458 S.W.3d 838
Mo. Ct. App.2015Background
- In 1988 an undercover St. Louis County detective observed and then sat in appellant Jerome Keeney Jr.’s car at a highway rest stop; Keeney touched the detective’s clothed groin and was arrested.
- In 1989 Keeney pled guilty to attempt sexual misconduct (attempted deviate sexual intercourse with a person of the same sex) under former § 566.090.1(3) (since repealed) and received a suspended sentence and probation.
- Because of that conviction Keeney was required to register on the Missouri Sex Offender Registry under SORNA/SORA and in 2010 was instructed to register.
- In 2013 Keeney filed a petition for declaratory judgment seeking removal from the registry, arguing Lawrence v. Texas rendered the underlying criminal statute unconstitutional and the conduct is no longer a sex offense.
- The trial court granted defendants’ summary judgment; the Court of Appeals reviewed de novo, concluded the historic conviction rests on a statute invalidated by Lawrence and later repealed, and reversed and remanded, ordering removal of Keeney’s registration information.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lawrence v. Texas prevents treating Keeney’s 1989 conviction as a sex offense for registration | Keeney: Lawrence invalidates criminalization of consensual same-sex deviate intercourse, so conviction no longer qualifies as a sex offense | Respondents: conduct was criminal in other respects (e.g., nonconsensual touching or public conduct) so registration remains required | Held: Lawrence applies; the statute under which Keeney pled is no longer a sexual offense and does not justify registration |
| Whether consent/nonconsent now supports registration | Keeney: evidence shows consensual context (car, conversation); Lawrence/privacy protects the conduct | Respondents: Detective’s affidavit claims nonconsensual touching — a separate criminal act justifying registration | Held: Court rejects retroactive recharacterization; prosecution chose the charge then and new allegations decades later cannot sustain registration |
| Whether the conduct was "in public" such that Lawrence’s protection is inapplicable | Keeney: a darkened personal vehicle is private and within Lawrence’s scope | Respondents: actions occurred at a public rest stop and thus are not protected | Held: Court treats the conviction under the now-invalid statute as dispositive; the State cannot expand criminality now to avoid Lawrence’s effect |
| Whether Kauble precedent permits declaratory relief to remove registry entry | Keeney: Kauble indicates a person convicted under an invalid statute may seek removal from the registry by naming registry maintainers | Respondents: procedural hurdles or alternative readings of Kauble | Held: Court follows Kauble — Keeney named proper parties and is entitled to the relief Kauble contemplated; registry removal ordered |
Key Cases Cited
- Lawrence v. Texas, 539 U.S. 558 (U.S. 2003) (struck down criminal prohibitions on consensual same-sex sodomy under Due Process)
- State ex rel. Kauble v. Hartenbach, 216 S.W.3d 158 (Mo. banc 2007) (conviction under later-deemed-unconstitutional statute should not require current registry listing; relief available against registry maintainers)
- Glossip v. Mo. Dep’t of Transp. & Highway Patrol Employees’ Ret. Sys., 411 S.W.3d 796 (Mo. banc 2013) (discussion of equal protection and commentary recognizing Lawrence’s impact on prior precedent)
- Doe v. Toelke, 389 S.W.3d 165 (Mo. banc 2012) (describing SORA and state obligations under SORNA)
- Doe v. Phillips, 194 S.W.3d 833 (Mo. banc 2006) (purpose of SORA to protect children and address recidivism)
- State v. Walsh, 713 S.W.2d 508 (Mo. banc 1986) (upheld earlier constitutionality of same-sex deviate intercourse statute prior to Lawrence)
- Henderson v. Morgan, 426 U.S. 637 (U.S. 1976) (requirements for a voluntary and intelligent guilty plea)
- State v. Hendricks, 944 S.W.2d 208 (Mo. banc 1997) (prosecutor’s discretion in charging decisions)