Department of Public Safety & Correctional Services v. Doe , 439 Md. 201 ( 2014 )

Department of Public Safety and Correctional Services v. John Doe, Misc. No. 1, September
Term 2013, and Hershberger v. John Roe, No. 103, September Term 2013, Opinion by
Greene, J.
STATUTORY INTERPRETATION – SEX OFFENDER REGISTRATION AND
NOTIFICATION ACT (“SORNA”)
The federal Sex Offender Registration and Notification Act (“SORNA”), Pub. L. No. 109-
248, §§ 101-155, 120 Stat. 587, 590-611 (2006) (codified at 42 U.S.C. § 16901 et seq. and
18 U.S.C. § 2250) includes both directives to the states regarding the implementation of a sex
offender registration scheme and directives to individual sex offenders to register in the state
in which they reside, are employed, or are a student. Under Maryland law, the retroactive
application of Maryland’s sex offender registry is unconstitutional. Doe v. Department of
Public Safety & Correctional Services, 430 Md. 535, 62 A.3d 123 (2013). Where SORNA
includes a provision regarding the resolution of conflicts between the federal law and state
constitutions, an individual to whom the registration requirement would be applied
retroactively cannot be required to register involuntarily as a sex offender in Maryland.
Argued: May 6, 2014 IN THE COURT OF APPEALS
OF MARYLAND
Misc. No. 1 and No. 103
September Term, 2013
Circuit Court for Washington County DEPARTMENT OF PUBLIC SAFETY
Case No. 21-C-10-36507 AND CORRECTIONAL SERVICES
v.
JOHN DOE
Circuit Court for Wicomico County GREGG HERSHBERGER
Case No. 22-C-09-001573
v.
JOHN ROE
Barbera, C.J.
Harrell
Greene
Adkins
McDonald
*Watts
Wilner, Alan M. (Retired, Specially
Assigned),
JJ.
Opinion by Greene, J.
Harrell, J., concurs.
Filed: June 30, 2014
*Watts, J., participated in the hearing and
conference of this case but did not participate in
the decision and adoption of this opinion.
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, Maryland
Code (2001, 2008 Repl. Vol., 2013 Cum. Supp.), § 11-701 et seq. of the Criminal Procedure
Article (hereinafter all section references to the Criminal Procedure Article of the Maryland
Code are identified as “Crim. Proc. §”) and held that the retroactive application of the
provisions we deemed punitive violated the ex post facto prohibition contained in Article 17
of the Maryland Declaration of Rights. This Court’s plurality opinion in Doe I specifically
excluded any analysis of the federal Sex Offender Registration and Notification Act
(“SORNA”), Pub. L. No. 109-248, §§ 101-155, 120 Stat. 587, 590-611 (2006) (codified at
42 U.S.C. § 16901 et seq. and 18 U.S.C. § 2250). We stated, “[a]s [Doe’s] federal
obligations are not before us, we need not, and do not, address the issue of whether they
require him to independently register.” Doe I, 430 Md. at 544, 62 A.3d at 128.
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
1
We have consolidated two cases for the purpose of this opinion. By order dated
October 18, 2013, we accepted a certification from the Court of Special Appeals pursuant
to Maryland Rule 8-304 in Dep’t of Pub. Safety & Corr. Servs. v. Doe, Misc. No. 1,
September Term, 2013. We separately granted a petition for certiorari in Roe v. Maynard,
435 Md. 501, 79 A.3d 947 (2013), which was subsequently recaptioned Hershberger v. Roe
to substitute Secretary Gregg Hershberger as the named appellant in place of former
Secretary Gary D. Maynard. Each case was argued separately before this Court.
2
Although the named appellants in the instant cases are the Department of Public
Safety and Correctional Services (“DPSCS”), an agency of the State, and Gregg Hershberger,
as Secretary of DPSCS, the State of Maryland is actually bringing these appeals. Therefore,
we shall refer to the State as the collective appellant in this opinion.
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 granted permission to a third
individual to participate in this appeal as an amicus.3
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
3
Doe v. State, Court of Special Appeals No. 2394, September Term, 2011.
4
John Doe is a pseudonym used after Appellee successfully moved to have his name
stricken from the record.
2
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
3
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.)
Doe I, 430 Md. at 538-42, 62 A.3d at 126-27. We thereafter granted certiorari and, in a
plurality opinion, held that the retroactive application to Doe of Maryland’s sex offender
registration statute violated Article 17 of the Maryland Declaration of Rights. We stated that
“[p]ursuant to our determination that [Doe] may not be compelled to register, his name and
likeness shall be removed from the Maryland Sex Offender Registry.” Doe I, 430 Md. at
537, 62 A.3d at 124. We then directed the Circuit Court to enter a Declaratory Judgment
consistent with that opinion. Doe I, 430 Md. at 569, 62 A.3d at 143.
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:
4
“[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 Maryland Rule 8-
304, requesting that this Court make a determination on the applicability of the Doe I
decision to federal sex offender registration databases. We granted the certification, but
modified the question as follows:
Do circuit courts have the authority to order the State to remove sex offender
registration information from “federal databases”? 5
5
The certified question from the Court of Special Appeals was originally phrased as
follows:
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
(continued...)
5
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 Crim. Proc. § 11-707(a).
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 term that he
(...continued)
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 Rule 8-304(c), to
address directly the problem with the Circuit Court’s order as perceived by this Court.
6
John Roe is a pseudonym used after Appellee successfully moved to have his name
stricken from the record.
6
believed would expire after ten years. At the end of the ten year period, however, Roe was
advised that his name would not be removed from the registry because a 1999 amendment
to Maryland’s sex offender registration law extended the registration requirement from ten
years to life. Although Roe was told that this amendment applied to him, the sex offender
registration laws did not address retroactivity until the 2009 amendment. Nevertheless, Roe
continued to register.
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
7
At the time of Roe’s conviction, the sexual offender registration law was codified
in the Maryland Code (1957, 1996 Repl. Vol.), § 792 of Article 27.
7
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 requires a twenty-five year
registration period. The Circuit Court concluded that Roe was required to register, directed
Roe’s classification as a Tier II sex offender, and credited him for the time he was previously
listed on the sex offender registry.
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
8
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 but before any briefing or argument in that court, the State filed
a petition for certiorari to this Court, which we granted on November 22, 2013, to consider
the following question:8
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?
8
In its petition, the State also asked whether “Maryland’s sex-offender registration
requirements [are] punishment within the meaning of the ex post facto clauses of the
Constitutions of Maryland and the United States.” As we shall explain, we did not grant
certiorari with regard to this question and we will not address it. The issue on appeal is
limited to whether a circuit court has the authority to direct the State to remove sex offender
registration information, in light of relevant state and federal laws.
9
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 Minn. Stat. § 243.166 (2013). While in
Minnesota, Amicus complied fully with Minnesota’s registration requirements. In July 2011,
he was removed from the Minnesota registry because he had left Minnesota.
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
9
John Doe is a pseudonym used after Amicus successfully moved to have his name
stricken from the record. Because there are two individuals referred to as “John Doe” in this
opinion, for clarity we shall refer to this John Doe as “Amicus.”
10
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 on
appeal was not raised in or decided by the trial court below. See Md. Rule 8-131(a).
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
11
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,
12
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 that “the law of the case doctrine does not apply to this [C]ourt which
is required to review judgments of subordinate courts.” 296 Md. at 234, 462 A.2d at 61.
In addition, Rule 8-131(a) does not help Roe, because the record clearly demonstrates
that the State raised this question in its “Motion for Appropriate Relief” which was denied
by the Circuit Court when it entered judgment in favor of Roe, and as evidenced by the
docket entries. Moreover, the issue on which we granted certiorari in this case is specifically
raised, at least in part, by the language and scope of the Circuit Court’s August 6, 2013
Order. Accordingly, Roe’s motion to dismiss the appeal is hereby denied.
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
13
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 this Court. The State responds that Maryland Rule 8-131(b)(2)10 requires
consideration of both issues presented on appeal. Moreover, the State asserts that
reconsideration of Doe I is consistent with stare decisis because, as a plurality opinion, the
decision provides inadequate guidance to the lower courts. In other words, the State claims
that the fact that there is no single rationale that commanded a majority of the judges in Doe
I presents a compelling basis for us to reconsider our earlier opinion. We agree with Roe and
hereby grant the motion to strike.
It is well established that this Court has discretion to limit certiorari review. See Md.
Rule 8-303(f) (disposition of petition for certiorari); Jones v. State, 357 Md. 408, 419, 745
A.2d 396, 402 (2000) (“The certiorari process . . . allows this Court to select and review
cases that we deem to be ‘desirable and in the public interest.’ In exercising this broad
discretion, we limit the issues that we elect to review by denying petitions for certiorari in
whole or in part, so that we may deal directly with the issues selected.”) (citations and
quotations omitted); Dempsey v. State, 277 Md. 134, 143, 355 A.2d 455, 459 (1976))
10
Rule 8-131(b)(2) provides that “when the Court of Appeals issues a writ of
certiorari to review a case pending in the Court of Special Appeals before a decision has been
rendered by that Court, the Court of Appeals will consider those issues that would have been
cognizable by the Court of Special Appeals.”
14
(“Where this Court’s order granting certiorari limits the issues to be considered, no additional
questions will ordinarily be dealt with even if such additional questions were raised in the
petition or in a cross-petition.”); Walston v. Sun Cab Co., 267 Md. 559, 569, 298 A.2d 391,
397 (1973) (“In sum, except in most extraordinary circumstances, we will consider on an
appeal resulting from a grant of a writ of certiorari only those questions raised in the petition
and matters relevant to those questions, . . . unless, of course, we have limited in our order
granting certiorari the issues to be considered on that appeal.”). Our order granting the
petition for certiorari in the instant case expressly stated that the petition be “granted, limited
to the following issue: ‘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?’” Accordingly, our review is confined to this question. Had we
considered the State’s other question, we would have rejected it on the basis of stare decisis.
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,
15
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, __ Md. __ (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 cannot be compelled to remove Appellees’ information
from the registry because to do so would put Appellees in violation of their federal
obligations. In addition, the State asserts that the Circuit Court’s order requiring removal of
these offenders from Maryland’s registry threatens Maryland’s ability to receive federal
funding through compliance with SORNA.
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
16
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 18 U.S.C. § 2250, these facts do not affect our analysis of this
case.
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
17
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
11
Amicus characterizes the State’s argument as “one of backdoor preemption,” in that
the State would use the federal law to effectively override this Court’s decision in Doe I. We
do not disagree with this characterization. Although we need not engage in any
constitutional preemption analysis, we note that the federal statute itself does not purport to
“preempt the field” of sex offender registration, and in fact, 42 U.S.C. § 16925(d)
specifically provides that “[t]he provisions of this subchapter that are cast as directions to
jurisdictions or their officials constitute, in relation to States, only conditions required to
avoid the reduction of Federal funding under this section.” Additionally, the regulations
promulgated by the United States Attorney General further explain that SORNA has no
implicit preemptive effect either, because the Act “obviously leaves room for states (and
other jurisdictions) to supplement its requirements” and “[s]ome provisions in SORNA
expressly authorize variations among jurisdictions[,]” citing SORNA § 125(b), 42 U.S.C. §
16925(b), and explaining that it “authoriz[es] accommodation of state constitutional
restrictions.” Office of the Attorney General, The National Guidelines for Sex Offender
Registration and Notification (“National Guidelines”), 73 Fed. Reg. 38,030, 38,034-35 (July
2, 2008).
18
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 non-
constitutional ground.”) (citations and quotations omitted). Rather, our analysis of this case
depends solely on statutory interpretation.
We 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
“establish[ing] a comprehensive national system for the registration of those offenders[.]”
42 U.S.C. § 16901. The Act replaced several earlier registration laws,12 and, as noted by the
12
See Jacob Wetterling Crimes Against Children and Sexually Violent Offender
Registration Program, Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C.
§ 14071 et seq. As explained in the Attorney General’s guidelines, “[s]ince the enactment
of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration
Act (42 U.S.C. § 14071) in 1994, there have been national standards for sex offender
registration and notification in the United States. All states currently have sex offender
registration and notification programs and have endeavored to implement the Wetterling Act
standards in their existing programs.” National Guidelines, 73 Fed. Reg. at 38,030.
19
Supreme Court, “reflects Congress’s awareness that pre-Act registration law consisted of a
patchwork of federal and 50 state registration systems.” Reynolds v. United States, 132 S.
Ct. 975, 978 (2012). Thus, the goal of the Act was to streamline and homogenize sex
offender registration and notification systems throughout the states. See Office of the
Attorney General, The National Guidelines for Sex Offender Registration and Notification
(“National Guidelines”), 73 Fed. Reg. 38,030 (July 2, 2008) (“The SORNA reforms are
generally designed to strengthen and increase the effectiveness of sex offender registration
and notification for the protection of the public, and to eliminate potential gaps and loopholes
under the pre-existing standards . . . .”).
The Act sets forth “minimum national standards” for jurisdictions’ sex offender
registration and notification programs. 42 U.S.C. § 16912 (“Registry requirements for
jurisdictions”); National Guidelines, 73 Fed. Reg. at 38,032. One such standard is the
application of the registration requirements to pre-Act offenders, i.e. retroactivity. See 42
U.S.C. § 16911(1) (defining “sex offender” as “an individual who was convicted of a sex
offense”); Reynolds, 132 S. Ct. at 978 (“The Act defines the term ‘sex offender’ as including
these pre-Act offenders.”). Although framed as requirements, the statute makes clear that
“[t]he provisions of this subchapter that are cast as directions to jurisdictions or their officials
constitute, in relation to States, only conditions required to avoid the reduction in Federal
funding under this section.” 42 U.S.C. § 16925(d).
Maryland implemented SORNA through amendments in 2009 and 2010 to its
20
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 Crim. Proc. § 11-702.1 (2001, 2008 Repl. Vol., 2009 Cum. Supp.).
The 2010 amendments established a “tier” system of offenders13 based upon the nature of the
offender’s conviction, which corresponds to the “tiers” defined in SORNA. See Crim. Proc.
§ 11-701(l) (2001, 2008 Repl. Vol., 2013 Cum. Supp.). See also 42 U.S.C. § 16911.
On July 19, 2011, the United States Department of Justice’s SMART Office 14
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 M aryland – Revised (July 19, 2011),
13
Tier III is the most severe designation, requiring registration every three months for
life, whereas Tier II offenders must register every six months for 25 years, and Tier I
offenders must register every six months for 15 years. See Crim. Proc. § 11-707(a) (2001,
2008 Repl. Vol., 2013 Cum. Supp.). See also 42 U.S.C. § 16915(a).
14
The Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering,
and Tracking (SMART), within the U.S. Department of Justice, was established by SORNA
to administer the programs created under SORNA and to provide guidance to jurisdictions
regarding implementation of sex offender registration and notification programs. See 42
U.S.C. § 16945.
21
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.” 42 U.S.C. § 16913.
Specifically, the statute provides that “[a] sex offender shall register, and keep the
registration current, in each jurisdiction where the offender resides, where the offender is an
employee, and where the offender is a student.” 42 U.S.C. § 16913(a). In addition, SORNA
§ 141(a), 18 U.S.C. § 2250(a), imposes criminal penalties for failing to register on:
[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].
22
18 U.S.C. § 2250(a).
The State refers to 42 U.S.C. § 16911 as providing an “independent federal
registration obligation” imposed directly on sex offenders. This obligation, the State argues,
is both “separate and distinct from a state’s own sex offender registration requirements” and
“completely separate from those provisions of SORNA that address the states’ compliance
with SORNA’s requirements.” Therefore, in the State’s view, Appellees must register as sex
offenders in Maryland as a matter of federal law, notwithstanding this Court’s holding in Doe
I. In other words, the State asserts, the courts cannot force the State to remove sex offender
registration information because the individual sex offenders have an independent obligation
under federal law to register with the state in which they reside, work, or attend school.
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 August 2006,15 but did not register
15
SORNA was enacted on July 27, 2006, prior to Gould’s move to Maryland. Gould,
568 F.3d at 461.
23
as a sex offender in Maryland. Gould, 568 F.3d at 462. Approximately one year later, Gould
was charged with and convicted of failing to register under 18 U.S.C. § 2250(a) in the United
States District Court for the District of Maryland. Id. Gould appealed his conviction,
arguing that he could not be convicted under SORNA for failing to register as a sex offender
in Maryland because Maryland had not yet implemented SORNA. Id.
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
24
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 requirement, Kennedy reported to
the Wicomico County Sheriff’s Office to register as a sex offender at the beginning of his
parole term, as directed by his U.S. Probation Officer, Michael Allera. Id. Officer Allera
withdrew his instruction to Kennedy, however, when the Sheriff’s Office refused to accept
Kennedy’s registration because it was not required under Maryland law. Kennedy, 612 F.3d
at 263-64. Then in 2004, the Parole Commission modified Kennedy’s parole conditions,
which Kennedy challenged by filing a petition for habeus corpus in the United States District
Court for the District of Maryland. After SORNA was enacted but while the petition was
still pending, Officer Allera again officially instructed Kennedy to register as a sex offender
pursuant to SORNA. Kennedy supplemented his petition, challenging the registration
requirement, and filed a motion for a temporary restraining order and preliminary injunction
to enjoin Officer Allera from requiring him to register. Kennedy, 612 F.3d at 264. The
district court denied both the petition and the motion for an injunction. Kennedy, 612 F.3d
at 265.
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
25
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 decisions in accord with the Fourth Circuit,16 is the
distinguishing fact that in those federal cases, the purported obstacle to registration was that
Maryland had not yet implemented SORNA. By contrast, here Appellees’ asserted stumbling
block is that this Court has declared the retroactive application of Maryland’s sex offender
registry to be unconstitutional under the Maryland Declaration of Rights. Keeping in mind
the rules of statutory construction and the canon against surplusage,” we return to the
language of the federal statute for guidance. See Marx v. Gen. Revenue Corp., 133 S. Ct.
1166, 1178, 185 L. Ed. 2d 242, 256 (2013) (“The canon against surplusage is strongest when
an interpretation would render superfluous another part of the same statutory scheme.”);
Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S. Ct.
1291, 1301, 146 L. Ed. 2d 121, 134 (2000) (“It is a fundamental canon of statutory
16
See United States v. Brown, 586 F.3d 1342, 1349 (11th Cir. 2009); United States
v. Guzman, 591 F.3d 83, 93 (2d Cir. 2010); United States v. George, 625 F.3d 1124, 1128
(9th Cir. 2010); United States v. Felts, 674 F.3d 599, 602 (6th Cir. 2012).
26
construction that the words of a statute must be read in their context and with a view to their
place in the overall statutory scheme. A court must therefore interpret the statute as a
symmetrical and coherent regulatory scheme, and fit, if possible, all parts into an harmonious
whole.”) (citations and quotations omitted); Addison v. Lochearn Nursing Home, LLC, 411
Md. 251, 275, 983 A.2d 138, 153 (2009) (We begin our analysis by first looking to the
normal, plain meaning of the language of the statute, reading the statute as a whole to ensure
that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or
nugatory.”) (citations and quotations omitted).
We do not dispute that by its plain meaning, 42 U.S.C. § 16913 provides an
“independent duty as a sex offender to register under SORNA,” Kennedy, 612 F.3d at 267-
68, that is “independent of the requirement imposed on the States to implement the enhanced
registration and notification standards of SORNA” contained in 42 U.S.C. § 16912. Gould,
568 F.3d at 465. Our analysis cannot end there, however. As we have oft repeated, in
interpreting statutes, we
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)).
27
SORNA § 125(b), 42 U.S.C. § 16925(b), expressly addresses the possibility of a
conflict between SORNA’s provisions and a state constitution, “as determined by a “ruling
of the jurisdiction’s highest court.” This provision not only recognizes the possibility of
unconstitutionality but also provides directions for the jurisdiction and the United States
Attorney General to collaborate to find “reasonable alternative procedures or
accommodations” consistent with the purpose of SORNA, should this situation arise. This
section reads:
(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.
28
42 U.S.C. § 16925(b). Additionally, pursuant to its authorization under SORNA, the United
States Attorney General has expounded upon this section and provided further guidance to
jurisdictions faced with this scenario. See 42 U.S.C. § 16912(b). The Attorney General’s
National Guidelines provide:
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), 42 U.S.C. § 16925(b), with the help
of the Attorney General’s guidelines relating thereto, clearly demonstrates Congress’s
contemplation of the precise situation confronting us in this case. Further, the language of
the statute stating that the jurisdiction shall work with the Attorney General to implement
“alternative procedures” to accomplish SORNA’s goals indicates that deference shall be
given to the determination of unconstitutionality under state law. This Court, the highest
court of the State of Maryland, has declared that a portion of Maryland’s legislation
implementing SORNA’s “minimum national standards” violates the Maryland Declaration
of Rights. To arrive at the State’s proposed interpretation of the statute–that Appellees must
register in Maryland even if doing so violates their rights under Maryland’s
29
constitution–would render SORNA § 125, 42 U.S.C. § 16925, useless surplusage.
Accordingly, we conclude that, notwithstanding any requirements imposed upon sex
offenders by SORNA, where we have declared the retroactive application of Maryland’s sex
offender registry to be unconstitutional, the State must remove Appellees’ information from
the registry. In our view, SORNA specifically provides for this situation, and given our
holding in Doe I, it is now left to the State to establish reasonable alternative procedures, if
any, that are both “consistent with the purposes of SORNA” and permissible under the
Maryland Declaration of Rights.
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 lives, works, or attends school refuses
to register him because the jurisdiction’s laws do not require registration for the offense of
conviction.” Id. at 6 n.39. The Fourth Circuit also apparently noted this distinction in
30
Kennedy, where the court stated that “while SORNA imposes a duty on the sex offender to
register, it nowhere imposes a requirement on the State to accept such registration.” 612 F.3d
at 269 (emphasis in original).
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
17
We note that this would not necessarily be a first for the State. In Kennedy, albeit
prior to the enactment of SORNA or Maryland’s implementation thereof, the Wicomico
County Sheriff’s Office rejected Kennedy’s registration because it “conclud[ed] that
Kennedy was not required to register under Maryland law.” Kennedy, 612 F.3d at 263-64.
The Fourth Circuit went on to note, in rejecting Kennedy’s argument that the order of the
Parole Commissioner requiring him to register in Maryland violated the 10th Amendment, the
order does not “undertake[] to obligate the State of Maryland or the Sheriff of Wicomico
County to accept his registration. To the contrary, the condition commands only Kennedy,
directing him to report to the Sheriff’s Office and register.” Kennedy, 612 F.3d at 269. We
also note that, unlike Gould and Kennedy, none of the Appellees have been charged with
failing to register, either under state or federal law.
31
that the retroactive application of state’s sex offender registration law violated ex post facto
prohibition in state constitution); State v. Williams, 952 N.E.2d 1108, 1113 (Ohio 2011);
Wallace v. State, 905 N.E.2d 371 (Ind. 2009) (same); State v. Letalien, 985 A.2d 4 (Me.
2009) (same); Doe v. State, 189 P.3d 999 (Alaska 2008) (same); Doe v. Phillips, 194 S.W.3d
833 (Mo. 2006) (holding that Missouri’s sex offender registration law violated the state
constitutional ban on laws retrospective in operation). To date, only two of these states have
addressed the next level inquiry, i.e., a conflict between SORNA’s requirements and the state
constitution. They are divided as to how to manage those individuals to whom the retroactive
application of the state statute(s) is unconstitutional.
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)
32
(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 42 U.S.C. § 16925(b) and concluding that it
“provides no relief to [the appellant in that case] because Missouri may require him to
register under SORNA without violating its own constitution”).
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 statute was unconstitutional as applied retroactively to Mr. Wallace.
Subsequently, the Court of Appeals of Indiana in Andrews v. State, 978 N.E.2d 494 (Ind. Ct.
App. 2012), transfer denied, 985 N.E.2d 339 (Ind. 2013) addressed whether a “federal duty”
to register would require the defendant to register as a sex offender notwithstanding the
Indiana Supreme Court’s decision in Wallace. Stating that the Indiana Supreme Court
“concluded in Wallace that Hoosiers are entitled to greater protection under the prohibition
on ex post facto laws contained in the Indiana Constitution,” the court held that Andrews
could not be required to register as a sex offender in Indiana. Andrews, 978 N.E.2d at 502-
03. In so holding, the court also noted that Congress “[a]cknowledge[ed] that some
provisions of [the federal SORNA] may not pass state constitutional muster” by enacting 42
U.S.C. § 16925, and that “[t]he U.S. Department of Justice recognizes that sex offender
registration is conducted at the state level and that each jurisdiction has the authority to
determine which offenders will be required to register.” Andrews, 978 N.E.2d at 502 n.7-8.
33
Accordingly, in Andrews, as well as in a second case, State v. Hough, 978 N.E.2d 505 (Ind.
Ct. App. 2012), the Court of Appeals of Indiana directed the lower courts to grant the
defendant’s “petition for removal of his name from Indiana’s sex offender registry.”
Andrews, 978 N.E.2d at 503;18 Hough, 978 N.E.2d at 510-11.
We agree with the reasoning of the Court of Appeals of Indiana. Based on our
holding in Doe I, Marylanders, like Hoosiers, enjoy “greater protection under the prohibition
on ex post facto laws” of the Maryland Declaration of Rights. Andrews, 978 N.E.2d at 502.
Where Appellees would only be required to register in Maryland, and where we have held
that the retroactive application of the Maryland registry is unconstitutional, they, and
individuals similarly situated in Maryland, cannot be required to register in Maryland. The
language of SORNA expressly providing for a conflict between the federal law and state
constitutions, as well as the available federal guidance on the topic, leads us to the conclusion
18
As a collateral matter, we note that the Court of Appeals of Indiana indicated that
Andrews may have a separate obligation to register pursuant to the federal statute when he
engages in interstate travel. Andrews, 978 N.E.2d at 502. The court emphasized the fact that
“Indiana [was] the only state that [had] ever required Andrews to register as a sex offender
. . . . But while Andrews may have a federal duty to register under [the federal SORNA] if
he engages in interstate travel, and could be subject to prosecution in federal district court
under 18 U.S.C. § 2250, if he fails to do so, [that was] not the issue before [the court].”
Andrews, 978 N.E.2d at 502. Likewise, Appellees in this case have not been charged with
failure to register under either Maryland or federal law. Although this issue is not before us,
we note that the Supreme Court has observed that “as far as we can tell, while SORNA
punishes violations of its requirements (instead of violations of state law), the Federal
Government has prosecuted a sex offender for violating SORNA only when that offender
also violated state-registration requirements.” United States v. Kebodeaux, 133 S. Ct. 2496,
2505 (2013). Our conclusion in this case is limited to the registration obligations of
individuals residing, working, or attending school in Maryland.
34
that so long as Appellees are in Maryland, they cannot be required to register as sex offenders
in Maryland, notwithstanding the registration requirements imposed directly on individuals
by SORNA.
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 enforcement internal database. According
to the FBI’s website, “NCIC has operated under a shared management concept between the
FBI and federal, state, local, and tribal criminal justice users since its inception.” See Federal
Bureau of Investigation, National Crime Information Center,
http://www.fbi.gov/about-us/cjis/ncic/ncic (last visited June 20, 2014). Further, the FBI
35
describes the function of the NCIC as follows:
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 databases are all managed by federal agencies; however,
the information contained in each is provided by the State. Therefore, in the context of sex
36
offender registration databases, the only relevant database is the Maryland registry.19 More
importantly, the State is responsible for the accuracy, updating, and removal of this
information. See Crim. Proc. § 11-713; Md. Code Regs. 12.06.01.08 (2010).
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 Md. Code Regs. 12.06.01.01-.18. Part of the Unit’s
responsibility is to exchange information, including registration status, with federal agencies.
See Md. Code Regs. 12.06.01.08. The combination of the nature of “federal databases” plus
the regulations governing the maintenance of sex offender registration leads us to the
conclusion that if the State removes “any and all information regarding Doe from the
Maryland Sex Offender Registry,” that information would be automatically removed from
any other “databases” where that information can be stored or accessed. Moreover, although
the State cannot directly remove information from “federal databases,” the State is
responsible for notifying all relevant federal agencies when registration information is
removed from Maryland’s registry. See id.
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
19
All parties agree that the only relevant database is the one the State maintains.
37
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 registry. On remand, therefore, the Court of
Special Appeals should modify the Circuit Court’s order and direct the State to: “Remove
any and all information regarding Doe from the Maryland Sex Offender Registry website and
any additional database(s) where the State has published such information, and notify all
relevant federal agencies of the removal of Doe’s information from Maryland’s registry.” 20
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.
20
Maryland may be inclined to follow, as an example, the steps taken by Indiana to
inform sex offenders of their rights and obligations through the State’s sex offender
registration website. See Indiana Dep’t of Correction, Sex & Violent Offender Registry,
http://www.in.gov/idoc/3285.htm (last visited June 11, 2014).
38
Argued: 6 May 2014 IN THE COURT OF APPEALS
OF MARYLAND
Circuit Court for Washington County
Case No. 21-C-10-36507 Misc. No. 1
September Term, 2013
DEPARTMENT OF PUBLIC SAFETY
AND CORRECTIONAL SERVICES
v.
JOHN DOE
Circuit Court for Wicomico
No. 103
County
September Term, 2013
GREGG HERSHBERGER
v.
.
JOHN ROE
Barbera, C.J.,
Harrell,
Greene,
Adkins,
McDonald,
*Watts,
Wilner, Alan M. (Retired,
Specially assigned),
JJ.
Concurring Opinion by Harrell, J.
______________________________________
Filed: June 30, 2014
*Watts, J., participated in the hearing and
conference of this case but did not
participate in the decision and adoption
of this opinion.
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.