867 S.E.2d 59
Va. Ct. App.2022Background:
- In 2009 Esposito pled guilty to oral sodomy under Va. Code § 18.2-361 and was required to register on the Sex Offender and Crimes Against Minors Registry.
- In 2014 the General Assembly amended § 18.2-361 to remove consensual oral sodomy as a criminal offense.
- Esposito asked the Virginia State Police to remove her name from the Registry; the State Police refused.
- Esposito appealed the denial to the Rockingham County Circuit Court under the Virginia Administrative Process Act (VAPA); the State Police moved to dismiss, arguing the Registry is a "customary police function" exempt from VAPA.
- The circuit court granted the motion and dismissed the appeal; Esposito appealed to the Court of Appeals of Virginia.
Issues:
| Issue | Plaintiff's Argument (Esposito) | Defendant's Argument (Virginia State Police) | Held |
|---|---|---|---|
| Whether VAPA authorizes judicial review of the State Police's denial to remove Esposito from the Registry | Maintenance of the Registry is an administrative function; denial should be reviewable under VAPA | Registry maintenance is a "customary police function" exempting the State Police action from VAPA (and State Police later argued forms are exempt by statute) | Affirmed dismissal on a different, narrower ground: VAPA review is not the proper route because the Act provides the exclusive statutory removal process |
| Whether the State Police had discretion to remove a registrant absent a court order | State Police could remove Esposito because her conduct is no longer criminal | State Police had no statutory authority to unilaterally remove registrants | Held: The Act (Va. Code § 9.1-910 and § 9.1-915) creates a circuit‑court petition process and requires the State Police to remove a registrant only upon receipt of a court order, so the State Police lacked discretion to grant Esposito’s ex parte request |
Key Cases Cited:
- Bennett v. Commonwealth, 60 Va. App. 656 (2012) (questions of statutory interpretation reviewed de novo)
- Oraee v. Breeding, 270 Va. 488 (2005) (statutes must be read as a consistent, harmonious whole)
- Vandyke v. Commonwealth, 71 Va. App. 723 (2020) (appellate courts may affirm on the right result reached by a different rationale)
- Jones v. Conwell, 227 Va. 176 (1984) (statutory interpretation should not render portions superfluous)