Meinders v. Weber

all of the Reviewing above fac- tors, showing is no that the punitive there $10,000

damage award of was excessive.

Therefore, affirm we Issue 3.

[¶ 37.] Affirmed. Justice, MILLER, Chief

AMUNDSON, KONENKAMP and

GILBERTSON, Justices, concur.

2000 SD 2 MEINDERS, H.

James Petitioner Appellant,

Douglas WEBER, Warden of the South Penitentiary, Appellee.

Dakota

No. 20689.

Supreme Court of South Dakota.

Argued June 1999.

Reassigned Aug. 1999.

Decided Jan. Boyce, Murphy,

Lisa Hansen Marso L.L.P., Greenfield, McDowell Sioux & Falls, Dakota, peti- Attorneys South tioner and appellant. General, Barnett, Attorney

Mark Frank General, Geaghan, Attorney Assistant Pierre, Dakota, Attorneys appel- South lee. (on

KONENKAMP, reassign- Justice ment). appeals the denial

[¶ 1.] James Meinders (1) relief, asserting that corpus of habeas offender South Dakota’s sex post violate the facto clauses of statutes ex both our state and federal constitutions punish- and unusual and constitute cruel him; retroactively applied to ment when (SDCL (2) good time statutes amended 24-2-18) the ex violate the state federal facto clauses of both (3) constitutions; his fifth amendment was against violat- right self-incrimination penitentiary’s ed the state requirement that he treatment program offense; his his trial admit We affirm on all attorney was ineffective. issues.

Facts early A.G. they met [¶ 2.] When old, years and Meinders was was fourteen age, told him her explaining She released. Approximately twenty nineteen. months attending junior later, high she had been he was returned to the penitentiary school, “just quit.” but A.G. a trou- was being after grand convicted of theft. The bled getting adolescent. She suspended portion fifteen-year his sen- along parents. with her She later said she tence was petitioned revoked. Meinders nineteen, knew Meinders was but misled for a writ of corpus habeas relief. The parents age. parents her about his Her habeas court denied his petition and he already had expressed concern about her appeals. with relationship they him. She knew 5.] corpus applicants [¶ Habeas they disapprove age.

would knew his real proof bear the initial burden of to establish In began March Meinders and A.G. a colorable claim for relief. Jenner v. having sexual intercourse. A.G. fif- turned ¶ Dooley, 1999 SD 20,1989. teen March 468. These proceedings are no substitute April ran away. A.G. Po- appeal: direct as a collateral attack on Watertown, lice found her and Meinders judgment, final the remedy is limited. home, South Dakota. She returned prom- Id. We review habeas factual un findings ising her parents she would have no con- clearly der the erroneous standard and tact with Meinders. But she continued to legal conclusions under the de novo stan see him parents nonetheless when her Class, 134, dard. Lodermeier 1996 SD were not home. ran away again A.G. in ¶ 3, 618, 555 N.W.2d 621-22 (citing Loop June to live with par- Meinders and his ¶ Class, 107, 11, 189, 1996 SD ents. She and Meinders had separate (citations omitted)). bedrooms, they but continued their sexual parents activities while his were at work or Registration for Convicted sleeping. A.G. parents did not contact her Sex Offenders mid-August. until Finally, she called her say mother to that Meinders had hit her. 1994, In Legislature [¶ 6.] our enacted She wanted to come home. Her mother requiring laws registration for convicted arrived at Meinders’ home accompanied by 22-22-30, sex offenders. SDCL seq. et police. then A.G. told the authorities Registration applied initially to those con- about her sex with acts Meinders. specified victed of sex offenses on or after 1, 4.] Meinders was indicted for statuto- July Laws, 1994. 1994 S.D. Session ch. (SDCL 22-22-1(5)) ry rape con- § sexual 2. No access was permitted (SDCL 22-22-7).1 tact July Furthermore, information. jury convicted him of statutory rape. He required was not for all sex was years sentenced fifteen in the peni- It offenses. did not apply to the of offense tentiary years with twelve suspended. Af- statutory rape. See S.D. Session ter serving two years, Laws, and a half 174, § he was ch. l.2 22-22-1(5) 1. provides: SDCL 2. Under the law as enacted in the defi- Rape penetration is an act nition of "sex of sexual crime” included accom- first sec- plished person any any 22-22-1, with under degree rape of the ond as defined in SDCL following circumstances: degree. but not Although third Meinders was years age, If the victim is ten of but degree rape indicted for January second years age, less than sixteen of and the amended SDCL 22-22- perpetrator years least three older 1, 1990, July 1 effective and reclassified statu- than victim!.] Therefore, tory rape degree rape. as third provides SDCL part: in Legislature passed when the Any older, person, years age sixteen of or in statutes of crime knowingly who engages in sexual contact statutory rape degree was classified as third person, with another other per- than that rape registra- and was not a crime for which spouse person son’s age if the other is under the required. tion was years guilty of sixteen of a Class 3 felony. trage- application. have retroactive 1995 S.D. well-publicized A of series futility Laws, 123, § of sex offender ch. 22-22- illustrated Session SDCL dies noti- registration without attendant provides: 31 now inci- of the most notorious fication. One Any in person residing this state who There, Jersey. in New dents occurred upon has been convicted whether a ver- year Megan old Kanka July seven plea guilty plea dict or or of nolo man who strangled. The raped contendere, or who has received a sus- murdering her lived across confessed to which pended imposition sentence family. her He had two the street from §to discharged pursuant not been 23A- convictions offenses previous July prior commis- girls. Megan’s par- Neither against little crime, § sion of a sex as defined in 22- anyone neighborhood in the ents nor else 22-30,3 any person juvenile or who is a history. criminal Public was aware his adjudicated fifteen years age or older “Megan’s outrage passage led crime, of a sex as defined in subdivisions called, only Law,” that not as it came 22-22-30(Z) (9), felony or of sexual with required sex offenders to contact, 22-22-7.2, shall, § defined enforcement, provided local law but also days coming within ten into coun- varying degrees dissemination ty temporarily reside or domicile for In the information. same registrant thirty days, register more than with the Congress passed the Jacob Wetter- year, police municipality chief of Sexually ling Against Crimes Children resides, or, if person which the no chief Act of 1994. Registration Offender Violent exists, (1994). police with the sheriff of Act then condi- U.S.C. person pre- county of crime in which the resides. availability tioned the federal of a sex vention funds on a state’s creation A of this is a violation section Class However, a registration system offender and commu- any misdemeanor. subse- Today fifty all nity program. notification Any a Class 6 quent felony. violation is mandatory of sex require states some form is person discharged whose sentence un- registration. 1,1995, § July 23A-27-14 after shall der a formal copy forward certified of such 1995, enacted South Dakota its discharge mail to the Divi- by certified by Law” amend- “Megan’s own version Investigation and to sion of Criminal ing the sex offender statutes person where the local law enforcement provision. to include access under this section. registered the statutes to is then also amended (7) pictures as provides: Sale of obscene of child set 3. SDCL 22-22-30 22-22-24; §in forth (8) purposes §§ to 22-22- For the 39, 22-22-31 22-19-1, inclusive, § Kidnapping, as set forth in crime is minor; following regardless the date crimes act is a the victim of the criminal the offense or date of (9) the commission prostitution as of minor Promotion of conviction: 22-23-2(2); set forth in subdivision 22-22-1; (1) Rape §in as set forth (10) pedophilia set Criminal forth (2) with a minor under six- Sexual contact 22-22-30.1; § § 22-22-7 as set forth in if committed teen (11) exposure as Felony set forth indecent by of a an adult and the adult convicted exposure § 22-24-1 or indecent in former felony; 22-24-1.2; § as set forth in (3) person incapable with a Sexual contact (12) attempt any of An to commit § consenting as set forth in 22-22-7.2 if section; crimes listed this adult; by an committed (13) place Any committed in a other crime (4) § as set forth in 22-22-19.1 if Incest would constitute than this state which adult; by committed an under this section if committed crime (5) Photographing a child in an obscene act this state. 22-22-23; § as set forth in (6) pornography of child as set Possession 22-22-23.1; § forth in notice, receipt person of such Upon (explaining the ex facto post prohibition). shall be removed from the sex offender registry open public inspection prohibition against [¶ 10.] The ex shall relieved further post facto applies penal laws statutes under this requirements section. imposing criminal sanctions. Collins provides, in part: 22-22-40 SDCL 37, 41, Youngblood, 497 U.S. 110 S.Ct. by records

Registration (1990) (cita collected local 30, 111 L.Ed.2d agencies pursuant omitted); Class, law enforcement tions Lewis 1997 SD ¶ (citations provid- omitted) chapter, this lists by (prohibition ed to local law enforcement applies to statutes that exact Investigation, Division of Criminal Ex penalties). post facto ques claims are ¶ collected by pur- records institutions tions law reviewable de novo. Id. § (citing suant to for those 565 N.W.2d at persons Karp, 22-22-38 State v. (S.D.1995)). required Challenges N.W.2d provi- under the to the constitutionality § sions of to 22-22-39 a statute are not lightly are met: provided records as in chapter 1-27. “There strong is á presumption that the [Legislature laws enacted are The question before us today whether constitutional presumption and that post these statutes violate the ex facto only clearly, rebutted when it palpably prohibitions in our state and federal consti- plainly appears that the statute vio- tutions. a provision lates of the constitution.” Application 1. Retroactive of Sex Of- Further, party challenging the con- Registration fender Laws stitutionality aof statute bears the bur- beyond den of proving a reasonable The United States Consti doubt that the statute violates a state or tution declares that shall ... “[n]o State provision. federal constitutional pass any ... ex facto [l]aw.” I, 1; I, § Sedlacek v. South Dakota art. cl. Teener Baseball U.S.Const. see art. (S.D.1989) Program, 437 cl. 3. The South Dakota Constitution (quoting Falls, City Oien v. Sioux equivalent provision. has an S.D.Const. (other 286, (S.D.1986) VI, citations art. prohi These constitutional omitted)). application any bitions bar retroactive inflicting greater law punishment [¶ 11.] Meinders asserts that crime than originally the law rendered at South Dakota’s sex offender the time the crime was committed. Calder (SDCL laws through 22-22-30 (3 Bull, Dall.) 390, 386, v. 3 U.S. 1 L.Ed. 23-5-14) and to him violate the (1798). The prohibition fulfils two post ex facto clauses our state and (1) principles: legislative enactments must federal constitutions. He contends that give effect, fair warning of their thus al registrant dissemination of may data result lowing reliance on the current law until it in of employment, loss privacy, invasion of (2) legislatively changed; laws can scrutiny, media and physical by attacks arbitrarily punish or vindictively per vigilantes once he is prison. released from past sons for acts that were not criminal or argues He that dissemination of were less criminal they when were com information is excessive Florida, mitted. See v. Miller 482 U.S. because there are no on restrictions who 423, 429-30, 2446, 2451, 107 S.Ct. information, can access the no limit on the (1987) L.Ed.2d (discussing 359-60 length of time an offender register, must two traditional purposes Ex Post procedure Facto and no which an offender can Clause); Graham, Weaver v. 450 U.S. be relieved of the obligation to report. 28-29, 960, 964, 101 S.Ct. 67 L.Ed.2d The trial court found that the statutes and, therefore, residing tain in South Dako- they did sex offenders punitive were not ta.” Legislature’s We conclude prohibitions. ex facto post violate the in requiring registration intention impression This an of first issue [¶ 12.] as- accomplish regulatory purpose was convicted in South Dakota. in sisting identifying law enforcement 20, 1990, the enactment July before tracking prevent sex offenders to future thus registration. These laws offender offenses, especially against those chil- and, therefore, retroactively himto apply Furthermore, the' of the purpose dren. remedial, they vio- than punitive, if rather information as registrant access clauses of our state the ex facto late to alert provided SDCL 22-22-40 was Accordingly, we and federal constitutions. community the interest whether our sex must examine re- safety, prevent promptly and to punitive or remedial laws are involving incidents sexual offenses. solve in nature. akin to These are remedial measures a law is whether or not deciding warning potential communities of health has based its generally this Court penal, A intent to be remedi- legislative hazards. of the upon purpose determination however, punitive, al will not end and not imposes a disabil- If the statute statute. inquiry. our purposes punishment ity for —that is, wrongdoer, to deter reprimand Second, leg even when others, etc., pe- it has been considered remedial, intent we must still islative nal. But statute has considered notifica determine disability, not to nonpenal imposes if it effectively punitive that tion scheme is so legiti- accomplish some other punish, but Ward, it negates the remedial intention. purpose. The Court governmental mate 248-49, 2641, 65 448 U.S. at 100 S.Ct. at recognized statute decree- important con L.Ed.2d at 749. The most adversity consequence as a ing some statutory here is whether this sideration penal have certain conduct both scheme, perhaps having pu certain “while controlling and a effect. The nonpenal important nonpuni- aspects, serve[s] nitive normally de- nature of such statutes goals.” Ursery, tive United States pends purpose on the evident 267, 290, 2135, 2148, 135 116 S.Ct. U.S. legislature. (1996). overriding L.Ed.2d Dulles, 78 S.Ct. Trop U.S. protection of aim is the of these statutes 595-96, 2 L.Ed.2d offend predations from the of sex children omitted). (footnotes long neglects can last that society ers. No This First, children. preserve to secure and its ascertaining remedial, punitive. design protective, look purpose of the we evident Hendricks, 346, 117 In v. 521 U.S. expressly “indicated either or Kansas to whether it 2072, (1997), the 501 138 L.Ed.2d label or the S.Ct. impliedly preference one Ward, Supreme held that United States Court States v. 448 U.S. other.” United 2636, 2641, commitment statute 242, 248, a Kansas civil 65 L.Ed.2d under 100 S.Ct. (1980). offenders, if 742, legislative accept [a] we “[e]ven We have no for sex 749 provision that of treat determining purpose in history to aid determination Legislature’s ment was not the Kansas statutes. sex offender passing However, ‘primary’ purpose or chapter ‘overriding’ Laws 1994 S.D. Session Act, possibili this does not rule out the that the statutes are Act “[a]n 174 states ty ancillary purpose the Act of convicted that an provide treatment, re addition, it does provide 1995 adult sex offenders/’ puni the Act is explains quire 123 us conclude chapter Laws S.D. Session 367, 2084, 138 at 117 at tive.” Id. S.Ct. sex offender laws are Only by the “clearest cer- at 518. the whereabouts of L.Ed.2d Act track “[a]n 256 Feiok, (S.D. was State v.

proof’ 536, can it shown that what 364 N.W.2d 540 1985). is in fact punitive. created as remedial Ward, 248-49, at 100 S.Ct. at 448 U.S. [¶ 16.] The Mendoza-Martinez fac 2641, (citing Flemming 65 at 749 L.Ed.2d tors include: Nestor, v. 603, 617-21, 80 363 U.S. S.Ct. [a.] Whether sanction involves an (1960)[Ne 1367, 1376-78, 4 1435 L.Ed.2d restrain^;] disability affirmative or Hendricks, stor]); see also at 521 U.S. it historically [b.] Whether 361, 515; 2082, 117 S.Ct. at 138 at L.Ed.2d regarded punishment[;] as a Pataki, v. 1263,

Doe 120 F.3d 1274 [c,] (2dCir.l997)[Pataki ](citing Ursery, 518 play only Whether it comes into 2148, scienter[;] 290, finding at U.S. 116 S.Ct. at 135 L.Ed.2d 549). It a “highly specific context mat will operation promote [d.] Whether its Pataki, ter.” 120 (citing F.3d at 1275 the traditional of punish- aims Nestor, 616, 1375). at 363 U.S. 80 S.Ct. at ment —retribution deter- Lastly, “whether sanction constitutes rence[;] punishment is not determined from the [e.] Whether the behavior to it which perspective, defendant’s as even remedial crime[;] applies already ” carry ‘sting sanctions of punishment.’ [f.] Whether an purpose alternative Ranch, Department v. Revenue Kurth may which it rationally be connect- 767, 777, 14, 1937, 511 n. U.S. 114 S.Ct. it[;] assignable ed is 14, 1945, n. 128 L.Ed.2d n. 14 [g.] Whether it appears excessive in (1994). relation to the purpose alternative Many deciding [¶ 15.] courts faced with assigned[J sex offender schemes are Mendoza-Martinez, 168-69, 372 U.S. at 83 punitive in effect have the factors 567-68, S.Ct. at 9 L.Ed.2d at 660-61. set forth Supreme the United States These guidance, considerations afford but Kennedy Mendozar-Martinez, v. Court they are “neither disposi- exhaustive nor 144, 554, 372 U.S. 83 S.Ct. 9 L.Ed.2d 644 Ward, 249, tive.” 448 U.S. at 100 at S.Ct. (1963). See, Noble, e.g., v. State 171 Ariz. 750; Feiok, 42, 65 L.Ed.2d at 364 2641— 171, 1217, (1992) (en banc); 829 P.2d 1221 Indeed, at N.W.2d 540. some factors State, Collie v. 1000, (Fla. 710 So.2d Mendozo-Martinez, contradict others. Pickens, Dist.1998); State v. App. 168-69, 567-68, 372 U.S. at 83 S.Ct. at (Iowa 1997); v. State L.Ed.2d Manning, (Minn.Ct. Disability a. Affirmative or Re- Cook, v. State App.1995); 83 Ohio St.3d straint (1998), 700 N.E.2d cert. de — nied, Ohio, Cook v. -, U.S. Registering imposes no “affirma (1999); S.Ct. 143 L.Ed.2d 116 State disability tive restraint” the tradition Ward, 123 Wash.2d 869 P.2d al sense on convicted sex Their offenders. (en banc). But Artway see movements and activities are not restrict Attorney NJ, General State usually 81 F.3d ed in the manner associated with 1235, 1261-62, reh’g denied 83 F.3d Myers, State v. punishment. criminal (3rdCir.l996)(finding (1996), Mendoza-Martinez Kan. P.2d cert. denied, factors “inapplicable outside the context of Myers, Kansas v. 521 U.S. determining whether proceeding is suffi- (1997); 117 S.Ct. 138 L.Ed.2d 1012 ciently criminal in nature Manning, to warrant crimi- 532 N.W.2d at They 248. may nal procedural protections of the Fifth and any live in community Dakota, in South Amendments.”). Sixth subject a different con- requirement they the that regis text, we Ward, these factors to if a ter with local law enforcement. See decide sanction was penal civil or in nature. 869 P.2d at If 1069. the act of no registration, in- of his in subjecting registrants to cause State distressing, is no in criminal way complicit it creates can be held those scrutiny, nonetheless creased Pataki, in inci- recognized As those disability punitive or restraint acts. affirmative requirement impulses dents the foul of third flowing from the result from parties “essentially from the [flow] itself. at underlying ... conviction.” 120 F.3d information Although registration [¶ 18.] behavior, retaliatory 1280. Such however records subject open is Dakota’s South responsive unjustified, is to the offender’s laws, to the public, is thus available and in own criminal conduct which resulted community notifi- are no affirmative there conviction, not the and notifi- (regis- 22-22-40 SDCL provisions. cation Yet, also cation statutes. a public information is record as tration registrants by protect measures to took 1-27). Chapter in To obtain the provided passing punishes a statute that those who must public a member of information commit of attacks. SDCL types these See government it at a office. Details seek out felony criminal (mandating pen- name, registrant’s de- available include the person alties for commits crime address, of sex scription, type and through as a result of information obtained committed, of both crime and the dates registry). the sex offender The informa- No restric- commission and conviction. registry tion contained the sex offender may placed on access the tions are who as almost the same information available states’ laws are more information. Some where public record courthouse accessing in either or dissemi- restrictive “An the conviction occurred. offender’s Myers, nating registry information. See public conviction is a matter of record that, as of (stating P.2d at 1029 registration.” Manning, of the regardless statute, only the Kansas “besides 248; Pataki, at 532 N.W.2d at see 120 F.3d allow Georgia and Dakota statutes South information can be same in- public registrant unrestricted access to by spectators who are at the learned those formation”). that the Meinders contends hearing newspa- read a offender’s or who practical of such broad access effect per article about the case. regis- it offender data makes difficult housing employment obtain or trants to Historically Pun- b. Not Considered act as an consequently may and law ishment disability. affirmative restraint or See Additionally, Myers, 923 P.2d at 1041. Registration access [¶ 20.] insists, stigma historically have not been registrant data accompanying the offender” ostracism “sex punishment. generally viewed as See or may label act as an affirmative restraint California, Lambert U.S. subject may registrant disability and 240, 243, 2 L.Ed.2d 228 78 S.Ct. physical attacks individu- to threats and (finding felony registration permissi law Registration may acting vigilantes. als tool, law enforcement but individual ble on life adverse affect Meinders’ have some duty knowledge “actual must have remains, question Yet the after release. probability or proof the intent remedial? subsequent failure knowledge such law under the comply” before conviction penitentia- Meinders is still Pickens, stand). also Once can See ry years. remain there 248; 400; otherwise, released, Manning, 532 N.W.2d at on his parole he is Noble, Cook, N.E.2d at 582. But see record forev- felonies will remain has tradi er, If, (“registration at 1222 pardoned. based 829 P.2d unless he notification, punitive.”). “Gov tionally viewed as vigilante law- registration and harm, varying use methods to do him either ernments often breakers seek for law way as a enforcement through knowledge of his or be- record 258

agencies easy necessary Gregoire, to have access to Russell v. 124 F.3d 1088- (9thCir.l997). Manning, 532 at 89 information.” N.W.2d 248. Operation d. Will Not Promote Retri- bution or Deterrence. Requirement

c. Scienter alleges regis- [¶ 22.] Meinders that the requirement subsequent public tration Existence the re availability on his quirement customarily of information conviction of scienter is im for statutory rape promote punish- will portant distinguishing criminal from civ this, Mendoza-Martinez, ment and deterrence. he il Because statutes. See 372 argues, the regulatory nature of the stat- at at 83 S.Ct. at U.S. L.Ed.2d destroyed. utes argument “[T]he Whether require 661. promotes law traditional finding a requires ment of scienter is goals punishment and deterrence has separate issue from whether a criminal rejected by other courts on the register requires conviction failure to ground primary that the purpose of sex Burr, finding of scienter. v. See State registry punish not to but to (N.D.1999) (citing Man aid the of law efforts enforcement officers 247-48). ning, 532 Although N.W.2d at protecting Pickens, society.” required register those have been con addition, N.W.2d at 400. deterrence offense, victed of the registration presupposes that punishment will discour- statutes themselves not contain an do addi age many a certain act. Arguably, requirement tional of scienter. Arizona offenders remain undeterred even Court, Dep’t Safety Superior Public Cook, threat of incarceration. 700 N.E.2d 190 Ariz. (App.Div. 949 P.2d persons 583. To these 1997). The registration requirements are and notification laws hold little further de- triggered simply by the offender’s arrival terrence. in a community. The act of failing register triggers alone punish the criminal [¶ 23.] Even if there some de inment SDCL 22-22-31. SDCL 22-22-38 terrent effect to the registration require require and 22-22-39 that offenders be ment, negate that will not regu the overall register informed of the duty before latory or remedial nature of the statute. Cook, discharge, parole, probation. See Cook, Manning, 248; 532 N.W.2d at 700 N.E.2d at 583. As the Ninth Circuit N.E.2d at “Although may Act Court of Appeals stated: deterrence, implicate it does not implicate emphasize

We failing that the crime of primary objective the other of criminal under the retribution, Act a punishment, constitutes because it neither separate offense. The fact a prior culpable labels the offender as more than conviction for sexual misconduct is an (though before his or culpability may her register” element the “failure widely of- be more publicized), nor does it consequence. fense is of no It is finding horn- turn on a Gregoire, of scienter.” book law that no problem ex objective F.3d at 1091. The facto occurs legislature when the creates protect statutes is to children and other new prior offense that includes a convic- vulnerable against individuals future of (stat offense, Cook, tion as an long element of the as fenses. See 700 N.E.2d at 583 other relevant place ing: provisions conduct took have the “[T]hese remedial after law passed. Supreme purpose collecting disseminating in Court has recently suggested as much. formation persons protect to relevant See United States Watts, ^[519] from registrants who reof- U.S.[148], fend.”). 117 S.Ct. 136 L.Ed.2d Although obviously it is embar (1997). rassing to be included the register, likeli- molesting, greater where there is punishment. is a of not form humiliation Generally, regis- of the 949 P.2d at hood recidivism. Dep’t Safety, Public Arizona of tration of 22-22-31 requirements SDCL 990-91. regu- not in relation to the are excessive Not a Second Punishment e. latory assisting law purpose of enforce- to future crimes. prevent ment Courts requirement is registration The [¶24.] overwhelmingly upheld registration have for one of the by a conviction triggered to re- provisions similar the ones under in SDCL 22-22-30. enumerated sex crimes registration of portion view here. The the sex of- punishment flowing from Any registration South Dakota’s sex offender from a statutes comes fender (SDCL through statutes SDCL register, past from failure to 22-22-39) vio- punitive are not and do not Cook, at 584. offense. 700 N.E.2d against ex facto prohibition late laws. Rationally Alternative f. Related Purpose reg- Dakota’s sex offender [¶ South nonpunitive a 25.] Is there for provisions have no istration statutes rationally related to purpose

alternative their classifying according offenders to statutes? registration and notification Instead, pro- our law risk recidivism. 949 P.2d at Dep’t Safety, Public Arizona all convicted of one vides that individuals regulatory nonpunitive, purpose specified must for offenses laws is to of the sex offender life, public and it access to the allows investigations and law enforcement assist information, regardless of a children, citizens, especially protect prior of the offender’s risk of assessment 991-92; Id. future sex offenses. at against community. or threat to the recidivism Cook, 248; Manning, 582 N.W.2d provide varying degrees Some states “In general, protection at 584. N.E.2d on the offender’s public notification based paramount government is public See, e.g., Del.Code risk of recidivism. through police pow function enforced 1998) 11, § (Supp. (providing Ann. tit. (citation Cook, er.” 700 N.E.2d at periods for different omitted). -registration laws were cre Our notification based different levels of safety, for public ated out of concern to assigned tier offend- on risk assessment children, especially protection 1998) § er); (Supp. Idaho Code punishment. from desire increase classification (duty of sexual offender Pickens, 558 at 400. Public access whether an offender is board determine that sex offend to the information ensures high predator with risk violent sexual seeking the er data is available to those § reoffending); Ky.Rev.Stat.Ann. 17.572 safety law afford. designed is 1998) levels (providing different (Supp. depending on the risk notification g. Purpose Not Excessive Alternative offender); Me.Rev.Stat. assessment 1998) 34-A, (pro- § 11141 (Supp. Ann. tit. that even argues viding risk assessment to determine allowing public ac- purpose for legislative law enforce- of notification to regulatory the extent cess the information offenders, Minn.Stat.Ann. public); un- ment punish not intended to 2000) § for a (providing 244.052 (Supp. to the is ex- given access restricted scale which used risk assessment goes to him and be- cessive level; the ex- identify offender’s risk yond necessary promote public what by the determined P.2d at 1043. tent of disclosure is safety. Myers, See level); Neb.Rev.Stat. 29- offender’s risk that one convicted of Meinders contends 1998) levels of (providing three (Supp. face same statutory rape should not recidivism). risk of based on convicted of child notification consequences as those Largely, registrant the relative [¶ 30.] Public access to infor- mation is a statutory rape logical regis- extension the culpability compared as process. public tration When the is a judgment. other sex offenses value allowed access the information collected If Legislature perceives pro a need to promote public safety, or if the informa- young tect from those who would people restricted, unreasonably tion is then the activities, engage them sexual are we registration system and notification is pur- proclaim response per able to that the poseless. Legislature obviously con- ception danger is so skewed and the templated that law enforcement and the measures taken so immoderate that our public would use be allowed to the infor- federal and constitutions will not to state mation to make informed knowledge- lerate the enactments to stand? Our an able safety decisions about issues. More- given in swer must be deference to our over, code, chapter under our n legislation. reviewing limited role in Al only records are open for though might perceive we distinction in viewing certain locations. Nowhere in the need for notifi our statutes is wide dissemination statutory rapists cation between and other authorized, jurisdictions as in some where offenders, judges we are not free as published data is in local legislative only overrule pass values. We newspapers. will Although police directly permissible scope reg of legislative information, receive must go ulation, not its wisdom. The view that local law agency enforcement or a judges legislative function to fine tune ex state office to access the information. Only cess has long discarded. when This is hardly “poster-on-every-cor- plainly unmistakably statutes are un ner” notification that Meinders ex- implies constitutional we declare them void. ists. ¶ Laible, State 1999 SD instances, In [¶ some requiring 31.] (citing Taylor Properties, offenders with local law en- ¶ 10, County, Inc. v. Union 1998 SD forcement for life may result in hardship. (other 583 N.E.2d omit citations This, however, cannot overcome the defer- ted)). A presumed statute is constitutional give ence we must Legislature’s to the until proved it is beyond otherwise a rea law-making authority. Furthermore, Baker, (citing sonable doubt. Id. State v. though paints picture bleak (S.D.1989) (citation 440 N.W.2d those statutory rape, convicted of if sen- omitted)). tencing judges believe there are sufficient mitigating statutory case, factors in a rape [¶ 29.] Recognizing pernicious impact they grant can a suspended imposition of children, against crimes “our Legisla- sentence, will which relieve the offender of years ture in recent has revised the law requirements upon dis- prohibiting statutory rape to reflect its charge. 22-22-31. SDCL accelerating protecting concern with chil- dren. In 1980 the law was amended to Chief Justice Robert N. increase penalty from ten to Wilentz the New Jersey Supreme fifteen Court years and again powerful in 1984 delivered a amended to raise statement in that the age addressing of consent state’s seminal case “Megan’s from fifteen to sixteen. 22-1-1(5), Law.” 175; See He wrote: SDCL 1980 SL ch. Bonner, 1984 SL ch. 167.” State v. The choice the made was ¶

SD difficult, for at stake was the continued increasing the ambit of statutory rape pro- apparently lifestyle previous- normal hibitions, Legislature obviously con- offenders, ly-convicted sex some of cluded that young adolescents need addi- whom doing very were harm and no well protections. tional harm, might never do any weighed molestation, rape, reproach her and excuse Meinders. potential should against Her remark made at a most and chil- naive troubled by others of women or murder precisely why Legis- time in her life 'is our did not know they simply because dren having with underage a and lature made sex ado- person of such presence a legislators recog- take common-sense lescents crime. Our did not the therefore appears an occur- nized what the dissent reluctant to might prevent such steps that acknowledge: can young to risk adolescents Legislature The chose rence. vulnerable, impressionable, and sometimes previously-convicted to the unfairness choices, subject espe- making than unfairness to the ill-advised rather offenders cially put upon by adults. The might very who suffer when children and women statutory rape of is that children ignorance.... their essence because of incapable giving are consent. In its Poritz, A.2d 373 N.J. Doe crime, downgrade effort to Meinders’ the (N.J.1995). re Legislature The is “not the ignores Supreme dissent Court’s ad- Pa- perfect precision.” to act with quired the assessing monishment that constitu- taki, long the 120 F.3d at 1283. So as enactments, tionality types these we the regulation appropriate promote perspective. must not take the offender’s statute, the charac nonpunitive goal of Ranch, Kurth 511 U.S. 114 S.Ct. change, does not even ter of the statute position very day 1937. Meinders’ to this a casts “wide net.” when nothing wrong. is that he did The dissent Id. the health and wel at 1282-83. When attitude, seems to embrace this character- stake, most are at fare of innocents izing as al- Meinders’ offense “consensual” prevents action is the one that reasonable Thus, illegal. though pro- the dissent has not tragedies. Meinders needless claims, is not type “Meinders’ crime that this remedial stat proof shown clear crime that the sex offender punitive ute is nature. are intended to This statutes address.” hand, many the other states [¶ 33.] On belief, earnestly may be the dissent’s held provide length limit the judges but it declared that we where is into levels for classification of offenders values with Legislature’s override the on risk of recidivism. dissent based Kennedy, our See Veeder v. own? regulatory on these other schemes seizes ¶23, 23, 610, 616. SD case, minority Myers, supra, to and cites a Dakota’s Sex Of- Conclusion: South argue that South Dakota’s sex offender Registration Notifica- fender ap- law is unconstitutional as are Constitutional tion Laws Yet, plied dissent Meinders.4 say certainty crime of No one can with nothing than an attack less Meinders, similarly con- that others statutory rape itself. It seeks to distin- statutory again rape, victed will not felony types from other of sex guish this relationship sexual begin rela- seek to another by suggesting offenses that “similar minor. Predictions of future of- good into mar- with a tionships grow reasonably famously are unreliable. to time.” other fender behavior riages from time What evidence, provides convincing no sanctify logic? with such Meinders might crimes one Worse, health beyond the affidavit of one mental quotes childish the dissent A.G.’s years ago professional, group in a that as convicted perception of that she was any susceptible are less “dating relationship” statutory rapists as if that comment implementing explain Wetlerling limiting this that lines law The Jacob Act advises years, wishing compliance to ten unless the individual with "to achieve states desig- prior one or more convictions for has Wetterling Act should understand Jacob offenses, ag- has been convicted of an nated requirements constitute floor for its offense, or gravated sex has been classified ceiling.” registration systems, not a state predator." "sexually U.S.C. violent 18,613 (1995). Fed.Reg. However, 14071(b)(6). proposed guide- types of- punishment, to recidivism than other offender was not thus clause); But even if this is reliable post fenders. not violative of the ex facto Meinders, how can it prediction, apply O’Connor, Spencer N.E.2d 1039 (cid:127) uncooperative sex offender man who (Ind.Ct.App.1999) (finding notifi treatment, de- wrongdoing who denies provisions regis cation the sex offender verdict? current spite jury’s Under do punishment tration statutes not inflict state, law, both our case federal and, therefore, valid); Opinion are registration and notification stat- Senate, Justices to the 423 Mass. regulatory, penal. utes are rather than (1996) (community N.E.2d 738 notification met his burden under laws do violate the ex facto the Mendoza-Martinez factors.5 clause); 618, People Afrika, v. 168 Misc.2d (stat (N.Y.Sup.Ct.1996) 648 N.Y.S.2d 235 clearly 35.] envi- [¶ utes requiring and notification type sioned that this of offender should be dispute to certain law agencies “tracked.” We cannot the authen- enforcement ticity Undoubtedly, community dangerous of this entities for conclusion. valid offenders); Cook, 404, perceive underage those who adolescents 83 Ohio St.3d 700 game relationships as fair for sexual create N.E.2d (concluding 570 that the notifica real Comparing threat. our method public, tion statutes serve to protect populous, with more urban and thus limited dissemination of the infor states with denser law enforcement net- constitutional); Ward, mation was 123 ignores works that in some areas our (holding Wash.2d 869 P.2d 1062 only rural state the source of law enforce- disclosure of in sex offender may county ment information sher- “necessary formation valid when release is It nothing say iff. resolves to that South public protection”); see v. also Lanni toughest registration Dakota has the law Engler, 994 F.Supp. 854-55 concerning public fifty All access. states (E.D.Mich.1998); Gregoire, 124 at F.3d have existing similar enactments within a 1093; Kelley, F.Supp. Doe 961 range, tougher aspect some in one or an- (W.D.Mich.1997). other. be at one spectrum To end of the be, however, [¶ It well 37.] that in equivalent unconstitutionality. not to future the Legislature adopt sessions will conclusion, In we affirm the appli amendments to tailor notification to the cation of the and notification risk of certain recidivism sex offenders requirements Many to Meinders. other Trial pose. and error is usual and upheld courts registra have sex offender certainly way the most democratic to rem- tion and notification See Roe v. laws. Of edy or excesses deficiencies constitution- Probation, Adult F.3d 47 fice of ally legislation. sufficient Courts should (2dCir.l997) (notification policy punish not only intercede when the constitution has Noble, post analysis); ment under ex facto unmistakably been breached. (access 171 Ariz. 829 P.2d 1217 to sex held constitutional when 2. Ex Post Facto Amendment information was to potential available em Good Time Laws ployers, government agencies); People v. Logan, Ill.App.3d 235 Ill.Dec. claims Meinders that (making N.E.2d information 1990 and 1994 amendments to SDCL 24- readily available to the public change from the sex 2-126 and 24-2-187 good time and penal, As these are July provid- laws not Meinders' 6. Before SDCL 24-2-12 they claim ed: that are cruel and unusual must 95-97, Trop, also against fail. 356 U.S. at Every disciplin- S.Ct. inmate whom the ary punitive 2 L.Ed.2d at 639-40. sanction confinement violating shall be awarded rules, regulations policies peni- premature is so that the to him. There- do so the issue disadvantage result in a fore, application to speculate he court would have to reasons Boever, the ex him violates injury.” amended statutes presence of real Lee, However, Steve post facto clause. (citing at 750 Meadows West Dakota State South Deputy Warden City Memphis, Memphis West at the habeas hear- Penitentiary, testified (8thCir.l986)). 212, 214 F.2d Because have not the amended statutes ing have penitentiary applied authorities he Meinders and has lost he the amended statutes to Meinders and argue good time. does no injury, no suffered we find that this addition, plans there are no otherwise. judicial ripe issue is not review. statutes to him. apply the amended authorities prison are Apparently, 3. Sex Offender Treatment Self- judge’s deci- abiding by a Seventh Circuit Incrimination declaring application that retroactive sion An required inmate [¶40.] of the 1995 amendments SDCL 24-2-18 he admit the crime for which is convicted ex fac- prohibition against violates the STOP, participate the sex order to laws. the program offender treatment offered at The State claims that [¶39.] penitentiary. this Meinders insists have not the amended statutes because right against self- requirement violates his Meinders, this issue is not of incrimination. He claims that “threats “Ripeness in judicial for review. ripe upon a confes conditioning release based judicial of review and the timing volves the in improper sion treatment unless machinery ‘[¡Judicial should principle that granted has immuni defendant first been problems which are real be conserved for ty.” imminent, squandered present or his 41.] Meinders was convicted of hypo abstract problems which are or ” summarily in affirmed on crime 1990. We Boever v. South Da thetical or remote.’ by noted the habeas appeal. direct As 747, Accountancy, N.W.2d Bd. 526 kota of court, jeopardy double considerations (alterations (S.D.1995) in original) 750 this prevent would another conviction for 89, Hegg, v. 89 S.D. (quoting Gottschalk crime. “It is well established that (1975)). 640, 643-44 228 Courts N.W.2d pro- privilege [against self-incrimination] controversies, only should mature decide dangers, remote and against tects real eschewing advisory opinions conjectur New Zicarelli v. speculative possibilities.” Herseth, Kneip al v. 87 S.D. questions. 406 Investigation, 93, (1974). Jersey State Comm’n 642, “Even a 214 N.W.2d 96 of 478, 1670, 1675, 32 92 U.S. S.Ct. jurisdiction to decide the consti court has (1972). law, it to L.Ed.2d 240 tutionality of the should decline board, by disciplinary by The established tentiary, unless otherwise determined warden, adjust- promulgated by Department in of shall be housed rules Corrections, penitentiary away granted section of the take time ment center pursuant § period necessary good 24—5-1 deemed for the conduct for for the violating policies discipline, justice, any or interest of rehabil- rides best of of Corrections, following Department protection self and the and oth- itation subject hearing approval to the While under conviction for violation ers. rules, regulations superintendent. (Emphasis policies, or such warden added.) adjust- confined in the whether or not center, ment such inmate shall automati- was amended in 1995 . 7. SDCL 24-2-18 day granted cally one time forfeit good time "for allow the reduction good day each served under conduct for within the added.) person convicted of sex crime (Emphasis such conviction. fully co- meaning 22-22-30 who fails SDCL 24-2-12 amended SD operate all offered.” 1995 provide, perti- with treatment July effective 1990 Laws, Session ch. 138. part: nent 264 prose- preparation a real risk of criminal or did not for trial and

failed to show do might presentation at any statements he his defense cution based on court, Therefore, however, may trial. This treatment. his Fifth substi- make in judgment tute its for that of the own right against Amendment self-incrimina- circuit court as to program’s whether defense coun- tion is not violated reha- in- sel’s actions or inactions constituted requirement. bilitative effective assistance of counsel. Ineffective Assistance of Counsel ¶ Sund, 123, 14, 1998 SD ¶ tri [¶ Meinders claims his 107, 11, (quoting Loop, 1996 SD 554 (1) al counsel was ineffective because he: Solem, (quoting N.W.2d at 191 Aliberti defense; present age did not mistake of (S.D.1988))). N.W.2d (2) present did not a lack of pen sexual strong pre [¶ 43.] There defense; present etration failed to sumption that trial counsel’s performance regarding prior evidence the victim’s sexu competent, petitioner alleging and the al conduct and mental The ha- disorders. ineffective assistance counsel carries the beas court found that Meinders failed to heavy overcoming presump burden of presumption that trial overcome coun ¶ Class, tion. Sprik SD competent sel was and effective. (citations omitted). adopted two-prong We have test of reviewing performance “In trial counsel’s v. Washington, Strickland 466 U.S. it is not this function to Court’s second (1984), S.Ct. 80 L.Ed.2d guess experienced decisions trial ineffective assistance of counsel attorneys regarding matters of trial tactics First, applicant] claims. must [the the unless record shows that counsel failed prove perfor- that his trial counsel’s investigate possible and consider de mance was He must deficient. show good fenses to exercise their faith that trial counsel errors made “so seri- ¶ 24, judgment thereon.” Id. 572 N.W.2d ous that not functioning counsel was as (citing at 829 Fast v. 521 Leapley, Horse guaranteed the by ‘counsel’ ... the 102, (S.D.1994); N.W.2d 106 Roden v. So Sixth Secondly, Amendment.” he must lem, 665, (S.D.1988); 431 N.W.2d 667 State show that performance the deficient Walker, 705, (S.D.1980); 287 N.W.2d 707 “prejudiced by showing the defense” State, 86 Crowe v. S.D. 194 N.W.2d that “counsel’s errors were so serious as (1972)). 238 to deprive the a fair tri- defendant of n age [¶ 44.] Mistake is not al[.]” reasonableness of trial coun- Fulks, statutory rape. defense to State v. sel’s action per- is evaluated from his S.D. 160 N.W.2d spective alleged at the time the error (stating: prosecution “In a for alleged occurred. statutory rape[,] the defendant’s knowl ¶ Weber, Sund v. 1998 SD edge age girl of the of the involved is (quoting N.W.2d Garritsen v. immaterial his reasonable belief that (S.D.1995) (al- Leapley, age she is over the is no [consent] terations original) (quoting Mitchell defense.”). Meinders’ propose counsel did (ci- Class, (S.D.1994) jury instruction on of fact. The mistake omitted))). tations rejected trial proposed court the instruc Whether defendant has received inef- tion. fective assistance of counsel is essential-

ly a mixed In question granted of law and fact. 45.] The trial court [¶ the clearly absence of a erroneous deter- motion in preventing limine the State from court, introducing mination the circuit we must preg evidence of victim’s defer to its findings primary nancy, such opened unless the defense the door. facts regarding what defense counsel did If counsel in- attempted Meinders’ had purposes. for law enforcement Meinders pen- that no sexual troduce evidence However, application occurred, the retroactive then State had etration able to introduce it relates 22-22-40 to Meinders as have SDCL would Therefore, claim. to rebut is unconstitutional. We pregnancy access was shown that counsel portion has not Meinders hold that should SDCL a lack of failing present providing deficient for unlimited 22-22-40 defense. penetration applies sexual it as access unconstitutional - where the conviction is to these facts trial claims that 46.] [¶ statutory rape arising of a dat- out evidence of have introduced should counsel ing relationship, con- where there was conduct and al sexual past victim’s sent, although illegal, giving rise to However, trial disorders. leged mental likely repeated, crime not shown reasonably believed have counsel could - opposed to child molestation be- past victim’s sexual that evidence remedial, punitive, cause it is rape our inadmissible under conduct was punishment more burdensome such shown and Meinders has not shield laws was commit- now than when crime admiss evidence would have been that such Therefore, Meinders be re- ted. should addition, pre In Meinders has ible.8 require- leased from the victim was any evidence sented through 22-22- ments of SDCL mental which suffering from disorders 22-22-40, proce- unless 39 and SDCL credibility. her would affect to limit ac- dures are instituted record, we reviewing After 47.] [¶ registry Meinders’ information cess to has failed show that that Meinders find provide a mechanism for relief from deficient. performance trial counsel’s registration requirement. lifetime Therefore, unnecessary to reach the it is determining this sex [¶ test. whether prejudice prong of the Strickland punitive, of ha- law is affirm the circuit court’s denial We as- opinion relief based on ineffective corpus beas Mendoza- majority factors; counsel. sistance of Martinez an the sanction involves [a.] Whether 48.] Affirmed. restraintf;] disability or affirmative MILLER, and Chief Justice 49.] [¶ it historically [b.] Whether Justice, GILBERTSON, concur. regarded punishment[;] as a AMUNDSON, SABERS, on play only and it 50.] Whether comes into [¶ [c.] Justices, scienter[;] in part concur in and dissent finding of part. promote will operation its [d.] Whether of punish- the traditional aims SABERS, (concurring part in Justice and deter- ment -retribution dissenting part). in renee[;] with 51.] I concur Issues [¶ it to which behavior [e.] Whether l[g]. I vote to re- but dissent Issue crime[;] already a applies is limiting for of purposes verse and remand to purpose an [f.] offender Whether alternative public access to Meinders’ sex may rationally re- be connect- and the lifetime which it registry information it[;] any for registration, assignable of without ed is quirement for relief. mechanism it excessive [g.] appears Whether purpose alternative relation to the applica- affirm the We should requirements assigned!.] registration of the tion strategy. reasoning or trial senled on his died the ha- Meinders' trial counsel before pre- proceeding; thus no evidence was beas Mendoza-Martinez, Kennedy classifying according U.S. offenders to their Instead, risk of 144, 168-69, 554, 567-68, recidivism. South Dakota 83 S.Ct. provides law that all (1963). individuals convicted majority L.Ed.2d of one the specified of offenses must regis- opinion concluded that Meinders did it life, public ter allows the unre- meet under these I for his burden factors. stricted access to the registration informa- I disagree. specifically, disagree More tion, regardless offender’s risk with the conclusion that Meinders did not community. recidivism or threat to the - [g.] meet burden under his whether particular case, Under the facts of this this public registra broad dissemination of the application SDCL 22-22-40 to Meinders 22- tion information allowed under SDCL goes beyond is excessive because it requirement reg 22-40 and the lifetime regulatory purpose sex offender istration, relief, without mechanism punitive. statutes and is excessive relation the alternative [¶ We note that 56.] sex offender assigned. purpose initially statutes enacted provide varying Other states 1994 did not apply the offense of statu degrees notification based on the tory rape. See SD Session Laws ch. See, e.g., risk of offender’s recidivism. 174, § Although statutory l.9 rape is a 1998) 11, § Ann. 4121 (Supp. crime, DeLCode tit. serious it must be noted that this (providing for periods registra- different was a “consensual relationship” between a fifteen-year-old, tion rebellious incapable and different notifica- of le levels consent, gal nineteen-year-old. and a Á.G. tion based on risk tier as- assessment characterized relationship dating as a offender); signed § Idaho Code 18-8314 ideal, relationship. Although from far sim 1999) (Supp. (authorizing sexual offender ilar relationships grow reasonably into classification board to determine whether good marriages from time to time. Mein- an predator offender is a violent sexual ders’ crime is not type of crime that reoffense); high Ky.Rev. with risk the sex statutes are 1998) (Supp. (providing StaiAnn. 17.572 intended Although address. one cannot public, for different levels of notification discern with certainty the motivating fac depending on the risk assessment of the conduct, tors of Meinders' these facts do offender); 34-A, Me.Rev.Stat.Ann. tit. not show that poses significant 1998) § 11141 (Supp. (requiring the utiliza- reoffending risk of justifying the retroac tion of a risk assessment instrument application tive dissemination determine the extent of notification to law portion of the sex statutes. public); enforcement and Minn.Stat.Ann. v. Myers, See State 260 Kan. 923 P.2d 2000) § 244.052 (Supp. (providing 1024, 1042-43 (1996). risk assessment scale which is to used legislative [¶ Although 57.] the purpose level; identify the offender’s risk ex- the allowing for public to access the informa- tent of disclosure is determined the regulatory tion is and not to pun- intended level); § offender’s risk Neb.Rev.Stat. 29- offenders, the ish public “[t]he unrestricted 1998) 4013 (Supp. (providing three levels of given access to the sex offender is registry recidivism). notification based on risk of [as excessive applied to Meinders] South reg- Dakota’s offender beyond goes necessary promote to provide istration provisions statutes no for public safety.” Myers, 923 at 1043. P.2d Therefore, ry the law as rape Under enacted in the defi- degree rape. as third nition "sex crime” included first and sec- legislature passed when the the sex offender 22-22-1, degree rape ond as defined SDCL registration statutes in the crime degree. Although but not third rape statutory degree was classified as third degree rape January indicted for second rape registra- and was not a crime for which legislature amended SDCL 22-22-1 required. tion was July effective 1990 and reclassified statuto- (requires registration years for ten or until aim have been legislative While release, remedial, regardless “probation, supervised or condi- repercussions, expires, to be great enough period are tional release whichever oc- justification, applied later”); § as to Mein- punishment curs Neb.Rev.Stat. 29-4005 considered 1998) “pun- then takes this Dakota (Supp (requires registration ders. South for ten step requires further and one ishment” to years, unless the individual is found be provides no mech- registration offender); lifetime sexually N.D.Cent.Code violent petition to for for sex offenders 12.1-32-15(8) (1999) anism registra- § (requires registration requirement.10 relief from offense; year for a ten for period tion first registration specific for required lifetime contrast, limit the In other states [¶ 58.] (1997) offenders); § 181.600 Or.Rev.Stat. for clas- registration provide length of (allowing petition offender to for relief on of offenders into levels based sification requirement after ten registration from See, e.g., Ariz.Rev.Stat. risk recidivism. addition, 1998) In years). federal version (limiting (Supp. § Ann. 13-3821 only ten registration this law limits to requirement); registration Colo. length of 18-3-412.5(6.5) (7) has one or years, § & unless individual Rev.Stat.Ann. designated of more of- varying periods prior for convictions for (providing degree fenses, crime depending aggravat- of an registration been convicted committed; regis- offense, to limiting public access ed sex or has been classified as information); tit. Del.Code.Ann. try “sexually predator.” violent U.S.C. 1998) 4120(a) offender (Supp. (allowing 14071(b)(6). § § registration for release from petition to ease, un- Under the facts of this [¶ 59.] if no conviction requirement subsequent registry to informa- limited access likely pose and not years within fifteen tion offender without for lifetime § society); Idaho Code threat for pun- mechanism relief therefrom 1999) (allowing petition offender to (Supp. as ishment Meinders.11 See registration requirement for relief from P.2d Myers, 923 at 1043. Would-be years, designated unless after ten since July offenders have been on notice Ann. predator); sexual Iowa Code violent they subjected 1994 that will be 1999) (Supp. (requiring registra- § 692A.2 sex of- they specific disclosure if commit offense; if first years tion for ten second Meinders was of statu- fenses. convicted regis- in lifetime and third offenses result tory rape July of 1990. He could tration); § Ky.Rev.Stat.Ann. (Supp. 17.520 charged with notice of possibly having 1998) registration for ten (providing year statutes. these unlimited disclosure designated low or period offender punishment on the effect these Based risk; re- registration lifetime moderate as well as the lack of notice statutes only, high risk offenders but quired Meinders, 22-22- application of SDCL provision relief lifetime includes from it unlimited 40 Meinders as relates to 34-A, registration); Me.Rev.Stat.Ann. tit. any mechanism for public access without 1998) (providing (Supp. for fifteen re- relief from lifetime requirement; year prohi- violates the constitutional quirement may petition from relief against ex facto laws. bitions years sentenc- requirement after five conclusion, affirm we should for ing good court waive 2000) require- cause); application (Supp. MinmStat. 243.166 holding My limited provide proposed 11. would be 10. SDCL 22-22-31.2 does mecha- of- nism for a individual convicted of we specific facts of this case and should petition juvenile while the court for constitutionality fense express opinion no as to the “upon showing registry removal from application 22-22-40 of SDCL retroactive person adjudicated not been that the prior en- to the to other offenders convicted ten convicted of sex offense at least statute. actment date longer years a threat to and no constitutes reoffend.” ments to Meinders law enforcement However, appli- the retroactive

purposes. 22-22-40

cation of SDCL to Meinders as it

relates access unconstitutional. portion should hold that of SDCL

We unlimited providing ac- it applies cess is unconstitutional as -

these facts where the conviction is for

statutory rape arising dating out of rela- consent,

tionship, where there was al-

though illegal, giving rise crime a. likely repeated, opposed shown to be - punitive, child molestation because it is remedial, punishment and such is more

burdensome now than when the crime was Therefore,

committed. Meinders should registration require- released from the 22-22-30 through

ments of SDCL 22-22- 22-22-40, procedures

39 and SDCL unless

are instituted to limit access to registry pro-

Meinders’ information and

vide a mechanism for relief from the life- registration requirement.

time

[¶ We should reverse and remand

Issue 1. AMUNDSON, Justice, joins this

special writing. 5SD INTERNATIONAL, INC.,

BREVET Corporation,

a South Dakota Appellant,

Plaintiff

GREAT PLAINS COMPA LUGGAGE

NY, Corporation, a South Dakota

Christopher Crosby, D. GregW. Cow

ard, Krutsch, and Alan Defendants Appellees.

No. 20917.

Supreme Court of South Dakota.

Argued Dec. 1999.

Decided Jan.

Case Details

Case Name: Meinders v. Weber

Court Name: South Dakota Supreme Court

Date Published: Jan 5, 2000

Citation: 604 N.W.2d 248

Docket Number: None

Court Abbreviation: S.D.