129 Nev., Advance Opinion 52.
IN THE SUPREME COURT OF THE STATE OF NEVADA
THE STATE OF NEVADA, No. 52477
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF FILED
CLARK; AND THE HONORABLE
WILLIAM 0. VOY, DISTRICT JUDGE,
JUL 25 2013
FAMILY COURT DIVISION,
Respondents,
and
LOGAN D., A MINOR,
Real Party in Interest.
Original petition for a writ of prohibition or mandamus
challenging an order of the juvenile court granting the real party in
interest's motion to declare Assembly Bill 579, enacted as Chapter 485 of
the 2007 Statutes of Nevada, unconstitutional as applied to juvenile sex
offenders.
Petition granted.
Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, and Jonathan VanBoskerck, Chief Deputy
District Attorney, Clark County,
for Petitioner.
Philip J. Kohn, Public Defender, and Howard Brooks and Susan Deems
Roske, Deputy Public Defenders, Clark County,
for Real Party in Interest.
/3-07/9/y
Margaret A. McLetchie, Las Vegas,
for Amicus Curiae American Civil Liberties Union of Nevada.
BEFORE THE COURT EN BANC.
OPINION
By the Court, DOUGLAS, J.:
In this original writ proceeding, we consider whether
Assembly Bill 579, enacted by the 2007 Nevada Legislature, providing for
the retroactive application of mandatory sex offender registration and
community notification requirements on juveniles adjudicated for certain
sex offenses, violates the Due Process and Ex Post Facto Clauses of the
United States and Nevada Constitutions. We conclude that registration
and community notification do not violate the Due Process or Ex Post
Facto Clauses. We therefore grant the petition.
FACTS AND PROCEDURAL HISTORY
Real party in interest Logan D. was adjudicated delinquent for
one count of lewdness with a minor on October 4, 2006, for an offense
alleged to have occurred in August 2006 when he was 17 years old. The
law in place at the time of Logan's adjudication provided the juvenile court
with discretion to require a juvenile adjudicated for a sexual offense to
submit to adult registration and community notification if the court
determined at a hearing that the juvenile was not rehabilitated or was
likely to pose a threat to public safety. 2005 Nev. Stat., ch. 507, § 26, at
2
2873-74. Pursuant to that law, the juvenile court scheduled a hearing for
September 2009 to determine whether Logan would be required to register
as an adult sex offender. Before that hearing took place, however, the
Legislature passed Assembly Bill (A.B.) 579. That bill, codified in relevant
part in NRS Chapter 62F and NRS Chapter 179D, removed the juvenile
court's discretion to determine whether a juvenile sex offender should be
subject to registration and community notification as an adult. The new
law mandated that all juveniles aged 14 and older who are adjudicated for
certain sex offenses register as adult sex offenders and be subject to
community notification; the law prohibited the imposition of these
requirements on juvenile offenders under the age of 14. NRS 62F.200;
NRS 179D.035; NRS 179D.095(1); NRS 179D.441; NRS 179D.475. On
December 28, 2007, six months before A.B. 579 was to take effect, 2007
Nev. Stat., ch. 485, § 57, at 2780, Logan and approximately 20 other
juveniles filed motions asking the juvenile court to find the bill
unconstitutional as applied to juvenile sex offenders. The juveniles
asserted that A.B. 579 was unconstitutionally vague and violated
procedural and substantive due process as well as the Contracts, Ex Post
Facto, and Cruel and/or Unusual Punishment Clauses of the federal and
state constitutions.
After full briefing and several hearings, the juvenile court
entered an order declaring A.B. 579 unconstitutional as applied to juvenile
sex offenders. The juvenile court concluded that the statutory scheme
violated substantive due process because it did not bear a rational
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relationship to the "rehabilitation and public safety goals of the Juvenile
Court and the Department of Juvenile Justice nor the public safety goals
of the Adam Walsh Act." The juvenile court determined that prohibiting
registration and community notification for high-risk juvenile sex
offenders under the age of 14 while mandating those requirements for low-
risk juvenile sex offenders over the age of 14 was irrational because such
an approach does not serve to prevent recidivism or further rehabilitation.
The State filed an appeal from the juvenile court's order, and
the affected juveniles, including Logan D., filed cross-appeals. This court
dismissed the appeals for lack of jurisdiction. In re Logan D., a Minor,
Docket No. 51682 (Order Dismissing Appeals, September 5, 2008). This
original petition for a writ of prohibition or, alternatively, mandamus
followed. 1
DISCUSSION
A writ of prohibition is available to halt proceedings occurring
in excess of a court's jurisdiction, NRS 34.320, while a writ of mandamus
may issue to compel the performance of an act which the law requires "as
a duty resulting from an office, trust or station," NRS 34.160, or to control
1 1nApril 2010, this court approved the parties' stipulation to stay
this proceeding pending resolution of federal litigation challenging the
constitutionality of A.B. 579 as applied to adult sex offenders. That
litigation has now been resolved and A.B. 579 determined constitutionally
sound as applied to adult offenders. ACLU of Nev. v. Masto, 670 F.3d 1046
(9th Cir. 2012). Accordingly, we now lift the stay of this matter.
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an arbitrary or capricious exercise of discretion, see Round Hill Gen.
Improvement Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536
(1981). This court will exercise its discretion to consider petitions for
extraordinary writs "only when there is no plain, speedy and adequate
remedy in the ordinary course of law or there are either urgent
circumstances or important legal issues that need clarification in order to
promote judicial economy and administration." Cheung v. Eighth Judicial
Dist. Court, 121 Nev. 867, 869, 124 P.3d 550, 552 (2005) (internal
quotation marks and footnote omitted).
This petition raises important legal issues potentially affecting
all persons who have been adjudicated delinquent for certain sex offenses
since 1956. And because this court previously determined that the
challenged order was not substantively appealable, petitioner has no other
remedy at law. We therefore exercise our discretion to consider the merits
of this petition.
Background
In 2006, the United States Congress enacted the Adam Walsh
Child Protection and Safety Act, which included the Sex Offender
Registration and Notification Act (SORNA). 42 U.S.C. §§ 16901-16962
(2006). SORNA was promulgated "to protect the public from sex offenders
and offenders against children, and in response to. . . vicious attacks by
violent predators." Id. § 16901. SORNA mandates, in relevant part, that
each state require persons convicted of certain sex offenses to periodically
register with authorities and provide specified information, id. §§ 16913-
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16914, maintain a statewide sex offender registry containing specific
information pertaining to each registered sex offender, id. §§ 16912 &
16914, implement a community notification program, id. § 16921, and
provide a criminal penalty for sex offenders who fail to comply, id. §
16913. SORNA specifically defines the term "convicted" as including
juveniles adjudicated delinquent for certain sex offenses. Id. § 16911(8).
A state's failure to timely comply with the Act's requirements in a given
fiscal year results in a 10-percent reduction of certain funds from the
federal government. Id. §§ 16924-16925.
In response to the federal legislation, Nevada passed A.B. 579,
with an effective date of July 1, 2008. 2007 Nev. Stat., ch. 485, § 57, at
2780. Under Nevada's version of the law, a "sex offender" is defined to
include any person who, after July 1, 1956, has been adjudicated
delinquent for sexual assault, battery with the intent to commit sexual
assault, lewdness with a child, or an attempt or conspiracy to commit any
of these offenses, so long as the offender was 14 years or older at the time
of the offense. NRS 62F.200(1); NRS 179D.095(1)(b). The "term does not
include an offense involving consensual sexual conduct if the victim was at
least 13 years of age and the offender was not more than 4 years older
than the victim at the time of the commission of the offense." NRS
62F.200(2).
Sex offenders are required to initially register before
completing the term of imprisonment for a crime, or if not imprisoned, no
later than three business days after sentencing. NRS 179D.445(2). They
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must provide authorities with the following information: name, aliases,
social security number, residence address, name and address of employer,
name and address of school, and description and license plate number of
all vehicles frequently driven or registered to them. NRS 179D.443(1).
Any changes in name, residence, employment, or student status must be
reported, in person, within three business days. NRS 179D.447(1).
Failure to comply is a category D felony. NRS 179D.550(1).
Sex offenders are classified into three tiers; juvenile sex
offenders can fall into any of these categories depending on their offense
and prior history. Juveniles adjudicated for sexual assault, battery with
the intent to commit sexual assault, or an attempt or conspiracy to commit
these offenses are classified as Tier III offenders. See NRS 179D.117(2),
(3) & (8). Juveniles can also be classified as Tier III offenders if they are
already a Tier II offender and commit another sexual offense or crime
against a child. NRS 179D.117(6). Juveniles adjudicated for lewdness
with a child or attempted lewdness with a child are classified as Tier II
offenders. See NRS 179D.115 (defining a Tier II offender as a person
convicted of a crime against a child punishable by more than 1 year in
prison); see also NRS 201.230 (lewdness is a category A felony); NRS
193.330(1)(a)(1) (attempt to commit a category A felony is a category B
felony). Tier II assignment may also be made if a juvenile is already a
Tier I offender and any of his "sexual offenses constitute an offense
punishable by imprisonment for more than 1 year." NRS 179D.115(4).
Finally, juveniles adjudicated for conspiracy to commit lewdness with a
7
child are Tier I offenders. See NRS 179D.113; see also NRS 193.140 (gross
misdemeanor punishable by not more than one year in jail); NRS
199.480(3) (conspiracy is a gross misdemeanor).
Each tier has different reporting requirements. Tier III
offenders must appear in person every 90 days and allow fingerprints,
palm prints, and a photograph to be taken, and update any required
information. NRS 179D.480(1)(c). Tier II offenders are required to appear
in person every 180 days, and Tier I offenders once per year, for the same
purpose. NRS 179D.480(1)(a)-(b). Tier III offenders must register for life;
if, however, they are Tier III offenders as the result of a juvenile
adjudication, they may petition for relief from the registration
requirements after a period of 25 consecutive years without a conviction
for a new felony or sexual offense, and successful completion of any
probationary or parole terms and a certified sex offender treatment
program. NRS 179D.490(2)-(4). Tier II offenders must register for 25
years and Tier I offenders for 15 years. NRS 179D.490(2)(a)-(b). Tier I
offenders may, however, petition for release after 10 consecutive years if
they meet the same requirements for early release as Tier III offenders.
NRS 179D.490(3)(a). There is no early release provision for Tier II
offenders.
Juvenile sex offenders are subject to both active and passive
community notification. Local law enforcement agencies are required to
provide registration information to (1) every school, religious and youth
organization, and public housing agency in which the sex offender is a
8
student, worker, or resident; (2) every child welfare agency; (3) volunteer
organizations through which contact with vulnerable persons or children
may occur; and (4) if the sex offender is classified as a Tier III offender,
members of the public likely to encounter the sex offender. NRS
179D.475(2). Further, any person, company, or organization may request
registration information from the Central Repository for Nevada Records
of Criminal History. NRS 179D.475(1)(e).
Juvenile sex offenders' information is also available via
Nevada's community notification website. NRS 179B.250. Any member of
the public may perform a search by name, alias, or zip code, yielding the
following information about registered sex offenders: name and aliases;
physical description; current photograph; year of birth; residence, school,
and employer address; license plate number and description of any vehicle
owned or operated by the sex offender; name of, and citation to, the
specific statute violated; court convicted in; name convicted under; name
and location of every penal institution, hospital, school, mental facility, or
other institution committed to; location of offense committed; and assigned
tier level. NRS 17913.250(6)(c). The website does not convey information
regarding Tier I offenders unless they have been convicted of a sexual
offense against a child or a crime against a child. NRS 179B.250(7)(b). It
also does not reveal an offender's social security number, the name of an
offender's school or employer, arrests not resulting in conviction, and any
other registration information not expressly required to be disclosed by
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paragraph (6)(c) or exempted from disclosure pursuant to federal law.
NRS 179B.250(7)(c)-(g).
The public is prohibited from using information obtained from
the community notification website, except as allowed by statute, "for any
purpose related to" insurance; loans; credit; employment; education,
scholarships, or fellowships; housing or accommodations; or benefits,
privileges, or services from any business. NRS 179B.270. Neither may
registration information "be used to unlawfully injure, harass or commit a
crime against any person named in the registry or residing or working at
any reported address." NRS 179B.250(2)(e). Misuse of information
obtained from the website can result in civil and criminal penalties. NRS
179B.280; NRS 179B.285.
The juvenile court's holding
The juvenile court declared A.B. 579 unconstitutional as
applied to juvenile sex offenders, concluding that the bill violated
substantive due process because it neither bore a rational relationship to
the public safety goals of the bill nor furthered the rehabilitation and
public safety goals of the juvenile justice system. 2 The juvenile court's
2 Thejuvenile court rejected Logan's contention that the bill should
be reviewed under strict scrutiny, finding that it did not impinge upon any
fundamental right or affect any suspect class. The juvenile court further
rejected Logan's assertion that the bill violated the Contracts, Ex Post
Facto, and Cruel and/or Unusual Punishment Clauses of the United
States and Nevada Constitutions, as well as his contention that the bill
continued on next page...
10
primary concern with the bill was that it required community notification
for all juvenile sex offenders over the age of 14 and adjudicated for certain
offenses, regardless of their risk to reoffend, but did not allow community
notification for those offenders under the age of 14, even those who
represent a high risk to reoffend. We share the juvenile court's concerns
regarding the wisdom of this legislation. Nevertheless, we are bound to
follow the law, and A.B. 579, as applied to juveniles, easily passes rational
basis review.
The constitutionality of a statute presents a question of law
that this court reviews de novo. State v. Hughes, 127 Nev. „ 261
P.3d 1067, 1069 (2011). Statutes are cloaked with a presumption of
validity and the burden is on the challenger to demonstrate that a statute
is unconstitutional. Id. When undertaking a substantive due process
analysis, a statute that does not infringe upon a fundamental right will be
upheld if it is rationally related to a legitimate government purpose.
Bowers v. Whitman, 671 F.3d 905, 916-17 (9th Cir.), cert. denied, 568 U.S.
133 S. Ct. 163 (2012); see also Gaines v. State, 116 Nev. 359, 372, 998
P.2d 166, 174 (2000). The Legislature need not articulate its purpose in
enacting a statute; the statute will be upheld if any set of facts can
reasonably be conceived of to justify it. FCC v. Beach Communications,
Inc., 508 U.S. 307, 315 (1993); Sereika v. State, 114 Nev. 142, 149, 955
...continued
violated his right to procedural due process and was unconstitutionally
vague.
11
P.2d 175, 179 (1998). A legislative choice "may be based on rational
speculation unsupported by evidence or empirical data." FCC, 508 U.S. at
315. And the Legislature enjoys broad discretion to make reasonable
distinctions when enacting legislation. Allen v. State, Pub. Emps. Ret. Bd.,
100 Nev. 130, 136-37, 676 P.2d 792, 796 (1984).
In line with the stated purpose of its federal counterpart, the
Nevada Legislature could have determined that the enactment of A.B. 579
was required to protect the public from sex offenders, unquestionably a
legitimate government interest. See 42 U.S.C. § 16901 (2006) (stating that
the purpose of the act was "to protect the public from sex offenders and
offenders against children"); Nanette v. State, 118 Nev. 341, 346, 46 P.3d
87, 90-91 (2002) (concluding that the purpose of Nevada's previous version
of sex offender registration and community notification laws was to aid
law enforcement in solving crimes and to protect the public). To this end,
the Legislature could have determined that juveniles adjudicated for the
enumerated offenses, which represent the most serious of sexual offenses,
are at a higher risk to reoffend—and thus pose a greater danger to the
public—than juveniles adjudicated for other, less serious offenses. See
Helman v. State, 784 A.2d 1058, 1075 (Del. 2001). And consistent with the
Legislature's presumption since 1911 that children aged 14 and older
know the wrongfulness of their actions, see NRS 194.010(1)-(2) (unchanged
since enactment in 1911, see Nev. Rev. Laws § 6268 (1912)), it could have
also concluded that once a child reaches the age of 14, he or she commits a
sex offense with knowledge that it is wrong and therefore poses a greater
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risk to the public than a younger child who commits the same offense.
Given these possible justifications for the distinctions drawn in the
legislation, we conclude that the juvenile court erred by concluding that
A.B. 579 did not survive rational basis review. See United States v.
Juvenile Male, 670 F.3d 999, 1009-10 (9th Cir.) (application of SORNA to
juvenile sex offenders satisfies rational basis review), cert. denied, 568
U.S. , 133 S. Ct. 234 (2012); In re J.R., 793 N.E.2d 687, 694-96 (Ill. App.
Ct. 2003) (registration and limited community notification as applied to
juvenile sex offenders survive rational basis review); In re Ronnie A., 585
S.E.2d 311, 312 (S.C. 2003) (registration of juvenile sex offenders is
rationally related to goal of public protection); In re M.A.H., 20 S.W.3d
860, 866 (Tex. App. 2000). But see In re W.Z., 957 N.E.2d 367, 377 (Ohio
Ct. App. 2011) (no rational basis for automatic registration of juvenile sex
offenders at time of adjudication where, pursuant to state law, court made
a determination as to rehabilitation when juvenile turned 21).
Of utmost concern, it does not appear from the legislative
history that the Nevada Legislature ever considered the impact of this bill
on juveniles or public safety. The body's motivation for passing the bill
appears to be compliance with the Walsh Act and avoidance of the
reduction in grant monies that would come with noncompliance. See, e.g.,
Hearing on A.B. 579 Before the Assembly Select Comm. on Corrections,
Parole, and Probation, 74th Leg. (Nev., April 10, 2007). Under rational
basis review, however, we "are not limited to consideration of the
justifications actually asserted by the legislature," Sereika, 114 Nev. at
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149, 955 P.2d at 179; so long as plausible reasons for an action exist, it is
"constitutionally irrelevant whether this reasoning in fact underlay the
legislative decision," U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980)
(internal quotation marks omitted); see also Allen, 100 Nev. at 134, 676
P.2d at 795 ("The existence of facts which would support the legislative
judgment is presumed."). And "[t]his is particularly true where the
legislature must necessarily engage in a process of line-drawing." Fritz,
449 U.S. at 179.
Our inquiry does not end, however, with our conclusion that
the juvenile court erred by holding that A.B. 579 did not withstand
rational basis review. If this court determines that the statutory scheme
is unconstitutional for any other reason presented to the juvenile
court, we will nevertheless uphold the order declaring the legislation
unconstitutional. Cf. Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341
(1970) ("If a judgment or order of a trial court reaches the right result,
although it is based on an incorrect ground, the judgment or order will be
affirmed on appeal."). We therefore examine Logan's other constitutional
challenges.
Substantive due process
Logan contends that the community notification provisions of
A.B. 579 impinge on juveniles' fundamental right to privacy and are
therefore subject to strict scrutiny review. We disagree.
The substantive component of the Fourteenth Amendment to
the United States Constitution recognizes certain "fundamental rights"
14
upon which the government's ability to intrude is sharply limited. See,
e.g., Paul v. Davis, 424 U.S. 693, 712-13 (1976). A substantive due process
analysis begins "with a careful description of the asserted right." Reno v.
Flores, 507 U.S. 292, 302 (1993). If the asserted right is "deeply rooted" in
tradition and history and so "implicit in the concept of ordered liberty"
that "neither liberty nor justice would exist if [it] were sacrificed," the
asserted right is a fundamental one. Washington v. Glucksberg, 521 U.S.
702, 721 (1997) (internal quotation marks omitted); see also Palko v.
Connecticut, 302 U.S. 319, 325-26 (1937), overruled on other grounds by
Benton v. Maryland, 395 U.S. 784, 794 (1969). A statute that infringes on
a fundamental right is subject to strict scrutiny and will be invalidated
unless it is "narrowly tailored to serve a compelling state interest." In re
Parental Rights as to D.R.H., 120 Nev. 422, 427, 92 P.3d 1230, 1233 (2004)
(internal quotation marks omitted). If the statute does not abridge a
fundamental right, it is reviewed under the rational basis test and will be
upheld so long as it bears a rational relationship to a legitimate state
interest. See Allen, 100 Nev. at 134, 676 P.2d at 794-95.
Logan contends that "[a]n individual's right to privacy is
clearly impacted by community notification." Besides this vague reference
to the right of privacy, he fails to identify the precise right asserted.
Because Logan challenges the community notification provisions of A.B.
579, we conclude that his claim is appropriately stated as the right to have
records of juvenile adjudications for sex offenses kept confidential. We
further conclude that this is not a fundamental right protected by the
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substantive component of the Fourteenth Amendment of the United States
Constitution, see U.S. Const. amend. XIV, § 1, or the due process clause of
the Nevada Constitution, see Nev. Const. art. 1, § 8(5).
The Supreme Court has identified fundamental rights as
including "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." Glucksberg, 521 U.S. at 720 (internal
citations omitted). Also included may be the right to "refuse unwanted
lifesaving medical treatment." Id. This court has consistently relied upon
the Supreme Court's holdings interpreting the federal Due Process Clause
to define the fundamental liberties protected under Nevada's due process
clause. See, e.g., Arata v. Faubion, 123 Nev. 153, 158-59, 161 P.3d 244,
248-49 (2007); Kirkpatrick v. Eighth Judicial Dist. Court, 119 Nev. 66, 71,
64 P.3d 1056, 1059-60 (2003).
We conclude that Logan's asserted right, while unquestionably
important, does not come within the ambit of the type of rights deemed
fundamental by the Supreme Court. Other courts have reached the same
conclusion. See, e.g., Doe v. Mich. Dep't of State Police, 490 F.3d 491, 500
(6th Cir. 2007); Juvenile Male, 670 F.3d at 1012-13; In re J. W., 787 N.E.2d
747, 757 (Ill. 2003); Helman, 784 A.2d at 1073-74 (rejecting juvenile sex
offender's contention that community notification violated his right to
privacy); In re Jeremy P., 692 N.W.2d 311, 319-20 (Wis. Ct. App. 2004); see
also Glucksberg, 521 U.S. at 720 (cautioning that the Supreme Court has
"always been reluctant to expand the concept of substantive due process
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because guideposts for responsible decisionmaking in this unchartered
area are scarce and open-ended" (internal quotation marks omitted)). But
see State v. Bani, 36 P.3d 1255, 1264-66 (Haw. 2001).
Neither is the right to the confidentiality of juvenile sex
offender records so "deeply rooted" in Nevada's history as to render
confidentiality a fundamental right under our state constitution. Juvenile
delinquency records have historically enjoyed general confidentiality in
this state. See, e.g., NRS 62H.030(2) (records of juvenile offenders can
generally be opened to the public only through court order to those persons
with a legitimate interest in the records); NRS 62H.130 (most juvenile
delinquents adjudicated for nonsexual offenses may move to seal their
records three years after an adjudication, if they remain trouble-free).
Records of juvenile sex offenders, however, have enjoyed less
protection than records of other delinquents. Persons subject to juvenile
community notification, or adult community notification pursuant to
delinquency adjudications, were not eligible to seal their delinquency
records. 2003 Nev. Stat., ch. 206, § 192, at 1082. Most significantly, from
1997 until the effective date of A.B. 579 in 2008, juvenile sex offenders
were subject to juvenile community notification, 1997 Nev. Stat., ch. 451, §
90.8, at 1675 (repealed by A.B. 579), which entailed almost the identical
community notification provisions as the adult version, compare Office of
the Nev. Attorney Gen., Nevada's Guidelines and Procedures for
Community Notification of Juvenile Sex Offenders, § 8.10, at 10 (Rev. Feb.
2006) [hereinafter Juvenile Community Notification Guidelines], with
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Office of the Nev. Attorney Gen., Nevada's Guidelines and Procedures for
Community Notification of Adult Sex Offenders, § 8.10, at 12 (Rev. Feb.
2006). Juvenile community notification included distribution of a juvenile
sex offender's photograph, a description of his person, his name and
aliases, a general location of his residence and workplace, and a
description and license number of all vehicles he owned or regularly
operated. Juvenile Community Notification Guidelines, supra, § 8.10(2).
If designated as a Tier II offender, law enforcement was required to
provide this information to any camps, school districts, youth
organizations, day care centers, and other religious or community
organizations deemed reasonably likely to encounter the juvenile. Id. §
8.00(3). In addition, if a Tier II juvenile offender was adjudicated for a
sexual offense against a person under 18 years of age—as it appears many
juvenile sex offenders were—law enforcement was also required to notify
movie theaters and businesses catering primarily to children and that
were reasonably likely to encounter the juvenile offender. Id. Records of
Tier III juvenile sex offenders were even more broadly publicized; law
enforcement was required to notify, in addition to the notification required
for Tier II offenders, any members of the community that were reasonably
likely to encounter the juvenile sex offenders and who, in law
enforcement's discretion, were appropriate persons to receive notification. 3
3 For Tier I offenders, the information was disseminated only to law
enforcement agencies. Juvenile Community Notification Guidelines,
supra, § 8.00(2).
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18
Id. § 8.00(4). And the juvenile court was vested with the discretion to
require juvenile sex offenders to register as adult sex offenders and submit
to adult community notification. 2005 Nev. Stat., ch. 507, § 26, at 2873-
74. Accordingly, no deeply rooted right to the confidentiality of juvenile
sex offender records exists in Nevada.
We conclude that Logan fails to demonstrate that A.B. 579
implicates a fundamental right. The bill is therefore reviewed under the
rational basis test, which, as discussed above, it passes. Logan's
contention that A.B. 579, as applied to juveniles, violates substantive due
process lacks merit. 4
Procedural due process
Logan contends that A.B. 579 denies him procedural due
process because it deprives him of a protected privacy interest without
procedural protections. We disagree. A.B. 579 imposes registration and
4We also reject Logan's assertion that placing juvenile sex offenders
"in the same category as adult sex offenders" violates his right to equal
protection. Neither age nor classification as a sex offender constitutes a
suspect classification for purposes of an equal protection analysis. See
Gregory v. Ashcroft, 501 U.S. 452, 470 (1991); Juvenile Male, 670 F.3d at
1009; Doe v. Michigan Dep't of State Police, 490 F.3d 491, 503 (6th Cir.
2007); Doe v. Moore, 410 F.3d 1337, 1346 (11th Cir. 2005); United States v.
LeMay, 260 F.3d 1018, 1030 (9th Cir. 2001); In re M.A.H. , 20 S.W.3d 860,
866 (Tex. App. 2000) (declining to apply strict scrutiny where neither
juveniles nor sex offenders constituted a suspect class); State v. Ward, 869
P.2d 1062, 1077 (Wash. 1994); State v. Linssen, 126 P.3d 1287, 1290
(Wash. Ct. App. 2006). Thus, A.B. 579 is subject only to rational basis
review. As discussed above, A.B. 579 withstands rational basis review.
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community notification requirements on all juveniles age 14 and older who
are adjudicated for certain crimes; no additional facts are relevant to the
statutory scheme. Even assuming A.B. 579 infringes on a liberty interest,
Logan is not entitled to procedural due process to prove a fact that is
irrelevant under the statute. See Connecticut Dep't of Pub. Safety v. Doe,
538 U.S. 1, 7 (2003) ("[E]ven assuming, arguendo, that respondent has
been deprived of a liberty interest, due process does not entitle him to a
hearing to establish a fact that is not material under the . . . statute.").
But see State v. Guidry, 96 P.3d 242, 251-52 (Haw. 2004) (concluding that
due process clause of state constitution required a hearing to determine
risk of future dangerousness because, although statute required
imposition of registration on all sex offenders, future dangerousness was
relevant to the statutory scheme because its purpose was to protect the
public); In re W.Z., 957 N.E.2d 367, 377-80 (Ohio Ct. App. 2011)
(concluding that fundamental fairness requires a hearing to determine
whether a juvenile sex offender has been rehabilitated before he may be
subjected to registration and community notification where statute was
based solely on the offense committed).
Vagueness
Logan contends that the statutory scheme is
unconstitutionally vague because it grants the juvenile court continuing
jurisdiction over juvenile sex offenders and defines them as children for 25
years to a lifetime. He points out that a "child" is defined as a person who
is subject to the jurisdiction of the juvenile court as a juvenile sex offender
20
pursuant to NRS 62F.200-.260. NRS 62A.030(1)(c). However, the juvenile
court cannot end its jurisdiction over a child for the purpose of carrying
out the provisions of NRS 62F.200-.260 until the child is no longer subject
to registration and community notification as a juvenile sex offender, see
NRS 62F.220(2), and there is no provision allowing the juvenile court to
relieve a child of registration and community notification. Logan contends
that this statutory framework raises many questions relating to the scope
of the jurisdiction of the juvenile court, which court has jurisdiction over
violations of the registration statute and the supervision of parole and
probation, and the ramifications of being defined as a child for a lifetime.
This vagueness argument was not made to the juvenile court in Logan's
motion to declare A.B. 579 unconstitutional. 5 See McKay v. City of Las
Vegas, 106 Nev. 203, 207, 789 P.2d 584, 586 (1990) (declining to consider
issue not litigated before or ruled upon by the district court), overruled on
other grounds by Salaiscooper v. Eighth Judicial Dist. Court, 117 Nev.
892, 34 P.3d 509 (2001). Nevertheless, we exercise our discretion to
address this issue.
A statute is unconstitutionally vague if it is "so standardless
that it authorizes or encourages seriously discriminatory enforcement."
5 Logan made a vagueness argument to the juvenile court relying
upon the same statutory provisions, but contended that the statutory
scheme was vague because it failed to clarify which governmental entity
had jurisdiction to enforce lifetime supervision and the restrictions
imposed by Senate Bill 471, which was passed during the 2007 legislative
session.
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Ford v. State, 127 Nev. , 262 P.3d 1123, 1125 (2011) (quoting
United States v. Williams, 553 U.S. 285, 304 (2008)). To survive a
vagueness challenge, a "law must. . . provide explicit standards for those
who apply them" and give persons "of ordinary intelligence a reasonable
opportunity to know what is prohibited." In re T.R., 119 Nev. 646, 653, 80
P.3d 1276, 1280-81 (2003) (internal citation omitted). The burden to
demonstrate a statute's unconstitutionality rests on the challenger. Ford,
127 Nev. at ,262 P.3d at 1126.
We conclude that Logan fails to demonstrate that AB. 579 is
unconstitutionally vague. NRS 62F.220(2) does appear, as Logan asserts,
to give the juvenile court continuing jurisdiction over juvenile sex
offenders. 6 The plain language of the statute, however, limits the purpose
of the continuing jurisdiction to "carrying out the provisions of" NRS
62F.200-.260. These statutes provide, respectively, the definition of a
sexual offense; the juvenile court's duty to inform the Central Repository,
the child, and the child's parent or guardian that a juvenile sex offender is
subject to registration and community notification; and that the juvenile
6 This conclusion does not conflict with this court's recent statement
in State v. Barren, 128 Nev. „ 279 P.3d 182, 187 (2012), that the
"juvenile court's jurisdiction [is limited] to persons less than 21 years of
age." Barren dealt with the juvenile court's jurisdiction to adjudicate
juveniles pursuant to the general rule of NRS 62B.410, while the portions
of the statutes at issue here deal with the juvenile court's limited
continuing jurisdiction to engage in administrative functions relating to
registration and community notification pursuant to the exception in NRS
62B.410.
22
court may not seal a juvenile sex offender's records so long as he or she is
subject to registration and community notification. Read in conjunction
with NRS 62F.200-.260, NRS 62F.220(2) provides the juvenile court with
continuing jurisdiction over juvenile sex offenders only so that it may
provide information to the Central Repository and parents or guardians of
juvenile sex offenders, and to keep records from being sealed. Accordingly,
Logan fails to demonstrate that NRS 62F.220(2) determines which court
has jurisdiction over a violation of the registration requirements of
Chapter 179D, see NRS 179D.550 (providing a criminal penalty for any
sex offender who fails to comply with the provisions of NRS Chapter
179D), or affects the juvenile court's jurisdiction over delinquents who are
on juvenile parole or probation.
Logan also points out that, pursuant to NRS 62A.030(1)(c)—
defining a "child"—a juvenile sex offender could be defined as a child for a
lifetime. Although he complains that being defined as a child for a lifetime
may have some impact on individuals in the "sunset years of their lives,"
he does not identify any vagueness in the statute itself. Therefore, we
conclude that Logan fails to demonstrate any constitutional infirmity in
this regard.
Statutory conflict
Next, Logan points to an alleged conflict between A.B. 579 and
the existing statutory scheme, asserts that the rule of lenity should apply,
and contends that A.B. 579 should therefore be interpreted to mean that
registration and community notification are not applicable to juvenile sex
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offenders. Specifically, NRS 169.025(2) provides that NRS Title 14, which
includes NRS Chapters 169 through 189, does not apply to juvenile
delinquency proceedings. A.B. 579, however, requires that juveniles
adjudicated of sex offenses submit to registration and community
notification pursuant to NRS 179D.010-.550. Despite Logan's failure to
present this argument to the juvenile court, we elect to address it. We
conclude that this contention lacks merit because the cited statutory
provisions can be read in harmony; when so read, registration and
community notification do apply to juveniles and the rule of lenity does not
apply.
When two statutory provisions conflict, this court employs the
rules of statutory construction, Williams v. Clark Cnty. Dist. Attorney, 118
Nev. 473, 484, 50 P.3d 536, 543 (2002), and attempts to harmonize
conflicting provisions so that the act as a whole is given effect, In re Eric
L., 123 Nev. 26, 31, 153 P.3d 32, 35 (2007). Statutes are interpreted so
that each part has meaning. Leven v. Frey, 123 Nev. 399, 405, 168 P.3d
712, 716 (2007). Therefore, when a scheme contains a general prohibition
contradicted by a specific permission, "the specific provision is construed
as an exception to the general one." RadLAX Gateway Hotel, L.L.C. v.
Amalgamated Bank, 566 U.S. 132 S. Ct. 2065, 2071 (2012).
Here, NRS 169.025(2) is a general prohibition, preventing
application of Title 14, including Chapter 179D, to juvenile delinquency
proceedings. On the other hand, NRS Chapter 179D contains specific
provisions mandating its application to certain juveniles adjudicated
24
delinquent—NRS 179D.035 defines "convicted" to include certain
delinquency adjudications and NRS 179D.095 defines "sex offender" to
include certain juveniles adjudicated delinquent. The rules of statutory
construction dictate that the specific provisions of NRS Chapter 179D be
construed as exceptions to the general prohibition of NRS 169.025(2). See
also A Minor v. Juvenile Dep't, 96 Nev. 485, 611 P.2d 624 (1980) (NRS
169.025(2) does not forbid application of rules of criminal procedure to
juvenile proceedings). So read, the provisions are in harmony and none
are rendered meaningless. And because they can be read in harmony, the
rule of lenity does not apply. State v. Lucero, 127 Nev. „ 249 P.3d
1226, 1230 (2011) (the rule of lenity applies only when the other rules of
statutory interpretation fail).
Conflict with purpose of juvenile justice system
Logan asserts that registration and community notification
and the resulting stigmatization of juveniles conflicts with the traditional
goals of the juvenile justice system. We recognize that community
notification can have lasting stigmatic effects on juvenile offenders.
Logan's argument, however, relies upon an erroneous factual assumption.
From their beginnings in 1899 in Illinois, juvenile courts
focused only on the best interest of the child, treating delinquents not as
criminals, "but as misdirected, and misguided and needing aid,
encouragement and assistance." In re Seven Minors, 99 Nev. 427, 431-32,
664 P.2d 947, 950 (1983) (internal quotation marks omitted), disapproved
on other grounds as stated in In re William S., 122 Nev. 432, 442 n.23, 132
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P.3d 1015, 1021 n.23 (2006). But in 1949, Nevada's Legislature broadened
this focus by requiring Nevada's juvenile courts to consider the public
interest (including public protection) as well as the best interest of the
child. See id. at 431-33, 664 P.2d at 950-51. Since then, we have
specifically noted that public protection and the best interest of the child
sometimes conflict, and concluded that when they do, it is the public
interest that should predominate. Id. at 433, 664 P.2d at 951. Thus,
while the interest of the juvenile offender remains one of the central
concerns of the juvenile system, it is no longer the only, or primary
concern. Accordingly, 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.
Other courts have reached analogous conclusions. For
example, the Supreme Court of Illinois determined that, given the recent
expansion in the purpose of the juvenile court to include public protection
and juvenile accountability, requiring juvenile sex offenders to register for
life and subjecting them to limited community notification was not at odds
with the policy and purpose of its juvenile system. In re J. W., 787 N.E.2d
747, 759 (Ill. 2003); see also Juvenile Male, 670 F.3d at 1008 (although
SORNA's notification requirement conflicted with the confidentiality
provisions of the Federal Juvenile Delinquency Act, Congress clearly
intended to limit those confidentiality provisions); In re Richard A., 946
A.2d 204, 212 (R.I. 2008) (noting that the confidentiality generally
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afforded juveniles is not absolute and must sometimes give way to other
legitimate public policies). But see In re W.Z., 957 N.E.2d 367, 376 (Ohio
Ct. App. 2011) (community notification "obscures the foundational
principles upon which the juvenile justice system was built").
Ex post facto
Logan contends that retroactive application of A.B. 579 to
juvenile sex offenders violates the Ex Post Facto Clauses of the United
States and Nevada Constitutions. We conclude that Logan fails to
demonstrate that retroactive application of the legislation is
unconstitutional.
Both the federal and state constitutions prohibit the passage
of ex post facto laws. U.S. Const. art. I, § 10; Nev. Const. art. 1, § 15. This
prohibition forbids the passage of laws that impose punishments for acts
that were not punishable at the time they were committed or impose
punishments in addition to those prescribed at the time of the offense.
Weaver v. Graham, 450 U.S. 24, 28 (1981). Accordingly, to be ex post
facto, a law must both operate retrospectively and disadvantage the
person affected by it by either changing the definition of criminal conduct
or imposing additional punishment for such conduct. Id.
For purposes of ex post facto analysis, a retrospective law is
one that "changes the legal consequences of acts completed before its
effective date." Id. at 31. A.B. 579 clearly operates retrospectively
because it imposes consequences for conduct occurring before its effective
date. See NRS 179D.095(1)(b) (defining a "sex offender" as a person who
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has been adjudicated for a sex offense after July 1, 1956). A.B. 579 does
not alter the definition of any crime, or, in this case, delinquent act.
Therefore, whether the bill is an ex post facto law hinges on whether it
imposes an additional punishment for a past delinquent act.
A two-part test is utilized to determine whether a given
statute imposes a punishment. See, e.g., Smith v. Doe, 538 U.S. 84, 92
(2003). First, we must determine legislative intent. See id. If the intent
was to impose a punishment, the statute is a punishment. See id. If,
however, the intention of the Legislature was to create a civil, nonpunitive
regulatory scheme, we must determine whether the statutory scheme is
"so punitive either in purpose or effect as to negate the State's intention to
deem it civil." Id. (internal quotation marks and brackets omitted).
Legislative intent
Logan baldly states that the legislative intent behind A.B. 579
was punitive, but does not support this assertion with any cogent
argument or citation to authority or legislative history. The intent of
Nevada's prior version of the sex offender registration and community
notification scheme was to create a civil regulatory scheme. Nollette v.
State, 118 Nev. 341, 346, 46 P.3d 87, 91 (2002). And the legislative history
indicates that the only intent behind the current version of the scheme
was compliance with SORNA in order to avoid the loss of federal funds.
As such, Logan has failed to demonstrate that the Legislature intended
A.B. 579 to be anything other than a civil regulatory scheme. Therefore,
we must proceed to consider whether the effects of A.B. 579 are so
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1:J('
punitive in "effect as to negate the State's intention to deem it civil."
Smith, 538 U.S. at 92 (internal quotation marks and brackets omitted).
Effect of A.B. 579
Seven factors are considered when analyzing the effects of
challenged provisions: whether the statutory scheme (1) has traditionally
been regarded as punishment, (2) imposes an affirmative disability or
restraint, (3) promotes the traditional goals of punishment, (4) is
rationally related to a nonpunitive purpose, (5) is excessive in relation to
its nonpunitive purpose, (6) applies only upon a finding of scienter, and (7)
applies to behavior that is already a crime. Kennedy v. Mendoza-Martinez,
372 U.S. 144, 168-69 (1963); see also Smith, 538 U.S. at 97-106 (applying
Mendoza-Martinez factors to determine effect of state sex offender
registration scheme); Palmer v. State, 118 Nev. 823, 829, 59 P.3d 1192,
1196 (2002); Nollette, 118 Nev. at 346-47, 46 P.3d at 91. Because the
Legislature's intent is given deference, "only the clearest proof will suffice
to override legislative intent and transform what has been denominated a
civil remedy into a criminal penalty." Smith, 538 U.S. at 92 (internal
quotation marks omitted); Desimone v. State, 116 Nev. 195, 199-205, 996
P.2d 405, 407-11 (2000) (applying the "clearest proof" test to determine
whether tax was punitive in effect despite contrary legislative intent);
State v. Lomas, 114 Nev. 313, 317-18, 955 P.2d 678, 680-81 (1998)
(applying the "clearest proof' standard in determining whether driver's
license revocation is so punitive in effect as to override legislative intent).
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The seminal case applying the Mendoza-Martinez factors to
sex offender registration and notification laws is Smith v. Doe, 538 U.S. 84
(2003). The legislation at issue there imposed retroactive registration
requirements and community notification provisions on convicted sex
offenders. Smith, 538 U.S. at 90. It required offenders to register with
local authorities, provide certain personal information, and allow the
authorities to fingerprint and photograph them. Id. Depending on the
number of prior convictions and nature of the current offense, offenders
were required to update their registration information either annually for
a period of 15 years, or quarterly for life. Id. Noncompliance subjected
offenders to criminal prosecution. Id. A sex offender's name, aliases, date
of birth, physical description, photograph, address, place of employment,
motor vehicle license and identification numbers, crime convicted of, date,
place, court of conviction, and other information were made available to
the public on the Internet. Id. at 91. The majority in Smith concluded
that the effects of the challenged legislation did not negate the
legislature's intent to establish a civil regulatory scheme. Id. at 105-06.
Applying the Mendoza-Martinez factors to A.B. 579, we
conclude that Logan has failed to demonstrate, by the clearest proof, that
its effect negates the Legislature's intent to create a civil regulatory
scheme. An analysis of each factor follows.
Historical form of punishment
The first factor is whether registration and community
notification have historically been regarded as punishments. Id. at 97.
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Logan asserts that registration and community notification are analogous
to the historical punishments of branding and placing criminals in stocks.
The Supreme Court, however, rejected this exact argument as applied to
adult offenders in Smith, concluding that, unlike historical punishments,
publicity and stigma are not "an integral part of the objective of the
regulatory scheme." 538 U.S. at 99. And Logan does not distinguish
Smith's holding in this regard as applied to juveniles. 7
Logan also points to the Ninth Circuit's decision in United
States v. Juvenile Male, 581 F.3d 977, 989 (9th Cir. 2009), wherein the
court concluded that publication of a juvenile's delinquency adjudication
was a historical form of punishment because information about juvenile
offenses was historically only publicized after a juvenile was transferred to
adult court for punitive purposes. The opinion in Juvenile Male has since
been vacated. United States v. Juvenile Male, 564 U.S. , 131 S. Ct.
2860 (2011). Further, the factual basis for the reasoning in Juvenile Male
does not exist in Nevada; as discussed above, juvenile sex offender records
had been subject to community notification for over a decade before A.B.
579, even when cases had not been transferred to adult court.
Finally, we note that registration and community notification
requirements are of recent origin and cannot be considered a historical
7 To the extent Logan asserts that the juvenile court's continued
jurisdiction over juvenile sex offenders constitutes a historical form of
punishment because it is analogous to lifetime supervision, we conclude
this assertion lacks merit. Cf. Smith, 538 U.S. at 101-02.
31
form of punishment. See Smith, 538 U.S. at 97. We conclude this factor
therefore weighs in favor of the conclusion that A.B. 579 is not a
punishment.
Affirmative disability or restraint
Next, we consider whether A.B. 579 imposes an affirmative
disability or restraint. Smith, 538 U.S. at 97. When inquiring into this
factor, we examine the legislation's effect on those subject to it. Id. at 99-
100.
Logan contends that the registration requirement imposes an
affirmative disability or restraint because it requires offenders to
physically appear several times per year to register. This contention is
foreclosed by our decision in Nollette, where we implicitly rejected this
contention by concluding that the earlier version of Nevada's registration
and community notification provisions "do [es] not place an affirmative
disability or restraint on the sex offender." Nollette, 118 Nev. at 346, 46
P.3d at 91. The provisions under consideration in Nollette, like those
challenged here, also required sex offenders to periodically appear in
person to update their registration information. Id. at 345, 46 P.3d at 90.
And to the extent Logan relies on Smith for the proposition that an in-
person registration requirement imposes an affirmative disability or
restraint, that reliance is misplaced because the Supreme Court merely
noted the lower court's erroneous determination that the challenged
statute contained an in-person registration requirement and did not
decide whether such a requirement constituted an affirmative disability.
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Smith, 538 U.S. at 101; see ACLU of Nev. v. Masto, 670 F.3d 1046, 1056
(9th Cir. 2012) (the Supreme Court's resolution of a factual error in Smith
was not a holding that the in-person registration requirement was an
affirmative disability).
Logan also asserts that the holdings of Smith and Nollette-
which are based in part on the fact that convictions are a matter of public
record—cannot be applied to juvenile offenders whose records of
adjudication are not matters of public record. Although the question is
close, we disagree for two reasons.
First, juvenile sex offender records were available to the public
prior to A.B. 579. As previously discussed, law enforcement was required
to disclose some records to certain members of the public via juvenile
community notification. And the juvenile court was empowered to allow
inspection of unsealed records by any person with "a legitimate interest in
the records." NRS 62H.030(2), NRS 62H.170(1). Thus, juvenile sex
offender records were available to the public, albeit in limited
circumstances, prior to A.B. 579. See United States v. W.B.H., 664 F.3d
848, 856 (11th Cir. 2011) (rejecting juvenile's attempt to distinguish Smith
based on the fact that juvenile records are not a matter of public record
where juvenile court had discretion to permit inspection of the records),
cert. denied, 568 U.S. , 133 S. Ct. 524 (2012).
Second, A.B. 579 itself does not impose an affirmative
disability or restraint on juvenile sex offenders. We are fully aware that to
the extent juvenile sex offender records were not previously accessible to
33
the public, some negative consequences to juveniles almost certainly result
from A.B. 579's community notification provisions. Nevertheless, the
notification provisions themselves do not impose any negative
consequences; those consequences result indirectly from the public's
response to knowledge of the adjudication. See W.B.H., 664 F.3d at 856 &
857 n.5 (any negative consequences resulting from community notification
are "collateral consequence[s] of a legitimate regulation" (citing Smith, 538
U.S. at 99)). But see State v. C.M., 746 So. 2d 410, 418 (Ala. Crim. App.
1999) (finding that subjecting juvenile sex offenders to registration and
community notification imposed an affirmative disability or restraint in
part because it exposed previously confidential adjudication records to
public). And because the statutory scheme expressly prohibits the use of
information obtained from the community notification website to
discriminate, imposition of such disabilities by the community is also
illegal. See NRS 179B.250(2)(e); NRS 179B.270; NRS 179B.280; NRS
179B.285; NRS 179B.290. We conclude that A.B. 579 does not impose an
affirmative disability or restraint on juvenile sex offenders and this factor
weighs in favor of a finding that the statutory scheme does not impose a
punishment.
Traditional aims of punishment
Next, this court must consider whether registration and
community notification promote the traditional aims of punishment.
Smith, 538 U.S. at 97. Logan points out that in Nollette, this court
acknowledged the possibility that registration could have a deterrent
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effect but determined that, "without more," that possibility did not render
the statute punitive. See Nollette, 118 Nev. at 347, 46 P.3d at 91.
Something "more" is present, he asserts, when the statutes are applied to
juveniles.
First, Logan asserts that A.B. 579 is punitive in effect as
applied to juveniles because juvenile offenders are assigned to a tier based
on the offense committed rather than their individual risk to reoffend.
The Smith Court rejected the argument that the Alaska statute was
excessive because it applied to all offenders regardless of risk of
recidivism. 538 U.S at 104. The Supreme Court also rejected the
argument that the statutory scheme was retributive because it based the
length of the registration period on an offender's crime rather than on his
risk of recidivism, concluding that the use of broad categories to determine
the length of the registration period was "consistent with the regulatory
objective." Id. at 102. Like the scheme at issue in Smith, we conclude that
Nevada's scheme of offense-based tiering is consistent with the statute's
goal of protecting the public from recidivist juveniles, 8 it is reasonable to
conclude that juvenile offenders who have committed the most severe
offenses pose the greatest risk to the public. 9
8 Whether risk-based tiering would be a more effective means of
protecting the public is beyond the scope of an ex post facto analysis. See
infra at 37.
9 Relatedly, Logan implies that the statute is retributive because it
requires all sex offenders who have been convicted of a crime against a
continued on next page...
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Second, Logan notes that offenders are subject to prosecution
for failure to comply with the registration requirements. He does not
explain how this fact serves a traditional aim of punishment. The Smith
Court considered the criminal penalty in regard to whether the Alaska
scheme imposed an affirmative disability or restraint and rejected the
contention, concluding that any prosecution resulting from failure to
comply with reporting requirements was separate from the original
offense. Smith, 538 U.S. at 101-02. Logan does not acknowledge this
holding in Smith or attempt to distinguish it as applied to juvenile
offenders.° We conclude that Logan fails to demonstrate that A.B. 579
promotes a traditional aim of punishment as applied to juvenile sex
...continued
child under the age of 18, which includes nearly all juvenile sex offenders,
to register. We decline to consider this assertion because it is not
supported by any cogent argument. See Maresca v. State, 103 Nev. 669,
673, 748 P.2d 3, 6 (1987). For the same reason, we decline to consider his
assertion that imposition of adult registration and community notification
is punitive because the restraint on his liberty "is increased from a period
of approximately 3 years to a lifetime." See also Smith, 538 U.S. at 104.
°This court also implicitly rejected this argument in Nollette. The
statutory scheme under review there provided that noncompliance with
the registration provisions constituted a felony offense. Nollette, 118 Nev.
at 345, 46 P.3d at 90. The court did not specifically discuss that provision,
but did not conclude that the statutory scheme served a traditional aim of
punishment or weighed in favor of a finding that the scheme was punitive.
Id. at 346-47, 46 P.3d at 91.
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offenders and this factor therefore weighs in favor of a finding that the bill
is not punitive.
Rational connection to a nonpunitive purpose
The next factor is whether A.B. 579 is rationally related to a
nonpunitive purpose. Logan asserts that the statutory scheme "cannot be
reconciled with any legitimate public purpose" and is irrational because it
is not the most cost-effective means to protect the public. We disagree.
Subjecting juvenile sex offenders to registration and
community notification has the legitimate, nonpunitive purpose of
protecting the public. See United States v. Salerno, 481 U.S. 739, 747
(1987) (public protection is a legitimate regulatory purpose). This purpose
is furthered by notifying the community of the presence of juvenile sex
offenders so that it may take any protective, nondiscriminatory actions
deemed necessary. See Juvenile Male, 670 F.3d at 1010-11 (registration
and community notification of juvenile sex offenders satisfies rational
basis review); W.B.H. , 664 F.3d at 859; see also Doe v. State, 189 P.3d 999,
1015 (Alaska 2008) (considering statutes as applied to adult offenders);
accord Helman v. State, 784 A.2d 1058, 1075 (Del. 2001). And the fact
that the chosen method is not the most cost-effective does not render it
irrational. See Smith, 538 U.S. at 103 ("A statute is not deemed punitive
simply because it lacks a close or perfect fit with the nonpunitive aim it
seeks to advance.").
Because the Smith Court stated that a rational connection to a
nonpunitive purpose "is a [m]ost significant" factor, id. at 102 (alteration
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' 1
37
in original) (internal quotation marks omitted), this factor weighs heavily
in favor of a finding that the effect of the challenged legislation is not
punitive.
Excessiveness
The fifth factor to consider is whether A.B. 579 is excessive in
relation to its nonpunitive purpose. See Smith, 538 U.S. at 97. The
inquiry into whether a statutory scheme is excessive in relation to its
regulatory purpose "is not an exercise in determining whether the
legislature has made the best choice possible to address the problem it
seeks to remedy. The question is whether the regulatory means chosen
are reasonable in light of the nonpunitive objective." Id. at 105.
Logan contends that A.B. 579 is excessive in relation to its
stated purpose because it does not take into consideration juveniles' low
recidivism rates and is not cost-effective."
Recividism
Logan cites to the Supreme Court's conclusion in Smith that the
Alaska statutory scheme was not excessive because the legislature could have
reasonably concluded that sex offenders posed a substantial risk to reoffend.
Logan then points to research indicating that the rate of recidivism for
juvenile sex offenders is low. According to the literature cited by Logan,
"
Logan also asserts that the statutory scheme conflicts with the
purpose of the juvenile court system. He does not provide any argument
tying the alleged conflict to the excessiveness of the bill. As discussed
above, the imposition of registration and community notification does not
conflict with the purpose of Nevada's juvenile justice system.
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juvenile sex offenders are highly amenable to treatment and have low rates of
recidivism. See Justice Policy Institute, Youth Who Commit Sex Offenses:
Facts and Fiction, available at http://www. justicepolicy. org/uplo ads/
justicepolicy/documents/08-08_fac_sornafactfiction_jj.pdf; Justice Policy
Institute, The Negative Impact of Registries on Youth: Why are Youth
Different from Adults?, available at http://www.justicepolicy.org/uploads/
justicepolicy/documents/08-08_fac_sornakidsaredifferent_jj.pdf. The sources
cited by Logan, however, indicate that juvenile sex offenders have between a
1.7 and 18 percent chance of conviction for another sex offense. See also
Center for Sex Offender Management, Recidivism of Sex Offenders (May
2001), available at http://www.csom.org/pubs/recidsexof.html (noting a 13-
percent base rate of overall recidivism for sex offenders but that results differ
across studies); Center for Sex Offender Management, Frequently Asked
Questions About Sexual Assault and Sex Offenders, http://www.csom.org/faq/
index.html (last visited May 16, 2012) (reoffense rates for juvenile sex
offenders are approximately 12 to 24 percent).
Logan does not provide any statistics regarding recidivism rates
for adult sex offenders. This court's own limited research indicates that adult
sex offenders have similar rates of recidivism. See Recidivism of Sex
Offenders, supra (noting a 13-percent base rate of overall recidivism for sex
offenders but that results differ across studies); Texas Department of Health
and Human Services, Council on Sex Offender Treatment, Treatment
of Sex Offenders—Recidivism, available at http://www. dshs.state. tx. us/csot/
csot_trecidivism.shtm (last updated April 30, 2012) (average 13-percent
recidivism rate for adult offenders); State of Connecticut, Office of Policy
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and Management, Criminal Justice Policy & Planning Division,
Recidivism among Sex Offenders in Connecticut (Feb. 15, 2012),
available at http://www.ct.gov/opm/lib/opm/cjppd/cjresearch/recidivismstudy/
sex_offender_recidivism_2012_final.pdf (sex offenders have 3.6-percent arrest
rate for new sex-related charges). And the State points to authority stating
that research into the rates of juvenile sex offender recidivism is less
than comprehensive. See Center for Sex Offender management, Recidivism
of Sex Offenders (May 2001), available at http://www.csom.org/pubs/
recidsexof.html; see also NRS 62H.300(2) (recognizing the need for greater
statistical analysis regarding recidivism rates of juvenile sex offenders).
Even assuming that juveniles do have lower recidivism rates
than adults, the Smith Court flatly rejected the argument that application
of registration and notification requirements to an entire class of sex
offenders, rather than only to those offenders who posed the highest risk
to reoffend, rendered the scheme excessive in scope. Smith, 538 U.S. at
104. We conclude that Logan fails to demonstrate that the difference in
recidivism rates is so great as to render the Legislature's concern with
recidivism of juvenile sex offenders unreasonable. See W.B.H., 664 F.3d at
860 (rejecting argument that lower rates of recidivism for juvenile sex
offenders as compared to adult sex offenders renders registration and
notification requirements excessive as applied to juvenile offenders).
Cost-effectiveness
Logan also makes a fiscal argument. He points out that A.B.
579 was passed quickly with the expectation that Nevada would receive
grant monies from the federal government in return. According to Logan,
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those monies never materialized. Further, he claims A.B. 579 will require
the State of Nevada to spend precious funds in an inefficient manner
because it requires the supervision of a large group of low-risk offenders.
Logan presents a compelling policy consideration that
warrants serious reflection by the Legislature. But policy considerations
are not material to our ex post facto analysis because they are relevant
only to whether the statutory scheme is the best manner to achieve
legislative goals, and that question is solely in the Legislature's purview.
In our ex post facto analysis, we are limited to considering whether the
statutory scheme is reasonable in light of its goals, see Smith, 538 U.S. at
105, and Logan has failed to demonstrate that A.B. 579 is unreasonable in
light of the goal of public safety.
Lastly, although not discussed by the parties, we find it
significant that A.B. 579 does not subject all juveniles adjudicated for
offenses involving sex to registration and notification. Only adjudications
for three offenses—sexual assault, battery with intent to commit sexual
assault, and lewdness with a child—and attempts or conspiracy to commit
those offenses trigger the requirements. NRS 62F.200(1), NRS
179D.095(1)(b). Conversely, adults are subject to registration and
notification for a much broader category of offenses. See NRS 179D.097.
And juvenile offenders are excluded from registration and notification
requirements if they were under the age of 14 at the time of the offense or
if the offense involved consensual sexual conduct where the victim was at
least 13 years old and the offender was not more than 4 years older than
41
the victim. NRS 62F.200(2); NRS 179D.097(2)(b). These restrictions
appear to be an attempt to limit the application of A.B. 579 to only those
juvenile sex offenders who pose the highest risk of reoffense, and thus
undercut Logan's contention that the statutory scheme is excessive.
Accordingly, we conclude that A.B. 579 is not excessive as applied to
juvenile sex offenders, and this factor weighs in favor of a finding that
A.B. 579's effect is not punitive. 12
Remaining factors
The final factors to consider in our ex post facto analysis are
whether the statutory scheme applies to conduct that is already a crime
and whether the scheme takes effect only after a finding of scienter. See
Smith, 538 U.S. at 105. These factors "are of little weight." Id. The
challenged legislation applies only to conduct that was a delinquent act.
This factor thus weighs in favor of a finding that A.B. 579 is punitive.
Just as in Smith, the statutory requirements are not founded on any
"present or repeated violation"; therefore, no finding of scienter is required
12Lo gan relies heavily on the Supreme Court of Alaska's decision in
Doe v. State, 189 P.3d 999 (Alaska 2008), the Alabama Court of Criminal
Appeals' holding in State v. C.M., 746 So. 2d 410 (Ala. Crim. App. 1999),
and the Kansas Supreme Court's decision in State v. Myers, 923 P.2d
1024, 1041-42 (Kan. 1996), wherein each court determined that
registration and community notification requirements were excessive. We
are not persuaded by these cases, particularly because they do not conform
to the Supreme Court's analysis in Smith.
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to trigger the statutory requirements. This factor weighs in favor of
finding that the bill is not punitive. Id.; Helman, 784 A.2d at 1078.
Considering all the factors, we conclude that Logan has failed
to demonstrate by the "clearest proof' that the effects of A.B. 579 are so
punitive as to negate the legislative intent to impose a civil regulatory
scheme. Six of the seven factors, including the one to be given the most
weight, indicate that the statutory scheme is not punitive, while only one
factor, one to be accorded little weight, indicates a punitive effect. 13
Accordingly, we conclude that retroactive application of A.B. 579 to
3-3 Inlight of our conclusion here, Logan's contention that A.B. 579
imposes cruel and/or unusual punishment on juvenile sex offenders
necessarily fails. See U.S. Const. amend. VIII; Nev. Const. art. 1, § 6; Doe
v. Weld, 954 F. Supp. 425, 436 (D. Mass. 1996) (because juvenile sex
offender registration requirements are probably not punishment, plaintiff
could not succeed on claim that imposition of requirements constituted
cruel and unusual punishment); People ex rel. Birkett v. Konetski, 909
N.E.2d 783, 799 (Ill. 2009) (concluding that imposition of registration
requirements on juvenile offenders was not punishment and thus does not
constitute cruel and unusual punishment, and rejecting juvenile's request
to reconsider that conclusion in light of Supreme Court's holding in Roper
v. Simmons, 543 U.S. 551 (2005)); In re D.L., 160 S.W.3d 155, 162 (Tex.
App. 2005) (because registration and notification are nonpunitive,
statutory scheme does not constitute cruel and unusual punishment); see
also, e.g., State v. Guidry, 96 P.3d 242, 257 (Haw. 2004) (adult sex offender
registration requirements are not punishment and thus do not violate
state constitution's ban on cruel and unusual punishment); People v.
Adams, 581 N.E.2d 637, 640-41 (Ill. 1991) (same).
43
juvenile sex offenders does not violate the Ex Post Facto Clauses of the
United States and Nevada Constitutions. 14
Right to jury trial
Logan next contends that the imposition of registration and
community notification on juvenile sex offenders transforms the juvenile
system into a criminal system and implicates the right to a jury trial. We
disagree.
The fact that A.B. 579 subjects juvenile sex offenders to
registration and community notification does not eliminate the many
differences between the juvenile and adult justice systems. For example,
juvenile sex offenders are not "convicted," cannot be sentenced to prison,
and are not subject to the civil disabilities resulting from convictions.
NRS 62E.010. The focus on rehabilitation in the juvenile system is much
greater than in the criminal system. And when implementing the juvenile
code, the child's welfare is a central concern. See NRS 62A.360(1)(a); In re
Seven Minors, 99 Nev. 427, 432-33, 664 P.2d 947, 950-51 (1983),
disapproved on other grounds as stated in In re William S., 122 Nev. 432,
14Lo ganalso contends that application of retroactive registration
and community notification requirements violates the Contracts Clauses
of the United States and Nevada Constitutions. He does not, however,
support this assertion with cogent argument or citation to persuasive
authority. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987).
We therefore decline to consider this contention.
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442 n.23, 132 P.3d 1015, 1021 n.23 (2006). There is no corresponding
concern with the welfare of adult offenders in the criminal code.
Logan points to authority from other state courts invalidating
laws or regulations imposed on juveniles in the absence of a jury trial.
The holdings in these cases, however, are based on the conclusion that the
challenged legislation subjected juvenile offenders to the same criminal
punishments as adults convicted in the criminal system. See In re C.B.,
708 So. 2d 391, 399-400 (La. 1998) (invalidating statute and corresponding
regulation allowing juvenile delinquents to be housed in adult penal
facilities where they were required to perform hard labor); In re Hezzie R.,
580 N.W.2d 660, 674 (Wis. 1998) (holding statute providing for the
transfer of juvenile delinquents to adult prisons in the absence of a jury
trial unconstitutional). Our conclusion that registration and community
notification are not punishments forecloses Logan's argument that it is
unconstitutional to impose these "criminal punishments" on juveniles
without the protection of a jury trial. See, e.g., United States v. Juvenile
Male, 670 F.3d 999, 1014 (9th Cir.), cert. denied, 568 U.S. , 133 S. Ct.
234 (2012) (fact that juvenile sex offenders are subject to the same
requirements as adult sex offenders does not transform juvenile
proceedings into criminal proceedings); In re Jonathon C.B., 958 N.E.2d
227, 247 (Ill. 2011) ("[T]he fact that in a narrow set of delineated
circumstances delinquent minors face some of the same collateral
consequences as convicted adult criminals does not equate a delinquency
adjudication with a criminal conviction."), cert. denied, 568 U.S. , 133 S.
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Ct. 102 (2012); Konetski, 909 N.E.2d at 797-98 (rejecting juvenile's claim
that imposing sex offender registration and limited community
notification requirements on juvenile offender in absence of a jury trial
violate procedural due process where those requirements were not
punishment); see also McKeiver v. Pennsylvania, 403 U.S. 528 (1971)
(discussing due process rights of juvenile offenders and concluding that
fundamental fairness does not require a jury trial in juvenile proceedings)
(plurality opinion). But see In re C.P., 967 N.E.2d 729, 734, 748-50 (Ohio
2012) (concluding that registration and community notification are
punishment and their mandatory imposition on juveniles is fundamentally
unfair because it is contrary to the rehabilitative purpose of the juvenile
system and the juvenile court lacks discretion regarding imposition of an
adult punishment on juvenile offenders).
Despite our decision today upholding the constitutionality of
mandatory sex offender registration and community notification for juvenile
offenders, we echo the juvenile court's concerns regarding this legislation.
Numerous studies and commentators indicate that subjecting juvenile
sex offenders to registration and community notification may not be an
effective policy decision. See, e.g., Justice Policy Institute, The Negative
Impact of Registries on Youth: Why are Youth Different from Adults?,
available at http://www.justicepolicy.org/uploads/justicepolicy/documents/
08-08_fac_sornakidsaredifferent jj.pdf (stigma resulting from sex offender
registration undermines treatment and rehabilitation programs for
juveniles); Justice Policy Institute, Youth Who Commit Sex Offenses: Facts
and Fiction, available at http://www.justicepolicy.org/uploads/justicepolicy/
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documents/08-08fac_sornafactfiction jj.pdf (noting that juveniles are
especially amenable to treatment). As noted by Logan, the registration and
notification programs are expensive, and there are doubts regarding the
effectiveness of community notification in preventing crime. See, e.g.,
Human Rights Watch, No Easy Answers (Sept. 12, 2007), available
at http://www.hrw.org/node/10685/section/2; Michele L. Earl-Hubbard,
The Child Sex Offender Registration Laws: The Punishment, Liberty
Deprivation, and Unintended Results Associated with the Scarlet Letter
Laws of the 1990's, 90 Nw. U. L. Rev. 788, 855-56 (1996) (noting that
community notification can impede the development of normal social
skills, which can, in turn, lead to recidivism); Britney M. Bowater,
Comment, Adam Walsh Child Protection and Safety Act of 2006: Is There a
Better Way to Tailor the Sentences of Juvenile Sex Offenders?, 57 Cath. U.
L. Rev. 817, 836-37 (2008) (noting that the American Bar Association and
Coalition for Juvenile Justice strongly oppose requiring juvenile sex
offenders to register because of its potential to negatively affect treatment
of juvenile offenders).
We agree that the prior statutory scheme, which left the
decision to subject juvenile sex offenders to adult registration and
community notification requirements to the discretion of the juvenile court
based on specified factors, was a superior method of protecting the various
interests at stake, including public safety, the welfare of juvenile sex
offenders, and conservation of public resources. The juvenile court, relying
on extensive information specific to the juvenile and the offense, is in the
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best position to determine whether adult registration and community
notification is necessary in a given case. And, significantly, since passage
of A.B. 579, the United States Attorney General exercised his statutory
authority "to provide that jurisdictions need not publicly disclose
information concerning persons required to register on the basis of
juvenile delinquency adjudications." Supplemental Guidelines for Sex
Offender Registration and Notification, 76 Fed. Reg. 1630-31, 1632 (Jan.
11, 2011). Accordingly, "[t]here is no remaining requirement under
SORNA that jurisdictions engage in any form of public disclosure or
notification regarding juvenile delinquent sex offenders." Id. Thus, it
appears Nevada would suffer no loss of funding if the Legislature removed
the provisions of A.B. 579 requiring all juvenile sex offenders to submit to
community notification. We recognize that these policy considerations are
outside the scope of our review of the challenged legislation, see, e.g.,
Anthony v. State of Nev., 94 Nev. 338, 341, 580 P.2d 939, 941 (1978)
("[T]he judiciary will not declare an act void because it disagrees with the
wisdom of the Legislature."), but nonetheless invite the Legislature to
reconsider A.B. 579 and its application to juvenile sex offenders.
We grant the petition for a writ of mandamus and direct the
clerk of this court to issue a writ directing the juvenile court to vacate its
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order declaring A.B. 579 unconstitutional as applied to juvenile sex
offenders.
J.
We concur:
,c. J.
Pickering
J
Parraguirre
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• •
417;Wti
CHERRY, J., with whom HARDESTY and SAITTA, JJ., agree, dissenting:
I would deny the petition because I conclude that the
retroactive application of mandatory sex offender registration and
community notification requirements on juvenile sex offenders violates the
Ex Post Facto Clauses of the United States and Nevada Constitutions.
U.S. Const. art. I, § 10; Nev. Const. art. 1, § 15.
I agree that the Supreme Court's decision in Smith v. Doe, 538
U.S. 84 (2003), provides the appropriate framework for analysis of this
issue. I also agree that Logan fails to demonstrate that the legislative
intent of A.B. 579 was to punish. I conclude, however, that the statutory
scheme, when applied to juvenile sex offenders, is "so punitive either in
purpose or effect as to negate the State's intention to deem it civil." Id. at
92 (internal quotation marks and brackets omitted).
Initially, I agree with the majority's conclusions regarding four
of the seven factors—that the statutory scheme does not promote the
traditional aims of punishment, is rationally related to a legitimate state
interest, is not based on a finding of scienter, and applies to conduct that
is already a crime. I disagree with the majority's conclusions regarding
the remaining factors, however.
Historical form of punishment
First, I conclude that registration and community notification,
as applied to juvenile sex offenders, are akin to the historical punishments
of branding and shaming. The Smith Court rejected this argument, in
part, because any resulting stigma arose from the dissemination of
accurate information about an offender's criminal record—the majority of
which was already public—not from any public display for ridicule and
shaming. Id. at 98. The Court therefore concluded that publication of sex
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offenders' records on a website is "more analogous to a visit to an official
archive of criminal records than it is to a scheme forcing an offender to
appear in public with some visible badge of past criminality." Id. at 99.
This analogy fails when applied to juvenile sex offenders because
juveniles' records are inaccessible to the general public in the absence of a
court order. See NRS 62H.030(2)-(3).
I recognize that, prior to A.B. 579, juvenile community
notification allowed the disclosure of records of Tier II and III juvenile sex
offenders. Office of the Nev. Attorney Gen., Nevada's Guidelines and
Procedures for Community Notification of Juvenile Sex Offenders, Office of
the Attorney General, § 8.00(3)-(4) (Rev. Feb. 2006). This disclosure,
however, was limited to persons or entities who were "reasonably likely to
encounter the juvenile sex offender." Id. That is a far cry from the
notification provisions of A.B. 579, under which any member of the public,
likely to encounter the juvenile or not, must be provided with the juvenile
sex offender's registration information upon request.' NRS 179B.250,
NRS 179D.475. In my opinion, the limited disclosure of juvenile sex
offender records that existed prior to A.B. 579 does not allow for the
conclusion that the bill's community notification provisions are "analogous
to a visit to an official archive of criminal records."
'Registration records are exempted from disclosure on the
community notification website if the sex offender is a Tier I offender and
was not adjudicated for a crime against a child. NRS 179B.250(7)(b).
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ET
Affirmative disability or restraint
Second, I conclude that A.B. 579 imposes an affirmative
disability or restraint on juvenile sex offenders. As acknowledged by the
Smith Court, the public availability of conviction information "may have a
lasting and painful impact on the convicted sex offender." 538 U.S. at 101.
The Court concluded that community notification did not impose
disabilities or restraints on adult offenders because any adverse
consequences, such as occupational or housing disadvantages, flow not
from community notification provisions, but from the fact of conviction,
which is a matter of public record. Id. The Court also noted that adverse
consequences could have otherwise occurred via the use of routine
background checks by employers and landlords. Id. at 100.
Such reasoning cannot be applied to juvenile sex offenders,
whose records are not generally public. Because juvenile sex offender
records were not available to the public in the absence of a court order,
NRS 62H.030(2), routine background checks would not reveal these
records. As discussed above, A.B. 579's community notification
requirements greatly expand the limited disclosure of records that
occurred under juvenile community notification. The prior limited
disclosure does not justify the conclusion that the bill does not impose an
additional affirmative disability or restraint on juvenile sex offenders. I
conclude that any occupational or housing disadvantages suffered by
delinquent sex offenders result not from the fact of adjudication, but
directly from the community notification requirement. See State v. C.M.,
746 So. 2d 410, 418 (Ala. Crim. App. 1999) (concluding that subjecting
juvenile sex offenders to registration and community notification
requirements imposed an affirmative disability or restraint in part
3
because it exposed confidential adjudication records to the public). And I
note that such discrimination is particularly burdensome on juveniles who
are newly independent and have not yet had the opportunity to establish
themselves in the world. See In re C.P., 967 N.E.2d 729, 741-42 (Ohio
2012) (considering stigmatization and other negative consequences of
community notification on juvenile offenders in the context of a cruel-and-
unusual-punishment claim).
The majority concludes that the notification provisions
themselves do not impose any negative consequences because those
consequences "result indirectly from the public's response to knowledge of
the adjudication." See majority opinion ante at 34. This conclusion fails to
account for the real-world effect of A.B. 579's notification provisions. But
for those provisions, the public would have no easy means to access
juvenile sex offenders' records. For these reasons, I conclude that A.B. 579
imposes an affirmative disability or restraint on juvenile sex offenders.
Excessiveness
Third, I conclude that A.B. 579 is excessive in relation to its
purpose. I am cognizant of the fact that the excessiveness analysis is not
an inquiry into "whether the legislature has made the best choice possible
to address the problem it seeks to remedy." Smith, 538 U.S. at 105.
Nevertheless, I conclude that the statutory scheme, as applied to juvenile
sex offenders, is not reasonable in light of the Legislature's nonpunitive
objective. See id. (the excessiveness inquiry focuses on "whether the
regulatory means chosen are reasonable in light of the nonpunitive
objective").
The mandatory application of community notification
requirements to juvenile sex offenders is unreasonable in light
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4
of the lower recidivism rates among juveniles as compared to adult
offenders. See majority opinion ante, at 38-39. And juvenile offenders are
highly amenable to treatment. Justice Policy Institute, The Negative
Impact of Registries on Youth: Why are Youth Different from Adults?,
available at http://www.justicepolicy.org/uploads/justicepolicy/documents/
08-08_fac_sornakidsaredifferent jj.pdf; Affidavit of Dr. Rayna Rogers ¶ 18,
Dec. 20, 2007 (noting that "most youthful offenders can be fully treated"
and their "recidivism rate is significantly lower than adult offenders")
(exhibit to motion filed in district court on Dec. 28, 2007). Juveniles'
amenability to treatment is especially significant because the juvenile
justice system is specifically designed to provide juvenile delinquents with
needed treatment. See NRS 62G.410 ("It is the policy of this state to
rehabilitate delinquent children."); see also NRS 62A.360(1)(a) (every child
under the jurisdiction of the juvenile court shall receive the guidance,
care, and control that is conducive to the best interest of the State and the
child's welfare); NRS 62E.280(1)(a) (the juvenile court may order any
psychological, psychiatric, or other care or treatment that is in the best
interest of the juvenile); NRS 63.180 (juvenile delinquents placed in state
facilities receive a program of treatment aimed at altering behavior and
attitude so that the juvenile may freely function in his or her regular
environment).
Moreover, A.B. 579 imposes mandatory community
notification requirements regardless of risk of reoffense and assigns
juvenile sex offenders to a tier based solely on the offense committed. NRS
179D.115-.117; NRS 179D.441; NRS 179D.445; NRS 179D.460; NRS
179D.475. Considering juveniles' low recidivism rates and amenability to
treatment, it is my opinion that the statutory scheme is grossly
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5
overinclusive and needlessly sweeps up children who have a very low risk
of recidivism. See Smith, 538 U.S. at 116-17 (Ginsburg, J., dissenting);
Doe, 189 P.3d at 1017. Under this legislation, even juveniles who have
successfully completed treatment and been certified as a low risk to
reoffend will remain subject to registration and community notification
requirements for a minimum of ten years. See NRS 179D.490. Further,
adults, adjudicated delinquent perhaps decades ago, who have been
rehabilitated and successfully reintegrated into society, will now be
subject to its requirements. See NRS 179D.095(1).
Under the prior version of juvenile community notification,
only organizations deemed reasonably likely to encounter a juvenile sex
offender were actively notified of a juvenile's presence in the community.
Office of the Nev. Attorney Gen., Nevada's Guidelines and Procedures for
Community Notification of Juvenile Sex Offenders, Office of the Attorney
General, § 8.0 (Rev. Feb. 2006). A.B. 579 requires that certain
organizations be notified regardless of any likelihood of encountering a
juvenile offender. NRS 179D.475(2). Such a broad scope of notification is
completely unnecessary considering juveniles' low recidivism rates and
amenability to treatment. A.B. 579, as applied to juvenile sex offenders, is
excessive in relation to its purpose of public protection.
Balancing all of the factors, I conclude that the imposition of
mandatory registration and community notification requirements on
juvenile sex offenders constitutes a punishment. See Bell v. Wolfish, 441
U.S. 520, 539 n.20 (1979) (explaining that harsh conditions imposed to
achieve goals that can be attained in many alternative, less harsh ways
generally supports a finding that the purpose of the conditions is to
punish). Therefore, retroactive application of A.B. 579 to juvenile
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offenders violates the Ex Post Facto Clauses of the Nevada and United
States Constitutions.
I wholeheartedly join my colleagues' invitation to the
Legislature to reconsider this legislation as applied to juveniles. I urge
our legislators to give serious consideration to the concerns raised by the
juvenile court and presented in this court's opinion today.
C Lx,
Cherry
We concur:
-4,4\
Har,
Saitta
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