de novo.
In re HLL, 2016 WY 43, ¶ 21, 372 P.3d 185, 189 (Wyo. 2016). Statutes that provide for
the care and discipline of juveniles are generally given a liberal and practical construction
in favor of the child’s welfare. KP v. State, 2004 WY 165, ¶ 27, 102 P.3d 217, 225
(Wyo. 2004) (quoting TPJ v. State, 2003 WY 49, ¶ 25, 66 P.3d 710, 715 (Wyo. 2003)).
The plain language of the statutes still controls our search for the legislature’s intent,
however. Id.
[¶10] We construe statutory provisions in pari materia, which requires that we give
effect to every word, clause, and sentence according to the interplay between the
provisions. Cheyenne Newspapers, Inc. v. City of Cheyenne, 2016 WY 125, ¶ 11, 386
P.3d 329, 333 (Wyo. 2016). We consider all statutes relating to the same subject or
having the same general purpose, and we strive to interpret them harmoniously. Id. “We
presume that the legislature has acted in a thoughtful and rational manner with full
knowledge of existing law, and that it intended new statutory provisions to be read in
harmony with existing law and as part of an overall and uniform system of
jurisprudence.” Id. (quoting Robert L. Kroenlein Trust ex rel. Alden v. Kirchhefer, 2015
WY 127, ¶ 22, 357 P.3d 1118, 1126 (Wyo. 2015)).
[¶11] With these principles in mind, we turn first to the WJJA, which Wyoming enacted
in the mid-20th Century. See Wyoming Compiled Statutes, § 1-701 et seq., (Arthur A.
Sandusky, comp. 1945, 1957 Cum. Supp.); 1951 Wyo. Sess. Laws Ch. 125 (H.B. 35).
Cases under the WJJA are not criminal; rather, they are special proceedings. KP, ¶ 27,
102 P.3d at 225. These proceedings are therefore equitable and not punitive. They are
intended to assure “treatment, training and rehabilitation” for children, and to “provide
for the care, the protection and the wholesome moral, mental and physical development
of children” coming within its provisions. Wyo. Stat. Ann. § 14-6-201(c)(ii)(C) and
(c)(iii); KP, ¶ 27, 102 P.3d at 225. Thus, “one of the purposes of a delinquency
proceeding is ‘[t]o remove, where appropriate, the taint of criminality from children
committing certain unlawful acts.’” K.C. v. State, 2011 WY 108, ¶ 16, 257 P.3d 23, 28
(Wyo. 2011) (quoting Wyo. Stat. Ann. § 14-6-201(c)(ii)(B)).
[¶12] Accordingly, “[t]he question for adjudication is whether the allegations contained
in the petition alleging delinquency are true.” K.C., ¶ 16, 257 P.3d at 28. If the
2
The rule of lenity provides that in construing an ambiguous criminal statute, a court should resolve any
ambiguity in favor of the defendant. Adekale v. State, 2015 WY 30, ¶ 25, 344 P.3d 761, 768 (Wyo.
2015). When a statute is unambiguous, the rule of lenity has no role to play. Crain v. State, 2009 WY
128, ¶ 10, 218 P.3d 934, 940 (Wyo. 2009).
3
allegations are found to be true, such a finding “is not deemed a conviction of guilt, but is
a determination that judicial intervention is necessary for the best interest and welfare of
the child and the public.” Wyo. Stat. Ann. § 14-6-225(b).3 “No order or decree pursuant
to this act shall be deemed a conviction of a crime or impose any civil disabilities, nor
shall it disqualify the child for any civil or military service application or appointment or
from holding public office.” Wyo. Stat. Ann. § 14-6-238. To prevent the public from
knowing of an adjudication of delinquency, the WJJA requires that the case and all
records flowing from it remain confidential, with certain strict exceptions. Wyo. Stat.
Ann. § 14-6-239.
[¶13] Now that we have considered the WJJA’s ethos and its requirements, we must
examine the WSORA. As we briefly noted above, see supra ¶ 3, the WSORA requires
individuals who have committed certain sexual crimes to register as sex offenders. In
1994, Wyoming joined the majority of other states in enacting legislation relating to sex
offender registration. Kammerer, ¶ 6, 322 P.3d at 830. Originally the WSORA only
applied to adults, but in 2011, the act was amended to include juveniles who were
adjudicated delinquent for certain serious sexual offenses. See 2011 Wyo. Sess. Laws
Ch. 179 (H.B. 23). The WSORA now includes the following language:
“Convicted” includes pleas of guilty, nolo contendere,
verdicts of guilty upon which a judgment of conviction may
be rendered and adjudications as a delinquent for offenses
specified in W.S. 7-19-302(j). “Convicted” shall not include
dispositions pursuant to W.S. 7-13-301.
Wyo. Stat. Ann. § 7-19-301(a)(iii) (emphasis added).
[¶14] Under the WSORA, qualifying sexual offenders must register with the county
sheriff in their county of residence. Wyo. Stat. Ann. § 7-19-302(a). “The basic
provisions of the Act require the registrant to provide identifying information, including
the registrant’s name, aliases, address, date and place of birth, social security number,
place and address of employment, a DNA sample, and any internet identifiers.”
3
Proceedings under the WJJA are different than criminal proceedings for adults, although juveniles are
afforded certain rights commonly found in criminal cases. One of the stated purposes of the WJJA is to
“provide a simple judicial procedure through which the provisions of this act are executed and enforced
and in which the parties are assured a fair and timely hearing and their constitutional and other legal rights
recognized and enforced.” Wyo. Stat. Ann. § 14-6-201(c)(vi). “The act specifically provides that children
in juvenile court proceedings have the right to notice of the charges against them, the right to counsel, the
privilege against self-incrimination, the right to confront adverse witnesses, and the requirement that
charges against them must be proven beyond a reasonable doubt.” SWM v. State, 2013 WY 49, ¶ 14, 299
P.3d 673, 677 (Wyo. 2013) (citing Wyo. Stat. Ann. §§ 14-6-222, -223, and -225). While the WJJA “does
not explicitly address the question, we have recognized that double jeopardy attaches in juvenile
proceedings.” SWM, ¶ 14, 299 P.3d at 677. An alleged delinquent is entitled to trial by jury at an
adjudicatory hearing. Wyo. Stat. Ann. § 14-6-223(c).
4
Kammerer, ¶ 7, 322 P.3d at 830. The offender is also required to “provide the date and
place of his conviction, the crime for which he was convicted, the age of each victim, the
name and address of educational institutions at which the registrant is employed or
attending school, the license plate number and description of his vehicle, and any phone
number at which the registrant may be reached.” Id. (citing § 7-19-302(a)). The
registrant must also be photographed and fingerprinted. Id.
[¶15] The WSORA also establishes a central registry for offenders, and it requires that
certain identifying information be made available to the public. Kammerer, ¶ 8, 322 P.3d
at 831 (citing § 7-19-303(a), (c)(iii)). The limited notice provisions that apply to
qualifying juveniles mandate that the offender’s information “be provided . . . to
residential neighbors within at least seven hundred fifty (750) feet of the offender’s
residence, organizations in the community, including schools, religious and youth
organizations . . . .” Wyo. Stat. Ann. § 7-19-303(c)(ii). “In addition, notification
regarding an offender employed by or attending school at any educational institution shall
be provided upon request by the educational institution to a member of the institution’s
campus community . . . .” Id. However, unlike adult offenders, a juvenile’s information
is not made available to the general public on the internet. Wyo. Stat. Ann. § 7-19-
303(c)(iii). The method of disseminating information does not change when a juvenile
sex offender reaches the age of majority, as Appellant had when he was charged in this
case. Id.
[¶16] After comparing the two acts, we understand how one might say there is an
irreconcilable tension between the confidentiality requirements of the WJJA, and the
requirement that information concerning an adjudicated delinquent be made available to a
limited circle of the public under the WSORA. We further recognize that the limited
public notification requirement for juveniles under the WSORA could stigmatize juvenile
offenders. But as we dig deeper into the purpose of the WJJA, we perceive a
congruency, rather than a conflict, between the two acts.
[¶17] From its inception, the WJJA was intended to serve the best interests of children
and to provide a path towards a promising future for delinquent youth.4 In 1997, our
legislature expanded the purpose of the WJJA to provide for the “protection of the public
and public safety.” 1997 Wyo. Sess. Laws Ch. 199, § 2 (H.B. 137A). The current
version of the WJJA maintains this purpose:
(c) This act shall be construed to effectuate the following
public purposes:
4
See, e.g., Wyoming Compiled Statutes, § 1-701 et seq. (Arthur A. Sandusky, comp. 1945, 1957 Cum.
Supp.).
5
(i) To provide for the best interests of the child and the
protection of the public and public safety;
(ii) Consistent with the best interests of the child and
the protection of the public and public safety[.]
Wyo. Stat. Ann. § 14-6-201(c)(i), (ii).
[¶18] The plain language of the WJJA shows that it is to be administered to assure
public safety as well as to promote the best interest of the child. Furthermore, as we have
already said, we presume that the legislature acted in a thoughtful and rational manner
with full knowledge of the WJJA, and that it was therefore aware it was limiting
protections under it by applying the WSORA to certain juvenile delinquents. Cheyenne
Newspapers, Inc., ¶ 11, 386 P.3d at 333. As a result, we can only conclude that the
registration and limited notification requirements for certain adjudicated delinquents
under the WSORA do not conflict with the purposes of the WJJA.5 Because the two acts
do not conflict, there is no constitutional violation as Appellant asserts.
Equal Protection
[¶19] Appellant also contends that § 7-19-301(a)(iii) of the WSORA violates his equal
protection rights under the Wyoming Constitution.6 He contends that adult offenders
whose charges are disposed of and who successfully complete a period of probation
under Wyo. Stat. Ann. § 7-13-301 are not considered to have been convicted, and
therefore are not required to register as sex offenders. See Wyo. Stat. Ann. § 7-19-
301(a)(iii). He goes on to argue that there is no such provision for juveniles under the
WJJA, and consequently the WSORA establishes a distinction based upon classification.
5
Other courts have reached the same conclusion. The Nevada Supreme Court recently found that “based
on Nevada’s long-standing recognition of public protection as one of the dual interests of the juvenile
system, we conclude that registration and community notification do not inherently conflict with the
purposes of Nevada’s juvenile justice system.” State v. Eighth Jud. Dist. Ct. (Logan D.), 306 P.3d 369,
381 (Nev. 2013). Similarly, the Illinois Supreme Court concluded that because the expanded purpose of
the juvenile courts to include public protection and juvenile accountability, the requirement that juvenile
sex offenders register—thereby subjecting them to limited community notification—did not conflict with
the policy and purpose of the juvenile system. In re J.W., 787 N.E.2d 747, 759 (Ill. 2003); see also In re
Richard A., 946 A.2d 204, 214 (R.I. 2008) (concluding “that the nature of the juvenile-justice system is
not significantly compromised by a sex-offender-registration requirement. As such, the Registration Act
is constitutional as applied to juveniles and respondent is not entitled to a jury trial.”); cf. United States v.
Juvenile Male, 670 F.3d 999, 1008 (9th Cir. 2012) (finding that although SORNA’s notification
requirement conflicted with the confidentiality provisions of the Federal Juvenile Delinquency Act,
Congress clearly intended to limit those confidentiality provisions); United States v. Under Seal, 709 F.3d
257, 262 (4th Cir. 2013) (same).
6
Wyoming’s equal protection provisions are contained in Article 1, §§ 2, 7, 34, and 35.
6
[¶20] There is in fact a provision under the WJJA that provides for deferred
adjudications for alleged delinquents. That provision states:
Abeyance of proceedings by consent decree; term of
decree; reinstatement of proceedings; effect of discharge
or completing term.
(a) At any time after the filing of a petition alleging a child
delinquent and before adjudication, the court may issue a
consent decree ordering further proceedings held in abeyance
and place a delinquent child under the supervision of a
probation officer. The placement of the child is subject to the
terms, conditions and stipulations agreed to by the parties
affected. The consent decree shall not be entered without the
consent of the district attorney, the child’s attorney, where
applicable, and the child and the notification of the parents.
Modifications to an existing consent decree may be allowed.
(b) The consent decree shall be in writing and copies given to
each of the parties. The decree shall include the case plan for
the child.
(c) A consent decree shall be in force for the period agreed
upon by the parties but not longer than one (1) year unless the
child is sooner discharged by the court.
(d) If prior to discharge by the court or expiration of the
consent decree, a child alleged to be delinquent fails to fulfill
the terms and conditions of the decree or a new petition is
filed alleging the child delinquent because of misconduct
occurring during the term of the consent decree, the original
petition and proceedings may be reinstated upon order of the
court after hearing and the matter may proceed as though the
consent decree had never been entered. If, as part of the
consent decree, the child made an admission to any of the
allegations contained in the original petition, that admission
shall be entered only if the court orders that the original
petition and proceeding be reinstated and the admissions, if
any, be entered. If the admission is entered, the court may
proceed to disposition pursuant to W.S. 14-6-226.
7
(e) If a consent decree is in effect and the child is in
placement, the court shall hold a six (6) month and twelve
(12) month review under W.S. 14-6-229.
(f) A child discharged by the court under a consent decree
without reinstatement of the original petition and proceeding
shall not thereafter be proceeded against in any court for the
same offense or misconduct alleged in the original petition.
Wyo. Stat. Ann. § 14-6-228.7
[¶21] If the court issues a consent decree ordering further proceedings held in abeyance,
and the juvenile complies with the terms of the decree, he will be discharged and never
adjudicated a delinquent, just as the defendant in a 301 deferral would. In such a case,
the juvenile would not be subject to the WSORA. There is no meaningful distinction
between a consent decree and a 301 deferral. For this reason alone, if not for others,
because juveniles are afforded the same opportunity as adults to enter into a consent
decree deferring their respective cases, the WSORA does not violate the Wyoming
Constitution’s equal protection clause, Art. 1 § 2.
Due Process Rights
[¶22] Appellant also contends that the WSORA’s lifetime registration provision violates
his due process rights under the Fourteenth Amendment to the United States Constitution
and Article 1, § 6 of the Wyoming Constitution as applied to him. This is so, he says,
because registering improperly encroaches on his protected liberty interest in his
reputation and the confidentiality provided for under the WJJA. He also claims that the
7
Deferring a juvenile adjudication is not a new remedy in Wyoming. In 1951, the WJJA provided:
Deferred Hearing.
b. If the court determines a deferred hearing would be for the best
interests of the child, and not in conflict with the best interests of the
public, the judge shall hold legal process with respect to the child in
abeyance for six months, contingent upon the good behavior of the child.
During this period of six months, the child shall be under the informal
supervision of either a probation officer or county welfare worker,
whichever the judge may direct. The court shall administratively close
the case upon the child’s satisfactory completion of the six month period,
or process the original petition forthwith where there is a subsequent
delinquency.
See Wyoming Compiled Statutes, § 1-711(b) (Arthur A. Sandusky, comp. 1945, 1957 Cum. Supp).
8
registration requirement creates an impermissible irrebuttable presumption that he is at
high risk to reoffend.
[¶23] We begin our analysis by turning to the relevant constitutional due process
provisions. The Fourteenth Amendment to the United States Constitution prohibits any
state from depriving “any person of life, liberty, or property, without due process of law.”
U.S. Const. amend. 4, § 1. Similarly, the Wyoming Constitution’s Due Process Clause
states that “[n]o person shall be deprived of life, liberty or property without due process
of law.” Wyo. Const. Art. 1, § 6. Both constitutions employ the same language, and we
have held that they afford equivalent protections. See Reiter v. State, 2001 WY 116, ¶
19, 36 P.3d 586, 592 (Wyo. 2001)
[¶24] Due process has both procedural and substantive components. Reiter, ¶ 20, 36
P.3d at 592. The two components are distinct because each has different aims and
imposes different constitutional limitations on the government’s power. See id. The
United States Supreme Court has explained: “[T]he Due Process Clause provides that
certain substantive rights—life, liberty, and property—cannot be deprived except
pursuant to constitutionally adequate procedures. The categories of substance and
procedure are distinct.” Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 541,
105 S. Ct. 1487, 1493, 84 L. Ed. 2d 494 (1985).
[¶25] Appellant does not advise us whether he claims the alleged due process violations
are substantive or procedural. Our understanding after reading his brief and listening to
oral argument is that the alleged due process violation regarding reputation and
confidentiality is a substantive claim, while his irrebuttable presumption theory is
procedural. We will address the arguments accordingly.
Protected Right to Reputation and Confidentiality
[¶26] The substantive component of due process “bars certain arbitrary, wrongful
government actions regardless of the fairness of the procedures used to implement them.”
Reiter, ¶ 20, 36 P.3d at 592-93 (citations and quotation marks omitted); see Laughter v.
Bd. of Cnty. Comm’rs for Sweetwater Cnty., 2005 WY 54, ¶ 42, 110 P.3d 875, 887 (Wyo.
2005). We have principally adopted “the two-tiered scrutiny employed by the federal
courts in analyzing substantive due process . . . challenges.” Reiter, ¶ 20, 36 P.3d at 593.
If a statute affects a fundamental interest, we must strictly scrutinize that statute to
determine if it is necessary to achieve a compelling state interest—often referred to as the
strict scrutiny test. Id. On the other hand, if the statute simply affects ordinary interests
in the economic and social welfare area, we only need to determine that it is rationally
related to a legitimate state objective, which is often referred to as the rational basis test.
Id.
9
[¶27] Fundamental rights are those liberties that are objectively deeply rooted in this
country’s history and tradition.8 Washington v. Glucksberg, 521 U.S. 702, 720-21, 117
S. Ct. 2258, 2268, 138 L. Ed. 2d 772 (1997). New fundamental rights are rarely found
“because guideposts for responsible decision making in this unchartered area are scarce
and open-ended.” Collins v. City of Harker Hts., Tex., 503 U.S. 115, 125, 112 S. Ct.
1061, 1068, 117 L. Ed. 2d 261 (1992); see also Glucksberg, 521 U.S. at 721, 117 S.Ct. at
2268. “By extending constitutional protection to an asserted right or liberty interest, we,
to a great extent, place the matter outside the arena of public debate and legislative
action.” Glucksberg, 521 U.S. at 720, 117 S.Ct. at 2267-68. Accordingly, courts must
“exercise the utmost care whenever [they] are asked to break new ground in this field,
lest the liberty protected by the Due Process Clause be subtly transformed into the policy
preferences” of individual judges. Id. (citations and quotation marks omitted).
[¶28] This Court has had several opportunities to consider whether a fundamental right
has been at issue. For example, we have determined that the right to associate with one’s
family is a fundamental constitutional right. Michael v. Hertzler, 900 P.2d 1144, 1147
(Wyo. 1995). Access to the courts has also been found to be a fundamental right. Mills
v. Reynolds, 837 P.2d 48, 54 (Wyo. 1992); see also Kordus v. Montes, 2014 WY 146, ¶
10, 337 P.3d 1138, 1141 (Wyo. 2014). An opportunity for an education is fundamental
as well. See In re RM, 2004 WY 162, ¶ 18, 102 P.3d 868, 874 (Wyo. 2004).
[¶29] Appellant does not contend that there is a fundamental right at issue under either
the United States or Wyoming constitutions regarding his reputation and his statutory
right to confidentiality of his adjudication as a juvenile under the WJJA. He provides no
basis for us to conclude that such a right is deeply rooted in our nation’s history and
tradition. Our own research does not reveal a reason to believe it is. See, e.g., State v.
Eighth Jud. Dist. Ct. (Logan D.), 306 P.3d 369, 375-76 (Nev. 2013) (applying rational
basis test to juvenile required to register as a sexual offender registration as no
fundamental right at issue); United States v. Juvenile Male, 670 F.3d 999, 1012 (9th Cir.
2012) (same); In re J.W., 787 N.E.2d 747, 757 (Ill. 2003) (same); Paul v. Davis, 424 U.S.
693, 701, 96 S. Ct. 1155, 1160, 47 L. Ed. 2d 405 (1976) (concluding reputation alone,
without being coupled with some more tangible interests, does not implicate any liberty
interests sufficient to invoke the procedural protection of the Due Process Clause). Thus,
we conclude that juveniles who have been convicted of serious sex offenses do not have a
fundamental right to be free from the registration and notification requirements set forth
in the WSORA, even if those require information concerning them and their offenses to
be disseminated in limited ways and to potentially remain in place for life.
8
The Supreme Court of the United States has recognized that fundamental rights include those
guaranteed by the Bill of Rights as well as certain liberty and privacy interests implicit in the due process
clause and other constitutional rights. See Glucksberg, 521 U.S. at 720, 117 S.Ct. at 2267. Such
important liberty interests include “the rights to marry, to have children, to direct the education and
upbringing of one’s children, to marital privacy, to use contraception, to bodily integrity, and to abortion.”
Id. (citations omitted).
10
[¶30] Because the WSORA does not implicate Appellant’s liberty in a manner that
impacts a fundamental right, we must decide only whether the WSORA’s registration
requirement as applied to Appellant as a juvenile is reasonably related to a legitimate
government interest. The rational basis test does not require that the law “be in every
respect logically consistent with its aims to be constitutional.” United States v.
Comstock, 560 U.S. 126, 151, 130 S. Ct. 1949, 1966, 176 L. Ed. 2d 878 (2010) (quoting
Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 487-88, 75 S. Ct. 461, 99
L. Ed. 563 (1955). Rather, “[i]t is enough that there is an evil at hand for correction, and
that it might be thought that the particular legislative measure was a rational way to
correct it.” Id.
[¶31] We find the WSORA’s registration requirement for qualifying juveniles is
rationally related to a legitimate government interest. As we have explained above, see
supra ¶¶ 11-12, although the WJJA promotes the best interests of minors in our juvenile
court system, its purpose is also for “the protection of the public and public safety.”
Wyo. Stat. Ann. § 14-6-201(c)(i), (ii). In protecting the public, the WSORA aids in the
prevention, avoidance, and investigation of future sex offenses. Kammerer, ¶ 28, 322
P.3d at 838; see also Snyder v. State, 912 P.2d 1127, 1132 (Wyo. 1996). Consistent with
this purpose, our legislature determined that juveniles adjudicated for offenses under § 7-
19-302(j)—which are the most serious of sexual offenses—must register in order to
protect the public.
[¶32] The juvenile’s registration information is available only to a limited group of the
public, including certain neighbors, schools and organizations. Wyo. Stat. Ann. § 7-19-
303(c)(ii); see also Kammerer, ¶ 8, 322 P.3d at 831. Notification to an educational
institution the juvenile offender is attending or where he works must also be provided
upon request by the institution. Id. However, unlike an adult, a juvenile’s information is
not made available to the general public through the public registry on the internet. Wyo.
Stat. Ann. § 7-19-303(c)(iii); compare Kammerer, ¶ 8, 322 P.3d at 831. Providing a
juvenile offender’s information to a limited group of people whose safety may be
compromised constitutes a reasonable method of protecting the public.
[¶33] We cannot say that the registration requirement of the WSORA, as applied to one
who offended as a juvenile as Appellant did, is irrational.
Irrebuttable Presumption
[¶34] Appellant argues that while he and others who offended as juveniles are afforded
the necessary procedural due process in the underlying delinquency adjudication, he is
denied due process because he cannot challenge whether he should be required to register
under the WSORA after adjudication. The absence of a meaningful process, Appellant
11
posits, turns the requirement that Appellant register under the WSORA into an
irrebuttable presumption that he is at high risk to reoffend.
[¶35] We have previously noted that irrebuttable presumption claims sometimes arise as
a matter of substantive due process. See Moreno v. Dep’t of Revenue & Taxation, 775
P.2d 497, 500-01 (Wyo. 1989). Referring to older United States Supreme Court
precedent on that topic, this Court commented that “those holdings represent anomalies
in substantive due process and equal protection analysis.” Id. at 500. This Court further
recognized that these cases do “not consider the character of the alleged life, liberty, or
property interest affected” and “might be interpreted to inject a strict judicial scrutiny
standard of review into the substantive due process analysis every time a litigant can
locate a conclusive statutory presumption.” Id. The Court went on to comment that such
an “approach would wreak havoc with traditional due process and equal protection
analyses which focus first on the asserted life, liberty, or property entitlement involved or
an alleged invidious discrimination against a discrete minority, or infringement of a
fundamental constitutional right.” Id.
[¶36] This Court further explained that the United States Supreme Court has since
backed away from a per se application of the irrebuttable presumption doctrine in favor
of the traditional substantive due process analysis. Id. We noted that the doctrine should
not be applied “in a way that might circumvent this court’s established substantive due
process or equal protection analysis.” Id. at 501. The Court concluded that “[a] statute
violates substantive due process when a litigant with standing shows that the challenged
statute adversely affects a recognized life, liberty, or property entitlement and in doing so
does not promote a legitimate state objective by reasonable means.” Id.
[¶37] We do not find this to be an issue of substantive due process, which renders the
irrebuttable presumption cases inapplicable. Appellant does not indicate otherwise.
Thus, as we have already noted, we look to procedural due process requirements.
[¶38] The guarantee of procedural due process assures that there will be fair and
adequate legal proceedings. This Court has explained that “[p]rocedural due process
principles require reasonable notice and a meaningful opportunity to be heard before
government action may substantially affect a significant property [or liberty] interest.”
Pfeil v. Amax Coal W., Inc., 908 P.2d 956, 961 (Wyo. 1995). To “assess whether an
individual was denied procedural due process, courts must engage in a two-step inquiry:
(1) did the individual possess a protected interest such that the due process protections
were applicable; and, if so, then (2) was the individual afforded an appropriate level of
process.” Crofts v. State ex rel. Dep’t of Game & Fish, 2016 WY 4, ¶ 27, 367 P.3d 619,
626 (Wyo. 2016) (quoting Montgomery v. City of Ardmore, 365 F.3d 926, 935 (10th Cir.
2004)).
12
[¶39] Appellant relies on a recent decision from the Pennsylvania Supreme Court, which
recognized that the right to reputation was fundamental under that state’s constitution. In
re J.B., 107 A.3d 1, 16 (Pa. 2014). Based upon that premise, it held the application of the
sex offender registration act’s lifetime registration requirements upon adjudication of
specified offenses violates a juvenile offender’s due process rights by utilizing an
irrebuttable presumption. Id. at 19-20.
[¶40] Pennsylvania’s law is distinguishable, and In re J.B. is inapplicable in the instant
case. Cf. In re A.C., 54 N.E.3d 952, 964 (Ill. App. 2016). That is because in Wyoming,
reputation alone has never been recognized as a fundamental right under our state
constitution. See Crofts, ¶¶ 29-30, 367 P.3d at 626; cf. Paul, 424 U.S. at 701-10, 96 S.Ct.
at 1160-65. Another jurisdiction, Illinois, has dealt with a similar issue and provides
guidance.
[¶41] An Illinois appellate court faced the question of whether that state’s sexual
offender registration act violated procedural due process because it did not afford juvenile
offenders the opportunity to be heard on the issue of their continuing danger to the
community before requiring them to register. In re J.R., 793 N.E.2d 687, 697 (Ill. App.
2003). It determined that the registration act required “sex offenders, including juvenile
sex offenders, to register not based on dangerousness, but based upon the fact the
offender was adjudicated delinquent or convicted of a sex offense.” Id. Because the
disclosure provisions were triggered upon adjudication, it was irrelevant whether the
juvenile was a continuing danger. Id.; see also In re A.C., 54 N.E.3d at 964. We find
that court’s reasoning persuasive, and we will follow its lead in the instant case.
[¶42] Appellant could only be adjudicated delinquent of a sex offense after a trial (an
adjudicatory hearing), as he concedes. However, procedural due process does not entitle
him—a juvenile found delinquent of committing a serious sex offense—to a second
hearing to demonstrate that he is not a high risk to reoffend. Whether he is a continuing
danger is simply not germane to the duty to register as required by the WSORA. The
WSORA’s registration requirement is reasonable and consistent with a state’s exercise of
its police power to protect the safety and general welfare of the public from those
committing serious sexual offenses. See Snyder, 912 P.2d at 1132. Appellant has
directed us to scholarly resources which suggest that juvenile sex offenders are not at as
great a risk as adult sex offenders to harm others. However, the legislature decided that a
juvenile offender who commits the kind of offense he was held to have committed should
be required to register under the WSORA. As already noted, this was a permissible
choice for that policy-making branch of our government to make.
[¶43] In sum, Appellant has failed to establish that the WSORA’s registration
requirement violates his due process rights, substantive or procedural, under the United
States and Wyoming constitutions.
13
Ex Post Facto
[¶44] This Court has on other occasions considered whether the WSORA violates the
United States Constitution, Art. 1, § 10, prohibition against enacting ex post facto laws as
it applies to adult offenders.9 See Kammerer, ¶¶ 9-32, 322 P.3d at 831-39; Snyder, 912
P.2d at 1130-31. Most recently, in Kammerer, we began our analysis by recognizing that
the constitutional prohibition against ex post facto laws only applies to statutes that
impose penalties. ¶¶ 9-32, 322 P.3d at 831-39. We explained:
In deciding whether or not a law is penal, this Court has
generally based its determination upon the purpose of the
statute. If the statute imposes a disability for the purposes of
punishment—that is, to reprimand the wrongdoer, to deter
others, etc., it has been considered penal. But a statute has
been considered nonpenal if it imposes a disability, not to
punish, but to accomplish some other legitimate
governmental purpose. The Court has recognized that any
statute decreeing some adversity as a consequence of certain
conduct may have both a penal and a nonpenal effect. The
controlling nature of such statutes normally depends on the
evident purpose of the legislature.
Id. ¶ 9, 322 P.3d at 831 (citations omitted).
[¶45] We then applied the requisite two-step inquiry to determine whether or not the
WSORA was penal as applied to an adult sex offender. Id. ¶¶ 13-32, 322 P.3d at 832-39
(applying framework set forth in Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 1146-47,
155 L. Ed. 2d 164 (2003)). The first step required a determination as to whether the
legislature meant the statute to establish civil proceedings. Kammerer, ¶ 13, 322 P.3d at
832. If the legislature’s intent was to impose punishment, that would end the inquiry. Id.
On the other hand, if the intent was to enact a regulatory scheme that is civil and non-
punitive, our task was then to examine whether the statute was punitive to such an
extent—either in purpose or effect— that it negated the legislature’s intention that it be
considered civil. Id.
[¶46] As to the first step, we examined the legislature’s intent in enacting the WSORA,
and reaffirmed our prior precedent holding that the law-making branch intended to
impose regulatory, as opposed to punitive, requirements. Id. ¶ 18, 322 P.3d at 834. We
then turned to the second step as to whether the effect of the WSORA negates the
legislature’s intent to create regulatory requirements for sex offenders. Id. ¶¶ 19-32, 322
P.3d at 834-39. We thoroughly analyzed this step by applying relevant factors “to
9
Article 1, § 10 provides that “[n]o state shall . . . pass any . . . ex post facto law . . . .”
14
evaluate whether the regulatory scheme (1) has been regarded in our history and
traditions as a punishment, (2) imposes an affirmative disability or restraint, (3) promotes
the traditional aims of punishment, (4) has a rational connection to a nonpunitive
purpose, or (5) is excessive with respect to this purpose.” Id. ¶ 19, 322 P.3d at 834
(citing Smith, 538 U.S. at 97, 123 S.Ct. at 1149). After applying these factors to the
WSORA, we concluded “that the effects of the [WSORA] do not override the
legislature’s intent to enact a regulatory scheme for registration of sex offenders.” Id. ¶
19, 322 P.3d at 834. Because we determined that the effects of the WSORA do not
negate the legislature’s intent to impose a regulatory scheme under the WSORA, we
again held—as we did in Snyder— that the act does not violate the ex post facto clause of
the United States Constitution. Id. ¶ 32, 322 P.3d at 839.
[¶47] However, Appellant claims that his case is distinguishable because our past
decisions did not deal with juvenile offenders who are subject to the WSORA. He
correctly points out that adult criminal convictions for sex offenses are reflected in a
public record. He claims that since adjudications under the WJJA are confidential, the
effect of requiring registration and limited notification transforms the legislature’s intent
to enact a regulatory scheme into a punitive one.
[¶48] There is no doubt that the legislature’s purpose in enacting the WSORA was to
impose regulatory, as opposed to punitive, requirements. Kammerer, ¶¶ 15-18 , 322 P.3d
at 833-34; Snyder, 912 P.2d at 1131. Appellant does not dispute this conclusion.
[¶49] Turning to the effect of the WSORA, and whether it negates the legislature’s
intent to create regulatory requirements for juvenile sex offenders, we cannot say that it
does. As to the first factor, the WSORA’s publication and notification requirements are
not historically regarded as punishment. Kammerer, ¶¶ 20-22, 322 P.3d at 834-36.
While the limited dissemination of information relating to a juvenile’s status as a sex
offender may have some negative connotations, disclosure of certain information is a
necessary result of the WSORA’s objective to protect the public from harm, just as it is a
partial purpose of the WJJA. See id. ¶ 21, 322 P.3d at 836. This factor weighs in favor
of a finding that the WSORA is not punitive in purpose or effect.
[¶50] As to the second factor, we must consider “how the effects of the [WSORA] are
felt by those subject to it.” Kammerer, ¶ 23, 322 P.3d at 836. We are convinced that the
disability or restraint as applied to Appellant is slight and indirect, and its effects are not
punitive. While Appellant must keep his information updated while subject to the
WSORA, we find that the requirements do not make the act so punitive either in purpose
or effect as to negate the legislature’s intent to create a regulatory scheme. See id. ¶¶ 23-
25, 322 P.3d at 836-37. This factor likewise does not weigh in favor of a finding that the
WSORA has a punitive effect.
15
[¶51] The third factor looks at the traditional aims of punishment, which are retribution
and deterrence. The classification of juvenile offenders based on their crimes is not
indicative of retributive intent. The WSORA “does not have a punitive effect merely
because it may deter the commission of sex offenses.” Id. ¶ 26, 322 P.3d at 838. This
factor also does not weigh in favor of a finding that the WSORA has a punitive effect.
[¶52] As to the fourth factor, the WSORA bears a rational connection to the purpose of
public safety, requiring identification of certain juveniles convicted of serious sex
offenses, and by making that information available to law enforcement agencies and to a
limited portion of the public. See id. ¶ 28, 322 P.3d at 838. We reaffirm that “the
purpose of sex offender registration is to aid in the prevention, avoidance, and
investigation of future sex offenses.” Id. (citations and quotation marks omitted). We are
not persuaded by Appellant’s assertion that the rational connection effervesces when a
juvenile is involved. Thus, analysis of this factor does not lead us to conclude that the
WSORA has a punitive purpose or effect.
[¶53] Lastly, the legislature’s identification of certain juveniles adjudicated for specified
sex offenses constitutes a reasonable basis for determining potential risks to the public
and is not excessive. The WSORA’s registration requirements are a reasonable method
of achieving the goal of public safety, which is a very important interest. We point out
that while the WSORA initially requires an offender to register for the rest of his life, this
duty may terminate in certain cases upon petition to be relieved from that duty. Wyo.
Stat. Ann. § 7-19-304(a). With respect to juveniles subject to the WSORA, it provides
that those who have been
adjudicated as a delinquent for offenses specified in W.S. 7-
19-302(j), who has been registered for at least ten (10) years,
exclusive of periods of confinement and periods in which the
offender was not registered as required by law, may petition
the district court for the district in which the offender is
registered to be relieved of the duty to continue to register if
the offender has maintained a clean record as provided in
subsection (d) of this section.
Id. at (a)(i). “Upon a showing that the offender has maintained a clean record as provided
in subsection (d) of this section for ten (10) years, the district court may order the
offender relieved of the duty to continue registration[.]” Id. Because of the considerable
interests at stake, the WSORA’s requirements constitute a reasonable method of
achieving the goal of public safety. See Kammerer, ¶¶ 31-32, 322 P.3d at 839. Analysis
of this factor does not reveal that the WSORA has a punitive purpose or effect.
[¶54] In sum, these factors weigh against finding that the WSORA has a punitive effect
as applied to juvenile offenders like Appellant. The WSORA only imposes a regulatory
16
burden on certain juvenile offenders adjudicated for serious sexual offenses, and the
effects of the act do not negate the legislature’s intent to impose that regulatory scheme.
Thus, we again find that the WSORA does not violate the ex post facto clause of the
United States Constitution.
[¶55] We note that Wyoming’s legislature has recently taken steps to see that juvenile
sex offenders receive a hearing to determine whether they are at significant risk of
reoffending. See 2016 Wyo. Sess. Laws Ch. 13 (S.F. 47); Wyo. Stat. Ann. § 7-19-309
(LexisNexis 2016 Supp). This statute requires that the Wyoming Division of Criminal
Investigation give notice to the district or county attorney in the county where an
adjudicated offender moves or lives. If that official believes that an offender is at
moderate or high risk to reoffend, he or she may obtain a determination by a juvenile or
district court as to the level of risk. If the offender is at low risk, although he must
continue to notify the local sheriff of his whereabouts, notification of neighbors,
organizations, etc., is not required. If the offender is at moderate or high risk to reoffend,
notification must be made to neighbors, organizations, etc., as was the case for all
juvenile offenders before this most recent enactment. Id. The legislature did not make
this legislation retroactive, and thus Appellant will not benefit from it.10 While we may
consider this new legislation a fairer means of dealing with juvenile offender notification,
there is no constitutional infirmity in the legislation which must be applied in this case,
and it was within the legislature’s power to make the new procedure effective
prospectively.
[¶56] Affirmed.
10
2016 Wyo. Sess. Laws Ch. 13, § 3 provides:
“This act shall apply to juvenile convictions or adjudications commenced
on or after the effective date of this act.”
The effective date of the act was July 1, 2016. Id. § 4.
17