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