                                                                      FILED
No. 16-0677- State v. J.E.                                       February 14, 2017
                                                                      released at 3:00 p.m.
No. 16-0723- State v. Z.M.                                          RORY L. PERRY, II CLERK

                                                                  SUPREME COURT OF APPEALS

                                                                       OF WEST VIRGINIA



LOUGHRY, Chief Justice, dissenting, in part, and concurring, in part:

              The clearly expressed intent of the Sex Offender Registration Act, West

Virginia Code § 15-12-1 to -10 (2014) (“Act”), is “to assist law-enforcement agencies’

efforts to protect the public from sex offenders by requiring sex offenders to register with the

State Police detachment in the county where he or she shall reside and by making certain

information about sex offenders available to the public as provided in this article.” W.Va.

Code § 15-12-1a(a), in part. Expounding further, the Legislature has declared that “there is

a compelling and necessary public interest that the public have information concerning

persons convicted of sexual offenses in order to allow members of the public to adequately

protect themselves and their children from these persons.” W.Va. Code § 15-12-1a(b).

Rather than act in furtherance of these extremely important public interests, the majority

answers the first certified question in the negative and finds the Act does not apply to

juvenile sex offenders. Resultantly, the circuit court cannot require the petitioners to register

as sexual offenders, which I believe it should be allowed to do. Regarding the majority’s

affirmative answer to the second certified question, I concur in its finding that the name and

identity of a juvenile who has committed the “violent or felonious” crimes of first or second

degree sexual assault may be made available to the public under the provisions of West




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Virginia Code § 49-5-101(g) (2015 & Supp. 2016). For these reasons, I dissent, in part, and

concur, in part.



              In the cases at bar, the petitioners were teenagers under the age of eighteen

when they committed their respective sex crimes. Their victims were two nine-year-old

children and an eighteen-month-old infant. The circuit court, who was familiar with the

petitioners, their offenses, and the results of their psychiatric evaluations, which revealed

very serious problems, wanted to order the petitioners to register as sex offenders as a part

of their final dispositions. Because the circuit court was uncertain of its authority to do so

under the Act, it certified the question to this Court, asking whether the Act extended to

juveniles.



              In answering this certified question, the majority has chosen to allow the

petitioners to evade the registration requirements of the Act because they were adjudicated

as juvenile delinquents rather than convicted as adults. Critically, are the “compelling and

necessary public interest” and the protections afforded to the public through the Act

diminished because the petitioners committed their sex offenses as teenagers?




                                              2

                The Act requires “[a]ny person who has been convicted”1 of committing or

attempting to commit one of the enumerated sexual offenses to register as a sexual offender.

Unlike the majority, I believe that the Legislature, by employing the words “any person,”

intended juvenile delinquents who have committed these sexual offenses to fall within the

Act’s reach. To conclude otherwise is simply nonsensical. To be clear, I recognize that

“‘[w]here the language of a statute is clear and without ambiguity the plain meaning is to be

accepted without resorting to the rules of interpretation.’ Syl. Pt. 2, State v. Elder, 152 W.Va.

571, 165 S.E.2d 108 (1968).” King v. West Virginia’s Choice, Inc., 234 W.Va. 440, 443, 766

S.E.2d 387, 390 (2014). Moreover, “‘“courts must presume that a legislature says in a statute

what it means and means in a statute what it says there.”’” King, 234 W.Va. at 444, 766

S.E.2d 391 (internal citations omitted).



                I absolutely agree that this Court should not act as a “superlegislature,” as the

majority cautions. I also recognize that we should not “substitute our policy judgments for

those of the Legislature whenever we deem a particular statute unwise.” Taylor-Hurley v.

Mingo Cty. Bd. of Educ., 209 W.Va. 780, 787, 551 S.E.2d 702, 709 (2001). Importantly,

however, this Court also has a duty “to avoid whenever possible a construction of a statute

which leads to absurd, inconsistent, unjust or unreasonable results.” State v. Kerns, 183

W.Va. 130, 135, 394 S.E.2d 532, 537 (1990). Indeed, the absurd results doctrine “permits


       1
           W.Va. Code § 15-12-2(b).

                                                3

a court to favor an otherwise reasonable construction of the statutory text over a more literal

interpretation where the latter would produce a result demonstrably at odds with any

conceivable legislative purpose.” Ringel-Williams v. West Virgina Consol. Pub. Ret. Bd.,

237 W.Va. 669, __, 790 S.E.2d 806, 809 n.10 (2016) (citing Taylor-Hurley, 209 W.Va. 780,

551 S.E.2d 702).



                I believe a more reasonable construction of the Act requires the registration of

“any person” who has committed one or more of the enumerated sexual offenses, including

persons who have been adjudicated as juvenile delinquents. Any other conclusion guts the

legislatively declared purposes of the Act, including “protect[ion] [of] the public from sex

offenders”2 and the “compelling and necessary public interest”3 that the public have

information concerning sexual offenders so as to permit the public to “adequately protect

themselves and their children from these persons.”4 Although I acknowledge the legal

distinctions between “adjudicate” and “convict,” such distinctions do not compel the decision

reached by the majority, nor do I believe the Legislature could have possibly intended such

an absurd result. Other courts agree.




       2
           W.Va. Code § 15-12-1a(a).
       3
           W.Va. Code § 15-12-1a(b).
       4
           W.Va. Code § 15-12-1a(b).

                                                4

              In In re Zachariah Mc., 780 N.E.2d 820 (Ill. App. Ct. 2002), a juvenile, who

had admitted that he committed the offense of aggravated sexual abuse as alleged in a

delinquency petition, sought to evade the requirements of the Illinois Sex Offender

Registration Act. Because the act was amended in 1999 to define a “juvenile sexual

offender,” Zachariah Mc. argued that the act at the time of his offense did not apply to

juvenile sex offenders. In analyzing the issue, the court quoted at length from In re Ben S.,

771 N.E.2d 1133 (Ill. App. Ct. 2002), as follows:

              “Before July 1, 1999, section 3 of the Act provided that ‘[a] sex
              offender * * * shall * * * register in person’ with a prescribed
              law enforcement official. 730 ILCS 150/3(a) (West 1998). The
              term ‘sex offender’ was defined in section 2 as, inter alia, ‘any
              person’ who is charged with, and convicted of, a sex offense.
              730 ILCS 150/2(A)(1)(a) (West 1998). Effective July 1, 1999,
              the legislature amended section 2 by adding the following
              definition:

                     ‘“Juvenile sex offender” means any person who is
                     adjudicated a juvenile delinquent as the result of
                     the commission of or attempt to commit a
                     violation set forth in item (B), (C), or (C-5) of this
                     [s]ection or a violation of any substantially similar
                     federal, sister state, or foreign country law. For
                     purposes of this [s]ection “convicted” shall have
                     the same meaning as “adjudicated”.’ 730 ILCS
                     150/2(A-5) (West 2000).

              The amendment did not change the definition of a ‘sex offender’
              or the requirement in section 3 that such offenders register under
              the Act.

Zachariah Mc., 780 N.E.2d at 821; see also In re Ben S., 771 N.E.2d at 1135 (observing that

definition of “‘sex offender’ is ‘any person’ who is charged with, and convicted of, a sex

                                               5

offense” and finding that “[t]he plain meaning of that language encompasses juveniles

without any need for the missing [1999] amendment[.]”). The court agreed with the analysis

in Ben S. and concluded that the “trial court did not err by denying [] motion for exemption

from the requirements of the Registration Act.” Id. at 822. Similarly, in the instant matters,

the reference to “any person” in the registration requirements under the Act should clearly

extend to juvenile sex offenders.



              It is important to remember that registration under the Act is not an additional

punishment. As the Legislature explained, the Act “is intended to be regulatory in nature and

not penal.” W.Va. Code § 15-12-1a(a); see also Hensler v. Cross, 210 W.Va. 530, 535, 558

S.E.2d 330, 335 (2001) (recognizing Sex Offender Registration Act as regulatory and one

that does not enhance or increase punishment). However, at present, an entire group of

sexual offenders–juvenile offenders–are eluding the Act’s regulatory requirements, and will

continue to do so under the majority’s decision herein. As a direct consequence, the public

policy concerns enunciated in the Act, including the protection of members of the public and

their children from sexual offenders, will continue to fall short of its full potential absent

legislative action. Accordingly, and in light of the majority’s ruling, I strongly urge the

Legislature to bring West Virginia into line with the overwhelming majority of states, which




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have registration requirements for juvenile sex offenders,5 by enacting legislation that

employs indisputable language requiring the registration of juvenile sex offenders.



              For these reasons, I respectfully dissent, in part, and concur, in part.




       5
        Research reveals that some states have mandatory registration requirements for
juveniles, while others give courts discretion to weigh various factors in determining whether
registration will be required. Further, some states requiring juvenile registration also allow
juveniles to petition for removal from the registry, such as where

              the underlying conviction involved an act of consensual sex
              during a so-called “Romeo and Juliet” relationship[] [and] . . .

                      (i) [t]he victim was 13 years of age or older but
                     less than 16 years of age at the time of the
                     offense[] [and]

                     (ii ) [t]he petitioner is not more than 4 years older
                     than the victim.

People v. Costner, 870 N.W.2d 582, 585 (Mich. Ct. App. 2015) (citing Mich. Comp. Laws
Ann. § 28.728c(14)).
.

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