State v. Heiskell

Johnson, J.

(dissenting) — I agree there is a two-year mandatory registration period under subsection (4) of RCW 9A.44.140. I disagree, however, with the majority’s conclusion that, in enacting the 1991 amendments to the Community Protection Act of 1990,4 the Legislature intended to restrict the right of juveniles to petition for relief under subsection (3) of the statute. The majority’s restrictive reading of the statute is contrary to its plain language and the Legislature’s intent to give judges discretion in this area of the law. I would interpret the statute to preserve judicial discretion and advance the Legislature’s intent to make it easier for younger juveniles to be relieved of the duty to register. I respectfully dissent.

The sex offense Heiskell admitted to consisted of touching his younger sister’s buttocks under her clothing.5 The juvenile court judge felt "this may [have been] the perfect case for not requiring” registration, but believed he did not have discretion to consider Heiskell’s petition to be relieved of the duty to register until two years had passed. Excerpt of Disposition Proceedings at 5. Heiskell was classified as a "minor offender,” and given a special sex offender disposition alternative (SSODA) in lieu of confinement on the basis he was a first time offender and the probation officer’s opinion that he was amenable to treatment and did not pose a risk to the community.6

In enacting the Community Protection Act of 1990 (Act), the Legislature recognized the need for flexibility in sex offender registration matters. Thus, it prescribed determinate registration periods for certain classes of sex offend*127ers,7 but nonetheless gave judges discretion to relieve any person of the duty to register at any time upon a showing by clear and convincing evidence that registration will not serve the purpose of the statute. RCW 9A.44.140(3). There is no question Heiskell could have been relieved of the duty to register had the disposition occurred before the Legislature amended the Act in 1991.

In 1991, the Legislature added a new subsection to RCW 9A.44.140, and amended RCW 9A.44.140(3). Laws of 1991, ch. 274, § 3. The legislative history concerning these changes indicates the Legislature intended to make it easier for juveniles to be relieved of the duty to register because registration was being imposed in situations where it did not serve the purposes of the Act.8 Rather than restricting or limiting the ability of younger juveniles to be relieved of the duty to register, this new section was intended to provide the court with greater discretion with regard to younger juveniles.

The plain language of the amended statute and new subsection are totally consistent with this reading of the statute. The amended statute provides, in relevant part:

(3) Any person having a duty to register under RCW 9A.44.130 may petition the superior court to be relieved of that duty . . . .The court shall consider the nature of the registrable offense committed, and the criminal and relevant *128noncriminal behavior of the petitioner both before and after conviction, and may consider other factors.
Except as provided in subsection (4) of this section, the court may relieve the petitioner of the duty to register only if the petitioner shows, with clear and convincing evidence, that future registration of the petitioner will not serve the purposes of RCW 9A.44.130 . . . .
(4) An offender having a duty to register under RCW 9A.44.130 for a sex offense committed when the offender was a juvenile may petition the superior court to be relieved of that duty .... The court may relieve the petitioner of the duty to register for a sex offense that was committed while the petitioner was fifteen years of age or older only if the petitioner shows, with clear and convincing evidence, that future registration of the petitioner will not serve the purposes of RCW 9A.44.130 .... The court may relieve the petitioner of the duty to register for a sex offense that was committed while the petitioner was under the age of fifteen if the petitioner (a) has not been adjudicated of any additional sex offenses during the twenty-four months following the adjudication for the sex offense giving rise to the duty to register, and (b) the petitioner proves by a preponderance of the evidence that future registration of the petitioner will not serve the purposes of RCW 9A.44.130 ....

RCW 9A.44.140 (emphasis added).

The majority bases its reading of the statute on the "except” language in subsection (3) and concludes "[sjubsection (3) applies to everyone '[ejxcept as provided in subsection (4).’ ” Majority at 122. But a closer reading of subsection (3) shows "except” refers to the burden of proof, not the age of the person seeking relief. Properly read, subsection (3) means the "clear and convincing” standard applies in all cases, except where the preponderance of evidence standard is available as provided in subsection (4). Because the Legislature did not alter the "any person” language in the first sentence of subsection (3) or refer to the age of the offender in the "except” sentence, subsection (3) remains as it existed before the 1991 changes.

Even assuming the statute is susceptible to differing *129interpretations, our case law requires we adopt the construction that best advances the overall intent of the Legislature. Hart v. Peoples Nat’l Bank, 91 Wn.2d 197, 203, 588 P.2d 204 (1978); Human Rights Comm’n ex rel. Spangenherg v. Cheney Sch. Dist. No. 30, 97 Wn.2d 118, 121, 641 P.2d 163 (1982). Restricting judicial discretion with regard to younger juveniles is contrary to the Legislature’s overall intent to provide judicial discretion in juvenile criminal matters, as expressed in the Juvenile Justice Act of 1977 (JJA), RCW 13.40. See State v. Hayden, 72 Wn. App. 27, 31, 863 P.2d 129 (1993). The JJA differs from the Sentencing Reform Act of 1981 in that the underlying purpose of the JJA is both rehabilitation and punishment. State v. Rice, 98 Wn.2d 384, 393-94, 655 P.2d 1145 (1982). Rehabilitation requires sentencing flexibility and judicial discretion. Thus, rather than subjecting all juvenile sex offenders to purely determinate sentences under the JJA, the Legislature provided, among other things, the special sex offender disposition alternative. RCW 13.40.160(5). In addition, the court has broad discretion under the JJA with regard to exceptional sentences and modification of disposition orders.

I am persuaded that the Legislature did not intend to restrict the rights of juveniles under subsection (3) of the statute. I would hold, as did the Court of Appeals, that juveniles who commit sex offenses while under 15 years of age may petition for relief from the registration requirement under subsection (3) or (4) of the statute. My reading of the statute would preserve the overall legislative intent to give judges discretion in this area of the law and have no adverse impact on public safety.

Madsen and Sanders, JJ., concur with Johnson, J.

Laws of 1990, ch. 3.

Heiskell was 13 years old at the time and his sister was 9. In addition to this conduct, there was alleged but uncharged conduct of the same seriousness.

Under SSODA, the juvenile court has discretion to provide community supervision and treatment in lieu of confinement for first time oifenders regardless of their age. RCW 13.40.160(5).

RCW 9A.44.140(b) provides, for example, that the duty to register for a person convicted of a class B sex felony ends 15 years after the last date of release from confinement.

Representative Hargrove, the sponsor of the amendment, explained:

"I think that as we wound together the sex offender registration pieces of the legislation along with all of the up penalties we have had over the last several years we have changed a number of things to felonies that uh, I think are questionable. I don’t question that they should he sanctioned as wrong, but uh changing them to felonies is questionable and then we have added the layer of sex registration on top of it, so you have uh, two kids, two years apart, two and a half years apart, playing doctor, a parent gets upset, the prosecutor prosecutes and then they have to register as sex offenders] for the next ten years, and I really don’t think that that was our intent of this. We are trying to get the bad actors and I think, and uh notify the public of the bad actors and I think that this will uh introduce just a small amount of common sense into the sex registration process, so I urge your support.” Pet. for Review App. C at 5 (House Judiciary Comm. Tape H-52-JUD-20b, Feb. 27, 1991).