People in Interest of Z.B.

757 N.W.2d 595

2008 SD 108

The PEOPLE of the State of South Dakota In the Interest of Z.B., a Minor Child and Concerning A.B. and H.B., Respondents.

No. 24619.

Supreme Court of South Dakota.

Argued April 24, 2008.

Decided November 5, 2008.

Staci L. Reindl, Francy E. Foral of Reindl Law, Spearfish, SD, for appellant Z.B.

Lawrence E. Long, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, S.D, for appellee State of South Dakota.

SABERS and KONENKAMP, Justices.

[¶ 1.] Z.B. admitted in juvenile court to committing two first degree rapes. At the time of these offenses, he was fifteen. He was court ordered to register as a sex offender. South Dakota law requires that Z.B. remain on the sex offender registry for life. Adults who commit the same offense may be able to have their names removed from the registry if they obtain a suspended imposition of sentence. There is no equivalent opportunity for juvenile offenders like Z.B. Accordingly, under the Equal Protection Clauses of the United States Constitution and the South Dakota Constitution, Z.B. and similarly situated juveniles are denied equal protection. We reverse.

I.

[¶ 2.] At the time of the rapes, Z.B. was fifteen years old and residing with his adoptive parents. His adoptive parents had two biological children, G.B., a nine-year-old girl and W.B., an eight-year-old boy. The remainder of the family consists of two other adopted girls, K.B., seven years old, and M.B., four years old.

[¶ 3.] One night, Z.B. was watching the children while the parents were at a meeting. When the parents returned home, G.B. told them that Z.B. tried to "sex her." On January 18, 2007, a petition was filed that alleged Z.B. was a child in need of supervision. An investigation was conducted and it was determined that Z.B. had engaged in sex with G.B. and K.B. A third amended petition contained five counts:

Count 1: Child in Need of Supervision

Count 2: Sexual Contact with a Child Under Sixteen Years of Age, with the victim being G.B.

Count 3: Sexual Contact with a Child Under Sixteen Years of Age, with the victim being K.B.

Count 4: Rape in the First Degree, with the victim being G.B.

Count 5: Rape in the First Degree, with the victim being K.B.

[¶ 4.] During the adjudicatory hearing, Z.B. admitted to Counts 4 and 5. A dispositional hearing was held where the circuit court ordered that Z.B. be remanded to the custody of the Department of Corrections and register as a sex offender. Z.B. appeals.¹

II.

[¶ 5.] Z.B. challenges SDCL 22-24B-2 on equal protection grounds. This raises questions of statutory interpretation and the constitutionality of a statute. Both questions are reviewed by this Court de novo. Buchholz v. Storsve, 2007 SD 101, ¶ 7, 740 N.W.2d 107, 110 (additional citation omitted). There is a strong presumption a statute is constitutional. Meinders v. Weber, 2000 SD 2, ¶ 28, 604 N.W.2d 248, 260 (citing State v. Laible, 1999 SD 58, ¶ 10, 594 N.W.2d 328, 331 (other citation omitted)). Only when a statute plainly and unmistakably violates a constitutional provision will we declare it unconstitutional. Id. When deciding the constitutionality of a statute we do not determine whether the "legislative act is unwise, unsound, or unnecessary," but only if it is constitutional. State v. Allison, 2000 SD 21, ¶ 5, 607 N.W.2d 1, 2. In an equal protection challenge, "`[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.'" Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 1006, 35 L.Ed.2d 351 (1973) (citations omitted).

[¶ 6.] In 1997, the Legislature amended our sex offender registration statute to require juveniles adjudicated of certain sex crimes to register as sex offenders. SDCL 22-24B-2 provides in relevant part that:

Any juvenile fifteen years or older shall register as a sex offender if that juvenile has been adjudicated of a sex crime as defined in 22-22-7.2, 22-24B-1(1), or 22-24B-1(9), or of an out-of-state or federal offense that is comparable to the elements of these three sex crimes or any crime committed in another state if the state also requires a juvenile adjudicated of that crime to register as a sex offender in that state.²

The sex offender statutory scheme does not exclude juvenile sex offenders from the notification provisions; juveniles fifteen or older having committed certain sex crimes are subject to the public access and notification provisions. See SDCL 22-24B-15 (making sex offender registration list a public document); SDCL 22-24B-21 (establishing a public internet site containing sex offender registration information); SDCL 22-24B-11 (requiring the participation in the National Sex Offender Public Registry).

[¶ 7.] "The equal protection clauses embodied in the Fourteenth Amendment to the United States Constitution and in Article VI, [section] 18 of the South Dakota Constitution guarantee equal protection of the laws to all persons." State v. Krahwinkel, 2002 SD 160, ¶ 19, 656 N.W.2d 451, 460. To prevail on his equal protection claim, Z.B. must satisfy a two-part test. First, he must show that the statute creates an arbitrary classification. In re Davis, 2004 SD 70, ¶ 5, 681 N.W.2d 452, 454 (additional citation omitted). "Second, if the classification does not involve a fundamental right or suspect [or intermediate] group, we determine whether a rational relationship exists between a legitimate legislative purpose and the classifications created."³ Id.; Krahwinkel, 2002 SD 160, ¶ 19, 656 N.W.2d at 460.

[¶ 8.] Z.B. alleges that SDCL 22-24B-2 violates equal protection because fifteen, sixteen, and seventeen year olds adjudicated delinquent of sex crimes in juvenile court have no right to a jury, nor can they get their names removed from the sex offender registry by receiving a suspended imposition of sentence. See SDCL 22-24B-2; SDCL 23A-27-13; SDCL 23A-27-14. He alleges that this statute creates an arbitrary classification where juveniles are treated differently than adults. When adult defendants receive a suspended imposition of sentence under SDCL 23A-27-13 and 23A-27-14 and comply with certain requirements, they may be removed from the sex offender registry. SDCL 22-24B-2. Z.B. argues that there is no legitimate legislative purpose rationally related to treating the juvenile sex offenders convicted of the same crimes as adult sex offenders differently and more harshly than the adult sex offenders.

[¶ 9.] A state's classification scheme will be upheld under rational basis review with a "plausible" or "conceivable" reason for the distinction. U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 180-81, 101 S.Ct. 453, 462-63, 66 L.Ed.2d 368 (1980) (Stevens, J., concurring in the judgment), reh'g denied, 450 U.S. 960, 101 S.Ct. 1421, 67 L.Ed.2d 385 (1981); see also Donald T. Kramer, Standards of review generally—Rational basis test, 16B AmJur.ConstLaw § 813 (Updated September 2008). The State alleges that the legitimate legislative purpose is the general policy behind the sex offender registry list— public protection from sex offenders. Yet, it does not provide any rational basis why juveniles are treated differently and more harshly under the sex offender registration scheme.⁴ Nonetheless, the United States Supreme Court has declared that

a legislature that creates these categories need not "actually articulate at any time the purpose or rationale supporting its classification." [] Instead, a classification "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification."

Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993) (internal citations omitted).

[¶ 10.] "Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classifications is made." City of Aberdeen v. Meidinger, 89 S.D. 412, 416, 233 N.W.2d 331, 334 (1975) (quoting Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966)). In our examination of the sex offender registry scheme and its disparate treatment of juvenile offenders, we cannot conceive of any state of facts to suggest a rational basis for the harsher treatment of juveniles. Thus, to the extent that SDCL 22-24B-2 requires Z.B. and other juveniles in the same situation to register, it is unconstitutional. The circuit court must rescind its order requiring registration.

[¶ 11.] Reversed.

[¶ 12.] All Justices concur.

KONENKAMP, Justice (writing for the majority on the issue of due process).

[¶ 13.] We address the due process question only to respond to the mistaken position in the dissent. Let it be clear, however, that having decided that SDCL 22-24B-2 creates an equal protection violation, we have no further warrant to also strike the statute on the more expansive view that it violates procedural due process. Nor is it our place, as the dissent would have it, to guide the Legislature in "crafting" new legislation. Prudence and judicial restraint counsel us to examine questions of constitutionality by the narrowest means. We are not legislators. Our duty is to remain within our constitutionally defined roles as judges. Nonetheless, the dissent wishes to go beyond our unanimous holding on equal protection to declare South Dakota's sex offender registry system unconstitutional because it fails to imitate New Jersey law. To understand why the dissent's view would compel South Dakota to enact the dissent's favored legislation, we must first examine the common background for sex offender registration laws in the United States.

[¶ 14.] Like all states, South Dakota is obligated to enact a sex offender registration and notification system, under certain federal guidelines.⁵ States are granted considerable discretion in how they formulate their registry...