DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES v. John DOE. Gregg Hershberger v. John Roe.
Misc. No. 1 & No. 103 Sept. Term, 2013.
Court of Appeals of Maryland.
June 30, 2014.
94 A.3d 791
Nancy S. Forster (Kadish, Forster and Fastovsky, Baltimore, MD), on brief, for Appellees.
Andrew Jay Graham, Esq., Steven M. Klepper, Esq., Kramon & Graham, P.A., Baltimore, MD, for Amicus Curiae brief of John Doe.
Argued before BARBERA, C.J., HARRELL, GREENE, ADKINS, MCDONALD, WATTS,* ALAN M. WILNER (Retired, Specially Assigned), JJ.
GREENE, J.
In Doe v. Department of Public Safety & Correctional Services, 430 Md. 535, 62 A.3d 123 (2013) (“Doe I“), we addressed the Maryland sex offender registration statute,
In the instant appeal,1 however, the State2 asks us to consider sex offenders’ “federal obligations” and whether a circuit court has the authority to direct the State to remove sex offender registration information in light of the provisions of SORNA specifically directing sex offenders to register in the state in which they reside, work, or attend school. We shall hold that, notwithstanding the registration obligations placed directly on individuals by SORNA, circuit courts have the authority to direct the State to remove sex offender registration information from Maryland‘s sex offender registry when the inclusion of such information is unconstitutional as articulated in Doe I.
I. FACTUAL AND PROCEDURAL HISTORY
The instant cases involve three individuals whose underlying sex crime convictions under state law pre-date the 2010 amendment to Maryland‘s sex offender registration statute. In addition to the two individuals in the consolidated cases, we
A. John Doe (“Doe“)4
In 2006, Doe pled guilty to and was convicted in the Circuit Court for Washington County of a single count of child sexual abuse arising out of an incident involving inappropriate contact with a thirteen-year-old student that occurred during the 1983-84 school year when Doe was a junior high school teacher. Doe was sentenced to ten years incarceration, with all but four and one half years suspended, and three years supervised probation upon his release. Although Doe‘s plea agreement did not address registration as a sex offender as one of the conditions of probation, Doe was ordered at sentencing to “register as a child sex offender.” He was also ordered to pay a $500 fine. Following his sentencing, Doe filed a Motion to Correct an Illegal Sentence challenging both the fine and the requirement that he register as a child sex offender. The Circuit Court agreed with Doe and issued an order striking the fine and the registration requirement. Doe was released from prison in December 2008. On October 1, 2009, Doe‘s probation officer directed him to register as a child sex offender. Doe maintained that he did not agree with the requirement, but, against the advice of counsel, he registered as a child sex offender in early October 2009.
Doe subsequently filed a Complaint for a Declaratory Judgment in the Circuit Court for Anne Arundel County (ultimately transferred to Washington County) seeking a declaration that he not be required to register as a sex offender under the Maryland sex offender registration statute, and that he be removed from the Maryland Sex Offender Registry. In Doe I, we recounted the procedural history leading to our review on appeal as follows:
In October 2009, in a separate civil proceeding, [Doe] filed in the Circuit Court for Anne Arundel County a Complaint for a Declaratory Judgment. [Doe]‘s Complaint advanced three arguments, including that to require him to register, when he was not informed of that requirement when he pled guilty, would improperly render his guilty plea involuntary. None of the arguments advanced in the Complaint, however, explicitly addressed the constitutionality of the registration requirement. After the State‘s successful “Motion for Transfer of Action,” the case was transferred to the Circuit Court for Washington County, the county where [Doe] committed his crime, pled guilty, and was sentenced. During the Circuit Court proceedings, the parties addressed the issues presented in [Doe]‘s Complaint. In addition, counsel for the State argued to the court that requiring [Doe] to register did not violate the prohibition against ex post facto laws. At the end of the hearing, the trial judge denied [Doe]‘s request for declaratory relief and ordered that [Doe] “shall not be removed from the sex offender registry.” [Doe] noted an appeal to the Court of Special Appeals. In [Doe]‘s appeal, he once again contended that requiring him to register as a sex offender violated the terms of the plea agreement. In addition, [Doe] explicitly advanced challenges to the application of the statute on ex post facto, bill of attainder, equal protection, and due process grounds. The State argued that [Doe] failed to raise the four constitutional arguments in his Complaint and, hence, the arguments were not preserved for appeal. The intermediate appellate court determined that the due process and ex post facto arguments were properly raised in the trial court and, therefore, addressed them. The Court of Special Appeals, however, determined that the equal protection and bill of attainder arguments were not properly raised in the trial court and, accordingly, did not consider those issues. In an unreported opinion, the intermediate appellate court rejected all of [Doe]‘s arguments and affirmed the trial court‘s judgment requiring [Doe] to remain on the Maryland Sex Offender Registry. (Footnotes omitted.)
Upon remand from this Court, the Circuit Court for Washington County entered judgment on April 23, 2013, granting Doe‘s Complaint for Declaratory Judgment. In pertinent part, Judge John H. McDowell ordered DPSCS to:
“[R]emove any and all information regarding Doe from the Maryland Sex Offender Registry website;
[R]emove or cause to be removed any and all information regarding Doe‘s sex offender registration from state and local law enforcement databases within the state of Maryland; [and]
[R]emove Doe‘s sex offender registration from all federal databases including the [FBI‘s National Crime Information Center (NCIC) ].” (Emphasis added.)
The State subsequently filed a Motion to Alter or Amend Judgment, arguing that Doe was not entitled to the relief granted due to his registration obligations under SORNA, which this Court did not address in its opinion in Doe I. The Circuit Court denied the motion.
The State noted an appeal to the Court of Special Appeals from both the April 23, 2013 Order and the subsequent order denying the motion to alter or amend. The Court of Special Appeals then presented a certification to this Court, pursuant to
Based upon his conviction of child sexual abuse, under the 2010 amendment to Maryland‘s sex offender registration statute, Doe is classified as a Tier III sex offender. Pursuant to that classification, if lawful, Doe would be required to register with local law enforcement every 3 months for life. See
B. John Roe (“Roe“)6
Roe pled guilty to and was convicted in the Circuit Court for Wicomico County of a third degree sex offense in 1997, arising out of a series of sexual encounters with the victim between December 1994 and January 1996. When this course of conduct began, the victim was 14 years old and Roe was 34 years old. The Circuit Court sentenced Roe to five years incarceration with all but two years suspended, and ordered that he be placed on probation for three years upon his release. Although the State requested the court require Roe to register as a sex offender, the court‘s order contained no registration requirement.
On September 10, 1997, upon orders from the Wicomico County Sheriff‘s Department, Roe registered as a child sex offender under Maryland‘s sex offender registration law in effect at that time and continued to register annually for a
On September 10, 2009, Roe filed a Complaint for Declaratory Relief and Mandamus in the Circuit Court for Wicomico County, requesting a declaration that the sex offender registration statute does not apply to him and an order directing the State to remove his name from the sex offender registry. Roe argued that, based on the age of the victim and the registration law at the time of the conviction, he was not required to register as a sex offender and was improperly placed on the registry. In addition, he raised several constitutional challenges to the application of the registration law as amended in 2009.
On March 1, 2011, the Circuit Court denied Roe‘s request for declaratory and injunctive relief, and rejected Roe‘s constitutional challenges. At the time of Roe‘s offenses and conviction, the Maryland sex offender registration statute in effect was the 1995 version, which provided for a single classification of sex offenders and required that offenders register annually for ten years from the date of their release from prison.7 The 2009 amendment extended the registration requirement from ten years to life, and included a provision applying the law retroactively, which would therefore apply to Roe, if lawful. In addition, while this action was pending, the 2010 amendment further modified the sex offender registration law, to create a three-tiered classification system. Under the 2010 amendment, Roe is classified as a Tier II sex offender, which
Roe filed a timely appeal to the Court of Special Appeals. On appeal, the State conceded that Roe was not required to register at the time of his offenses or subsequent conviction because there was no registration law in effect that applied to him at that time. In an unreported opinion filed on April 2, 2013, the intermediate appellate court vacated the judgment of the Circuit Court, holding that pursuant to this Court‘s decision in Doe I, the 2009 and 2010 amendments to the registration law could not be applied retroactively to Roe, and remanded the case to the Circuit Court for Wicomico County “for further proceedings consistent with [the court‘s] opinion.”
On June 14, 2013, after issuance of the Court of Special Appeals‘s opinion but before the entry of any further judgment in the Circuit Court for Wicomico County, the State filed a “Motion for Appropriate Relief,” requesting that the Circuit Court declare that Roe is required to register as a Tier II sex offender pursuant to federal law, notwithstanding the decision of the Court of Special Appeals. Without addressing the State‘s motion, and pursuant to the intermediate appellate court‘s mandate, the Circuit Court entered an order on August 6, 2013, virtually identical to the order at issue in Doe, directing the State to, in pertinent part:
“[R]emove any and all information regarding Roe from the Maryland Sex Offender Registry website;
[R]emove or cause to be removed any and all information regarding Roe‘s sex offender registration from state and local law enforcement databases within the state of Maryland; [and]
[R]emove Roe‘s sex offender registration from all federal databases including the NCIC[.]”
The State filed a timely notice of appeal. Shortly thereafter, while the case was pending in the Court of Special Appeals
In light of the requirement imposed by federal law that each state maintain an online registry of sex offenders residing in the state and the obligation imposed on convicted sex offenders by federal law to register in the state where they reside, did the circuit court lack authority to direct the State to remove Mr. Roe from databases maintained in compliance with federal law, irrespective of his challenge to registration requirements imposed by Maryland law?
C. Amicus John Doe (“Amicus“)9
Pursuant to a plea agreement, Amicus was convicted of misdemeanor fifth degree criminal sexual conduct in Minnesota state court in July 2010, arising out of an incident with a schoolmate that occurred in February 2009 while Amicus was enrolled in college in Minnesota. Pursuant to his sentence, Amicus served forty days of incarceration, paid a $1,000 fine, and was placed on two years probation. He completed his probation on July 21, 2012. At the time of his conviction, Minnesota law required Amicus to register as a sex offender in Minnesota, but his registry information could only be used “for law enforcement and corrections purposes” in Minnesota. See
Amicus, who had left college and resumed his residency in Maryland after the February 2009 incident, inquired with the Maryland Department of Public Safety and Correctional Services in September 2010 as to whether he must register as a sex offender in Maryland. Amicus was told that he did not need to register at that time, but that pursuant to the 2010 amendment, effective October 1, 2010, he would be classified as a Tier I sex offender and required to register in Maryland every six months for fifteen years. On September 29, 2010, Amicus filed a Complaint for Declaratory and Injunctive Relief in the Circuit Court for Baltimore City, seeking to be excluded from the registration requirements that went into effect October 1, 2010. The Circuit Court granted the State‘s Motion to Dismiss and/or for Summary Judgment, but then stayed its order pending the completion of Amicus‘s appeals. Amicus filed a timely appeal to the Court of Special Appeals on January 9, 2012, which was stayed pending this Court‘s resolution of Doe I, and remains unresolved. To date, Amicus has never appeared on the Maryland sex offender registry.
II. PRELIMINARY MATTERS
A. Roe‘s Motion to Dismiss
Before reaching the merits of the instant cases, we shall address Roe‘s contention that we should not consider certain arguments. Roe includes in his brief a motion to dismiss the appeal, arguing that the State‘s appeal is improper for two reasons. First, Roe asserts that the State has not appealed from a final appealable order because there is no written order denying the State‘s “Motion for Appropriate Relief,” and, moreover, the August 6, 2013 Order was entered pursuant to an appellate mandate. Therefore, Roe argues, the August 6, 2013 Order becomes part of the judgment and there is no authority for the State to appeal it. Additionally, Roe contends, the appeal is improper because the issue raised by
The State responds that the August 6, 2013 Order was indeed a final judgment from which this appeal was timely filed. In the proceedings below, after the Court of Special Appeals had issued its mandate directing the trial court to enter an order consistent with this Court‘s opinion in Doe I, the State filed a “Motion for Appropriate Relief” specifically requesting the trial court to direct Roe to register as a sex offender based on the separate registration obligation imposed on him by SORNA, notwithstanding the intermediate appellate court‘s decision. Although from the record there appears to be no written order denying the State‘s motion, the docket entries in this case show the disposition of the motion as denied on August 6, 2013, the same day the trial court entered an order granting the relief requested by Roe. Moreover, the Circuit Court‘s August 6, 2013 Order, granting the relief requested by Roe, operates as an effective denial of the State‘s “Motion for Appropriate Relief.” Therefore, we treat the State‘s motion as having been denied. The State noted an appeal to the intermediate appellate court on September 3, 2013, and then, on September 18, 2013, petitioned this Court for certiorari, which we granted prior to any arguments in or decision by the Court of Special Appeals.
Roe relies on the “law of the case” doctrine to claim that the State cannot challenge an order entered pursuant to an appellate mandate. “The law of the case doctrine is one of appellate procedure. Once an appellate court rules upon a question presented on appeal, litigants and lower courts become bound by the ruling, which is considered to be the law of the case.” Garner v. Archers Glen Partners, Inc., 405 Md. 43, 55, 949 A.2d 639, 646 (2008) (citations and quotations omitted). In other words:
Once this Court has ruled upon a question properly presented on an appeal, or, if the ruling be contrary to a question that could have been raised and argued in that appeal on the then state of the record, as aforesaid, such a ruling
becomes the ‘law of the case’ and is binding on the litigants and courts alike, unless changed or modified after reargument, and neither the questions decided nor the ones that could have been raised and decided are available to be raised in a subsequent appeal.
Id. (quoting Loveday v. State, 296 Md. 226, 230, 462 A.2d 58, 59 (1983)). We agree with the State that Roe‘s use of the doctrine is misplaced. This Court, in Doe I, upon which the Court of Special Appeals in Roe based its decision, expressly declined to consider the issue presented in the instant appeal. See Doe I, 430 Md. at 544, 62 A.3d at 128. Nor was our holding in Doe I, or, by extension, the Court of Special Appeals‘s decision in Roe, “contrary to” the question now before us. Thus, there has been no “ruling” on this issue, either directly or indirectly, which would make the “law of the case” doctrine applicable here. Moreover, we held in Loveday, 296 Md. at 234, 462 A.2d at 61, that “the law of the case doctrine does not apply to this [C]ourt which is required to review judgments of subordinate courts.”
In addition,
B. Roe‘s Motion to Strike
Roe also includes in his Brief to this Court a motion to strike the State‘s argument regarding the constitutionality of Maryland‘s sex offender registration statute, effectively requesting this Court to reconsider our decision in Doe I. Roe insists that we should decline to address this argument because we specifically did not grant certiorari on this issue, despite the State‘s submission of that question in its Petition for Certiorari and its arguments on that point in its Brief to
It is well established that this Court has discretion to limit certiorari review. See
C. Standard of Review
The parties dispute the appropriate standard to guide our review of this case. The State asserts that we should apply a de novo standard of review to these declaratory judgment actions involving the interpretation and application of statutes. On the other hand, Doe and Roe (collectively “Appellees“) contend that, because this case concerns a trial court order, the correct standard of review is abuse of discretion. Appellees’ argument misses the point. Although in many instances we review a trial court order for abuse of discretion, or apply “interrelated standards” of review, see Kusi v. State, 438 Md. 362, 91 A.3d 1192 (2014) (discussing the application of multiple “tiers of review“), the issue surrounding the order in this case involves an interpretation and application of Maryland as well as federal statutory and case law. Therefore, we “must determine whether the lower court‘s conclusions are legally correct under a de novo standard of review.” Nesbit v. Gov‘t Emps. Ins. Co., 382 Md. 65, 72, 854 A.2d 879, 883 (2004) (quoting Walter v. Gunter, 367 Md. 386, 392, 788 A.2d 609, 612 (2002)).
III. DISCUSSION
In these consolidated cases, the State argues that the Circuit Court cannot order the removal of Appellees from Maryland‘s registry because each individual sex offender has a federal obligation to register in his home state, independent of state law to the contrary. Further, the State contends that it
First, Appellees argue that the State has no standing to claim on behalf of the federal government that they must register pursuant to SORNA, and point out that the State has not actually lost any federal funding as a result of this Court‘s decision in Doe I. The State responds that it has standing because this appeal challenges a trial court order that included declaratory and injunctive relief against it. We agree with the State that Appellees’ standing argument is without merit. In our view, Appellees’ argument mischaracterizes the nature of the appeal. The orders at issue in both cases under review were entered as the result of declaratory judgment actions. As the State correctly notes, the trial court‘s orders directed the State to take certain actions, namely, to remove Appellees from Maryland‘s sex offender registry and “from all federal databases including the NCIC.” Ultimately, the State‘s challenge on appeal asks us to review the propriety of this order; that is, whether the courts can require the State to remove registration information. As we will discuss, the answer to this question requires us to consider and interpret federal statutes as well as Maryland statutes. Although there is no indication in the record that the State has lost any federal funding as a result of Doe I, or that any of the Appellees have been charged in federal court with failure to register under
As to the merits of the appeal, Appellees argue that the circuit courts have the authority to order the State to remove sex offender registration information from Maryland‘s registry pursuant to this Court‘s decision in Doe I. Appellees assert that federal law cannot require them to register in
Maryland when to do so would violate their rights under the Maryland constitution.11 Moreover, Appellees contend that the State‘s interpretation of SORNA, namely, that there exists an “independent registration requirement” obligating them to register in Maryland despite this Court‘s holding that such registration violates the Maryland Declaration of Rights, would yield an unconstitutional result. An interpretation of SORNA to that effect, they argue, would violate the 10th Amendment, the Commerce Clause, and the Spending Clause of the United States Constitution. We shall decline to address Appellees’ constitutional arguments, as they are unnecessary for our holding in this case. See VNA Hospice of Md. v. Dep‘t of Health & Mental Hygiene, 406 Md. 584, 604, 961 A.2d 557, 569 (2008) (“This Court has emphasized, time after time, that the Court‘s strong and established policy is to decide constitutional issues only when necessary.“) (citations and quotations omitted); Christopher v. Montgomery Cnty. Dep‘t of Health & Human Servs., 381 Md. 188, 217, 849 A.2d 46, 63 (2004) (“[W]e adhere to the established principle that a court will not decide a constitutional issue when a case can properly be disposed of on a nonconstitutional ground.“) (citations and quotationsWe will discuss first whether an “independent federal registration requirement” imposed directly on sex offenders by SORNA operates to prevent the State from removing registration information. Because we answer that question in the negative, we will then address the certified question presented by the Court of Special Appeals regarding the language and scope of the Circuit Court‘s order directing removal of Doe‘s registration information.
A. Sex Offenders’ Obligations under SORNA
Congress enacted SORNA, Title I of the Adam Walsh Child Protection and Safety Act of 2006, “to protect the public from sex offenders and offenders against children” by “estab-lish[ing] a comprehensive national system for the registration of those offenders[.]”
The Act sets forth “minimum national standards” for jurisdictions’ sex offender registration and notification programs.
Maryland implemented SORNA through amendments in 2009 and 2010 to its preexisting registration statute. See Doe I, 430 Md. at 545-46, 62 A.3d at 129 (providing background on the evolution of Maryland‘s sex offender registration laws). It is the retroactive provisions of the 2009 and 2010 amendments with which we were concerned in Doe I, and which we held to be unconstitutional. 430 Md. at 568, 62 A.3d at 143. In particular, the 2009 amendments specifically addressed the retroactive application of the registration statute. See
On July 19, 2011, the United States Department of Justice‘s SMART Office14 published a revised “SORNA Substantial Implementation Review” for the State of Maryland, concluding that Maryland‘s registration program substantially complies with SORNA‘s requirements. See U.S. Dep‘t of Justice, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART Office“), SORNA Substantial Implementation Review State of Maryland—Revised (July 19, 2011), http://ojp.gov/smart/pdfs/sorna/Maryland.pdf. As of the date of this opinion, the SMART Office website identifies only 17 states, including Maryland, as having successfully substantially implemented SORNA. See U.S. Dep‘t of Justice, SMART Office, http://ojp.gov/smart/sorna.htm (last visited June 20, 2014) (identifying 17 states and 3 territories as having “substantially implemented” SORNA). See also U.S. Gov‘t Accountability Office, GAO-13-211, Sex Offender Registration and Notification Act: Jurisdictions Face Challenges to Implementing the Act, and Stakeholders Report Positive and Negative Effects (2013) (discussing the SMART Office and its determinations regarding substantial implementation of SORNA by individual jurisdictions, noting that one of the challenges presented by states in implementing SORNA concerns retroactive application).
In addition to the provisions directed at jurisdictions, SORNA includes an express provision regarding “[r]egistry requirements for sex offenders.”
[W]hoever (1) is required to register under [SORNA]; (2)(A) is a sex offender as defined for the purposes of [SORNA] by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or (B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and (3) knowingly fails to register or update a registration as required by [SORNA].
The State refers to
The State relies on United States v. Gould, 568 F.3d 459 (4th Cir. 2009), for its contention that, irrespective of Maryland law, Appellees must register as sex offenders in Maryland because SORNA imposes a registration requirement on individuals that is “independent of the requirement imposed on the States to implement the enhanced registration and notification standards of SORNA.” Gould, 568 F.3d at 465. In Gould, the defendant was convicted of a sex offense in 1985 in the District of Columbia, where he was originally required to register as a sex offender pursuant to pre-SORNA federal and D.C. law. Gould, 568 F.3d at 461. He moved to Maryland in
The Fourth Circuit rejected Gould‘s arguments, holding that Gould was required to register in Maryland because his registration obligations under SORNA were not contingent on Maryland‘s implementation of SORNA. Despite the fact that Maryland had not yet implemented SORNA, the Fourth Circuit noted that Maryland did have a pre-SORNA program through which Gould “could register and indeed was required to register.” 568 F.3d at 464. More importantly, the Fourth Circuit pointed out that “the structure of SORNA‘s requirements indicates a separateness of the sex offenders’ individual duty to register and the State‘s duty to enhance its registries and standards as mandated by the Act.” Id. Thus, the Fourth Circuit “conclude[d] that the requirement imposed on individuals to register is independent of the requirement imposed on the States to implement the enhanced registration and notification standards of SORNA.” Gould, 568 F.3d at 465.
One year later, in Kennedy v. Allera, 612 F.3d 261 (4th Cir. 2010), the Fourth Circuit again discussed the separateness of SORNA‘s registration requirements. In 1980, Kennedy had been convicted in California federal court of rape and murder. In 2000, he was released from federal prison to the supervision of the U.S. Parole Commission in the District of Maryland. At that time, one of Kennedy‘s conditions of probation specified that he must “report for registration with [his] state sex offender registration agency.” Kennedy, 612 F.3d at 263. Although he initially objected to the registration
On appeal, the Fourth Circuit noted Kennedy‘s “independent duty as a sex offender to register under SORNA” in rejecting Kennedy‘s argument that he was not required to register by Maryland law and was therefore prohibited from registering in Maryland. Kennedy, 612 F.3d at 267-68. Like in Gould, the Fourth Circuit stated that “Maryland law creates a sex offender registry in which Kennedy can register even if we were to assume, for purposes of argument, that Maryland law does not of its own force require him to register.” Kennedy, 612 F.3d at 268. Thus, the Fourth Circuit concluded that “because SORNA lawfully imposes, as a matter of federal law, registration obligations directly on sex offenders, such as Kennedy, Kennedy is not relieved of that duty by any restriction in Maryland law or by Maryland‘s failure to implement SORNA.” Kennedy, 612 F.3d at 263.
What the State fails to recognize in its reliance on Gould, Kennedy, and additional federal circuit courts of appeals deci-
We do not dispute that by its plain meaning,
do not read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute‘s plain language to the isolated section alone. Rather, the plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute. We presume that the Legislature intends its enactments to operate together as a consistent and harmonious body of law, and, thus, we seek to reconcile and harmonize the parts of a statute, to the extent possible consistent with the statute‘s object and scope.
Gardner v. State, 420 Md. 1, 9, 20 A.3d 801, 806 (2011) (quoting State v. Johnson, 415 Md. 413, 421-22, 2 A.3d 368, 373 (2010)).
SORNA § 125(b),
(b) State Constitutionality.
(1) In general. When evaluating whether a jurisdiction has substantially implemented this subchapter, the Attorney General shall consider whether the jurisdiction is unable to substantially implement this subchapter because of a demonstrated inability to implement certain provisions that would place the jurisdiction in violation of its constitution, as determined by a ruling of the jurisdiction‘s highest court.
(2) Efforts. If the circumstances arise under paragraph (1), then the Attorney General and the jurisdiction shall make good faith efforts to accomplish substantial implementation
of this subchapter and to reconcile any conflicts between this subchapter and the jurisdiction‘s constitution. In considering whether compliance with the requirements of this subchapter would likely violate the jurisdiction‘s constitution or an interpretation thereof by the jurisdiction‘s highest court, the Attorney General shall consult with the chief executive and chief legal officer of the jurisdiction concerning the jurisdiction‘s interpretation of the jurisdiction‘s constitution and rulings thereon by the jurisdiction‘s highest court.
(3) Alternative procedures. If the jurisdiction is unable to substantially implement this subchapter because of a limitation imposed by the jurisdiction‘s constitution, the Attorney General may determine that the jurisdiction is in compliance with this chapter if the jurisdiction has made, or is in the process of implementing reasonable alternative procedures or accommodations, which are consistent with the purposes of this chapter.
SORNA § 125(b)[,
42 U.S.C. § 16925(b) ,] includes special provisions for cases in which the highest court of a jurisdiction has held that the jurisdiction‘s constitution is in some respect in conflict with the SORNA requirements. If a jurisdiction believes that it faces such a situation, it should inform the SMART Office. The SMART Office will then work with the jurisdiction to see whether the problem can be overcome, as the statute provides. If it is not possible to overcome the problem, then the SMART Office may approve the jurisdiction‘s adoption of reasonable alternative measures that are consistent with the purposes of SORNA.
National Guidelines, 73 Fed.Reg. at 38,048.
In our view, the addition of SORNA § 125(b),
This conclusion is not inconsistent with federal guidance regarding sex offender registration. For example, the United States Department of Justice SMART Office has stated that “[f]ederal courts have interpreted SORNA as directly imposing a duty on a person to attempt to register if they meet the federal definition of ‘sex offender‘[,]” but “a jurisdiction will not register an offender unless that jurisdiction‘s laws require that the offender be registered.” U.S. Dep‘t of Justice, SMART Office, Sex Offender Registration and Notification in the United States: Current Case Law and Issues 5-6 (August 2013), http://www.smart.gov/caselaw/handbook_august2013.pdf (emphasis in original). In other words, there will be “situations where SORNA imposes a registration requirement directly on an offender, but the jurisdiction where that offender
Accordingly, although Gould and Kennedy clarify that SORNA creates a direct obligation on sex offenders to register in their home state, independent of that state‘s implementation of SORNA, the state need not accept the registration if doing so would be contrary to state law. This is precisely the case here. The State cannot legally accept a sex offender‘s involuntary registration when that individual‘s registration is unconstitutional under Maryland law. This conclusion is also consistent with the Circuit Court‘s order directing the State to remove information from the registry. In other words, the Circuit Court has ordered the State to refuse to accept Appellees’ registration information.17
We are not the only state appellate court to have declared the retroactive or retrospective application of sex offender registration laws to be in violation of the state‘s constitution. See Starkey v. Oklahoma Dep‘t of Corr., 305 P.3d 1004 (Okla. 2013) (holding that the retroactive application of state‘s sex
On the one hand, the Supreme Court of Missouri has concluded that there is an “independent registration requirement under SORNA [that] operates irrespective of any allegedly retrospective state law that has been enacted and may be subject to the [state constitutional] ban on the enactment of retrospective state laws.” Doe I v. Keathley, 290 S.W.3d 719, 720 (Mo. 2009). The Missouri Supreme Court subsequently qualified its holding, noting that Missouri‘s registration statute specifically includes and “appl[ies] to any person who ‘has been’ required to register as a sex offender pursuant to federal law.” Doe v. Toelke, 389 S.W.3d 165, 167 (Mo. 2012) (emphasis added). Thus, Missouri courts have concluded that “SORNA imposes an independent, federally mandated registration requirement ... which triggers [the] duty to register in Missouri pursuant to [Missouri‘s registration statute].” Grieshaber v. Fitch, 409 S.W.3d 435, 439 (Mo. App. E.D. 2013) (citing Keathley and Toelke). In other words, in Missouri, the state registration requirement is based on an independent federal registration requirement. See Roe v. Replogle, 408 S.W.3d 759, 769 (Mo. 2013) (addressing
Indiana appellate courts have decided differently. In 2009, the Supreme Court of Indiana in Wallace v. State, 905 N.E.2d 371 (Ind. 2009), held that the Indiana sex offender registration
C. Certified Question
As modified by this Court, the certified question from the Court of Special Appeals in Department of Public Safety & Correctional Services v. Doe asks whether circuit courts have the authority to order the State to remove sex offender information from “federal databases.” We conclude that the language in the order that purports to direct the State to remove information from “federal databases” is incorrect. Consequently, the Circuit Court‘s order must be revised.
The “federal databases” at issue include: the National Sex Offender Registry (“NSOR“), the National Crime Information Center (“NCIC“), and the National Sex Offender Public Website (“NSOPW“). The NSOR was authorized and created by the Pam Lychner Sexual Offender Tracking and Identification Act of 1996, Pub.L. No. 104-236, 110 Stat. 3093, 3096-98, to allow the FBI to monitor and track offenders. The NSOR has since been incorporated into the FBI‘s NCIC, which is a law
tion requirements.” United States v. Kebodeaux, — U.S. —, 133 S.Ct. 2496, 2505, 186 L.Ed.2d 540 (2013). Our conclusion in this case is limited to the registration obligations of individuals residing, working, or attending school in Maryland.
Criminal justice agencies enter records into NCIC that are accessible to law enforcement agencies nationwide. For example, a law enforcement officer can search NCIC during a traffic stop to determine if the vehicle in question is stolen or if the driver is wanted by law enforcement. The system responds instantly. However, a positive response from NCIC is not probable cause for an officer to take action. NCIC policy requires the inquiring agency to make contact with the entering agency to verify the information is accurate and up-to-date.
Id. Accordingly, the agency where sex offender registration was initiated would be responsible for the updating and removal of that information from the NCIC.
Similarly, the NSOPW, maintained now by the U.S. Department of Justice, is not in fact a separate registration system, but rather is a compilation of all state registries, allowing a member of the public to search all state records in one place. See U.S. Dep‘t of Justice, Dru Sjodin National Sex Offender Public Website, http://www.nsopw.gov/en/Home/About (last visited June 20, 2014); U.S. Dep‘t of Justice, SMART Office, Sex Offender Registration and Notification in the United States: Current Case Law and Issues 2 (August 2013), http://www.smart.gov/caselaw/handbook_august2013.pdf. In other words, the NSOPW functions as a search engine. As a practical matter, then, by ordering the State of Maryland to remove records from the Maryland state registry, those records will also no longer appear in the NSOPW.
We conclude that the Circuit Court‘s use of the phrase “federal databases” is misleading. It is true that the above
The Sex Offender Registry Unit, within the Department of Public Safety and Correctional Services, is in charge of the maintenance of all sex offender registration information for the State. Pursuant to Maryland regulations, the Sex Offender Registry Unit has the authority to maintain Maryland‘s central registry, as well as to manage and authorize termination of registration. See
Accordingly, in response to the certified question from the Court of Special Appeals, we conclude that the Circuit Court incorrectly ordered the State to remove Doe‘s information from “federal databases,” however, the court does have the authority to compel the State to remove all of its records relating to Doe‘s registration as a sex offender, and to notify federal agencies of his removal from the Maryland
CERTIFIED QUESTION ANSWERED AS SET FORTH HEREIN. IN CASE #103, JUDGMENT OF THE CIRCUIT COURT AFFIRMED AS MODIFIED CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLANT.
HARRELL, J., concurs.
HARRELL, J., concurring.
I did not join the reasoning (the unconstitutionality of the Maryland statute) of the plurality of the judges in Doe v. Department of Public Safety & Correctional Services, 430 Md. 535, 62 A.3d 123 (2013) (”Doe I“). Rather, I concurred based on a view that Doe was entitled to specific performance of the terms of his guilty plea. Doe, 430 Md. at 569, 62 A.3d at 143. I rejected the plurality‘s constitutionality analysis. Id.
That having been noted, I concur in the judgment of the Court‘s opinion in the present case, assuming that Doe I was decided correctly. It is, after all, the law of Maryland.
Notes
Where federal law requires the State of Maryland to create a system for sex offender registration including a requirement that it be applied retroactively, and where the retroactive requirement is determined to violate the Maryland Declaration of Rights, can the circuit court require the State of Maryland to remove sex offender registration information from all federal databases?We subsequently modified this question, pursuant to our authority under