    Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
    Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
    303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
    corrections@akcourts.us.



             THE SUPREME COURT OF THE STATE OF ALASKA

STATE OF ALASKA,
             )
DEPARTMENT OF PUBLIC SAFETY,
 )                       Supreme Court Nos. S-15821/16403
                              )                       (Consolidated)
          Appellant,          )
                              )                       Superior Court No. 3AN-14-08325 CI
     v.                       )
                              )                       OPINION
JOHN DOE I,                   )
                              )                       No. 7270 – August 10, 2018
          Appellee.           )
                              )
                              )
JOHN DOE II,                  )
                              )                       Superior Court No. 3AN-15-04577 CI
          Appellant,          )
                              )
     v.                       )
                              )
STATE OF ALASKA,              )
DEPARTMENT OF PUBLIC SAFETY )
                              )
          Appellee.           )
                              )

            Appeal in File No. S-15821 from the Superior Court of the
            State of Alaska, Third Judicial District, Anchorage, Catherine
            M. Easter, Judge.

            Appeal in File No. S-16403 from the Superior Court of the
            State of Alaska, Third Judicial District, Anchorage, Erin B.
            Marston, Judge.
             Appearances in File No. S-15821: John J. Novak, Assistant
             Attorney General, Criminal Division Central Office,
             Anchorage, and Craig W. Richards, Attorney General,
             Juneau, for Appellant State of Alaska, Department of Public
             Safety. John Doe I, pro se, Pacific, Washington, Appellee.

             Appearances in File No. S-16403: Darryl L. Thompson,
             Darryl L. Thompson, P.C., Anchorage, for Appellant John
             Doe II. John J. Novak, Assistant Attorney General, Criminal
             Division Central Office, Anchorage, and Jahna Lindemuth,
             Attorney General, Juneau, for Appellee State of Alaska,
             Department of Public Safety.

             File No. S-15821 before: Stowers, Chief Justice, Fabe,
             Maassen, and Bolger, Justices. [Winfree, Justice, not
             participating]

             File No. S-16403 before: Stowers, Chief Justice, Maassen,
             Bolger, and Carney, Justices, and Matthews, Senior Justice.*
             [Winfree, Justice, not participating]

             PER CURIAM.

             STOWERS, Chief Justice, concurring.

             FABE, Justice, concurring in File No. S-15821.

             MATTHEWS, Senior Justice, concurring in File No. S-16403.


I.    INTRODUCTION
             John Doe I and John Doe II are two separate individuals being required by
the Department of Public Safety (DPS) to register as sex offenders in Alaska based on
their out-of-state convictions. DPS argues that Doe I’s Washington convictions and
Doe II’s California conviction are “similar” to the Alaska offense of attempted sexual
abuse of a minor under AS 11.31.100 and AS 11.41.436(a)(2), making both Doe I and



      *
             Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).

                                         -2-                                     7270
Doe II subject to Alaska’s sex offender registration requirement. One superior court
judge determined that Doe I is not required to register; another superior court judge
determined that Doe II is required to register. The cases have been consolidated on
appeal. We conclude that neither the Washington nor the California laws under which
Doe I and Doe II were convicted are similar to the relevant Alaska law and therefore hold
that neither Doe I nor Doe II is required to register under Alaska law.
II.   FACTS AND PROCEEDINGS
      A.     DPS v. Doe I, S-15821
             In June 2011, at the age of 51, John Doe I pleaded guilty to two counts of
“communicating with a minor for immoral purposes” in violation of the Revised Code of
Washington (RCW) 9.68A.090; violation of this statute is a gross misdemeanor. In his
guilty plea, Doe I admitted that “between October 1, 2009 and October 31, 2009, on two
separate occasions, [he] communicated with [an 11-year-old] . . . for an immoral purpose
of a sexual nature.” The Washington superior court sentenced Doe I to two consecutive
twelve-month sentences and suspended the sentences, ordering three months of
confinement for each count and four years of probation. The court ordered him to obtain
a sexual deviancy evaluation, to have no contact with the victim and “no unsupervised
contact with minors,” and to register as a sex offender.1
             In April 2014 Doe I formally petitioned the Alaska DPS Sex Offender
Registry for a determination whether he would be required to register as a sex offender



      1
              Doe I was required to register as a sex offender in his county of residence
in Washington for a period of ten years. Doe v. State, 352 P.3d 500, 502 (Idaho 2015).
Because RCW 9.68A.090 is a misdemeanor, under Washington law his registration
information was to be “used only for law enforcement purposes” and was not available
“on the publicly accessible Washington sex offender website.” Id. Doe I acknowledged
during oral argument before our court that Doe v. State, decided by the Idaho Supreme
Court in June 2015, “is [his] case as well.”

                                           -3-                                      7270

in Alaska. He represented that he had an upcoming work project in Alaska that was
unlikely to require more than 30 days in the state but that he also had other work
prospects in Alaska as well as family that he would like to visit. He indicated that
“[p]rior to spending more time in Alaska, [he] wish[ed] to understand if [his] presence
[would] trigger a registration requirement.” In June 2014 DPS informed Doe I that,
because of his two convictions in Washington, he must “register [as a sex offender]
quarterly, for life, while . . . work[ing] or liv[ing] in Alaska.”
              Doe I subsequently filed a complaint in the Alaska Superior Court for
declaratory judgment and injunctive relief, asking for a declaration that his conviction
under RCW 9.68A.090 “is not ‘similar’ to an Alaska sex offense as defined by
AS 12.63.100” and that he was therefore not required to register as a sex offender in
Alaska. The superior court heard oral argument and issued an order ruling that Doe I was
not required to register. DPS appeals.
       B.     Doe II v. DPS, S-16403
              In October 2014 John Doe II was convicted of violating California Penal
Code 647.6(a), “[a]nnoying or molesting child under 18.” After pleading no contest, he
was sentenced to two years of probation; upon successfully completing probation, he
would be permitted to “apply to the Court to have [his] conviction set aside pursuant to
Section 1203.4 of the Penal Code.” He was required to register as a sex offender if he
resided in California.
              Doe II moved to Alaska prior to sentencing and did not register as a sex
offender. In December 2014, upon determining that his California conviction was similar
to the Alaska offense of attempted sexual abuse of a minor in AS 11.41.436(a)(2), DPS
informed him that he was required to register in Alaska. He argued through a letter from
his attorney to DPS that he was not a sex offender as defined in AS 12.63.100(5). DPS
treated the letter as an administrative appeal and sent him a letter affirming its

                                             -4-                                   7270

determination that he must register as a sex offender in Alaska annually for 15 years
based on his California conviction.
              Doe II appealed to the superior court and the court granted him a limited
stay of the DPS decision. The stay required him to register but enjoined DPS from
publically disseminating any identifying information about him on the sex offender
website. Oral argument was held and a written decision was issued affirming DPS’s
decision. Doe II appeals.
III.   STANDARD OF REVIEW
              “Where the superior court acts as an appellate court reviewing a decision
by an administrative agency, we independently review the underlying administrative
decision.”2 DPS argues that its agency decision involves agency expertise and is thus
subject to the “reasonable basis” test,3 because DPS “has been responsible for interpreting
and administering the Alaska Sex Offender Registration Act (‘ASORA’) ever since it
came into effect in 1994.” However, “where the agency’s expertise provides little
guidance to the court or where the case concerns statutory interpretation or other analysis
of legal relationships about which courts have specialized knowledge and expertise,” the
substitution of judgment standard applies.4 The question whether a law of another



       2
            State, Dep’t of Nat. Res. v. Alaska Riverways, Inc., 232 P.3d 1203, 1207
(Alaska 2010).
       3
              Id.
       4
             Grimmett v. Univ. of Alaska, 303 P.3d 482, 487 (Alaska 2013) (quoting
N. Alaska Envtl. Ctr. v. State, Dep’t of Nat. Res., 2 P.3d 629, 633 (Alaska 2000)); see also
Konecky v. Camco Wireline, Inc., 920 P.2d 277, 280 n.8 (“[W]hen the ‘issue to be
resolved turns on statutory interpretation rather than formulation of fundamental policy
involving particularized expertise of administrative personnel, . . . we shall independently
consider the meaning of the statute.’ ” (second alteration in original) (quoting Hood v.
State, Workmen’s Comp. Bd., 574 P.2d 811, 813 (Alaska 1978))).

                                            -5-                                       7270

jurisdiction is “similar” to a specified Alaska statute is a question of statutory
interpretation and is thus “within the scope of the court’s special competency”5 and “is
a question of law to which we apply our independent judgment.”6 “We interpret statutes
‘according to reason, practicality, and common sense, considering the meaning of the
statute’s language, its legislative history, and its purpose.’ ”7 Questions of statutory
interpretation are decided on a sliding scale, which means that “the plainer the language
of the statute, the more convincing any contrary legislative history must be.”8
IV.   DISCUSSION
      A.     “Similar Law Of Another Jurisdiction”
             When interpreting a statute, “we begin with the plain meaning of the
statutory text.”9 ASORA requires 15 years of registration for individuals convicted of a
single non-aggravated sex offense, and lifetime registration for individuals convicted of
two or more sex offenses or a single aggravated offense.10              Alaska Statute
12.63.100(6)(C) defines “sex offense” as “a crime, or an attempt, solicitation, or


      5
               Union Oil Co. of Cal. v. Dep’t of Revenue, 560 P.2d 21, 23 (Alaska 1977)
(citing State v. Aleut Corp., 541 P.2d 730, 736-37 (Alaska 1975)).
      6
             Hendricks-Pearce v. State, Dep’t of Corr., 323 P.3d 30, 35 (Alaska 2014)
(citing Native Vill. of Tununak v. State, Dep’t of Health & Soc. Servs., Office of
Children’s Servs., 303 P.3d 431, 440 (Alaska 2013)).
      7
             Attorneys Liab. Prot. Soc’y, Inc. v. Ingaldson Fitzgerald, P.C., 370 P.3d
1101, 1105 (Alaska 2016) (quoting Municipality of Anchorage v. Stenseth, 361 P.3d 898,
904 (Alaska 2015)).
      8
             City of Valdez v. State, 372 P.3d 240, 248 (Alaska 2016) (quoting Peninsula
Mktg. Ass’n v. State, 817 P.2d 917, 922 (Alaska 1991)).
      9
             Hendricks-Pearce, 323 P.3d at 35 (citing Ward v. State, Dep’t of Pub.
Safety, 288 P.3d 94, 98 (Alaska 2012)).
      10
             AS 12.63.020(a).

                                           -6-                                      7270

conspiracy to commit a crime, under [one of the listed statutes] or a similar law of
another jurisdiction.” (Emphasis added.) Because “similar” modifies “law of another
jurisdiction,” based on the plain language of the statute, it is the law that must be similar.
We therefore “employ a categorical approach by looking to the statute . . . of conviction,
rather than to the specific facts underlying the crime” to determine whether that statute
is similar to one of the pertinent Alaska sex offenses under AS 12.63.100(6)(C).11
              Under the categorical approach, we compare the elements of the statute of
conviction to the elements of the allegedly similar Alaska statute.12 As in the presumptive
sentencing context, if the out-of-state statute is “more restrictive than the Alaska statute”
in such a way that “any offender who could be convicted under the [out-of-state] law
would be subject to conviction under the elements of the Alaska statute,” the elements are
“similar.”13 However, “[e]ven if there might be conduct that would be penalized by the
[out-of-state] statute, but not Alaska’s, that does not prevent a conclusion that the
elements . . . are similar.”14



       11
               See Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1568 (2017) (alteration
in original) (quoting Kawashima v. Holder, 565 U.S. 478, 483 (2012)).
       12
              See Borja v. State, 886 P.2d 1311, 1313 (Alaska App. 1994).
       13
               State v. Delagarza, 8 P.3d 362, 366 (Alaska App. 2000) (quoting Martin v.
State, 704 P.2d 1341, 1342 (Alaska App. 1985)); cf. Esquivel-Quintana, 137 S. Ct. at
1568 (“Under [the categorical] approach, we ask whether ‘ “the state statute defining the
crime of conviction” categorically fits within the “generic” federal definition of a
corresponding aggravated felony.’ In other words, we presume that the state conviction
‘rested upon . . . the least of th[e] acts’ criminalized by the statute, and then we determine
whether that conduct would fall within the federal definition of the crime.” (second and
third alterations in original) (citation omitted) (first quoting Moncrieffe v. Holder, 569
U.S. 184, 190 (2013); then quoting Johnson v. United States, 559 U.S. 133, 137 (2010))).
       14
              Delagarza, 8 P.3d at 367.

                                             -7-                                        7270

              In addition to considering the meaning of the language of a statute, we also
consider its legislative history and purpose.15 DPS argues that the legislative history and
purpose of ASORA support “an evaluation of the full picture — the elements of the
offense as well as the facts of the actually engaged in conduct — so as to be able to make
fully informed registration requirement decisions, rather than decisions restricted to only
comparing elements.”
              The legislature made the following legislative findings when enacting
ASORA:
                     (1) sex offenders pose a high risk of reoffending after
              release from custody;
                    (2) protecting the public from sex offenders is a
              primary governmental interest;
                     (3) the privacy interests of persons convicted of sex
              offenses are less important than the government’s interest in
              public safety; and
                     (4) the release of certain information about sex
              offenders to public agencies and the general public will assist
              in protecting the public safety.[16]
              Although the approach argued for by DPS might be consistent with these
legislative findings, the strict categorical approach also serves a protective purpose and
is not contrary to the legislative findings. We disagree with DPS’s approach. We
conclude that the plain meaning of the statute is not overcome by contrary legislative
history.


       15
             Attorneys Liab. Prot. Soc’y, Inc. v. Ingaldson Fitzgerald, P.C., 370 P.3d
1101, 1105 (Alaska 2016) (quoting Municipality of Anchorage v. Stenseth, 361 P.3d 898,
904 (Alaska 2015)).
       16
              Doe v. State, 189 P.3d 999, 1015-16 (Alaska 2008) (quoting Ch. 41, § 1,
SLA 1994).

                                            -8-                                      7270

              Having determined that AS 12.63.100(6)(C) requires a comparison of laws,
we next turn to the question of the meaning of “similar.” ASORA provides no definition
of “similar,” so we look to the plain meaning of the term.
              We find it useful to consider how other states define the standard of
comparative resemblance between their home statutes and those of other jurisdictions.
Idaho’s sex offender registration statute employs a “substantially equivalent” standard for
determining whether a person convicted of a crime in another jurisdiction must register
in Idaho.17 Under Idaho law, “substantially equivalent” in the sex offender registration
context “means any sex offense related crime, regardless of whether a felony or
misdemeanor, that consists of similar elements defined in Title 18 of the Idaho Criminal
Code. It does not mean exactly the same, nor exactly identical to.”18 Texas requires that
the out-of-state violation must “contain[] elements that are substantially similar” for
registration to be required under its sex offender registration statutes.19 New Mexico
defines “sex offense” by listing specific offenses and indicating that “their equivalents in
any other jurisdiction” are included in its definition.20 And Massachusetts requires
registration for any “like violation of the laws of another [jurisdiction],”21 which has been
defined as meaning “a conviction in another jurisdiction of an offense of which the
elements are the same or nearly the same as an offense requiring registration in




       17
              Idaho Code Ann. § 18-8304(1)(c) (2016).

       18
              Doe v. State, 352 P.3d 500, 504 (Idaho 2015) (quoting Idaho Admin. Code.

r. 11.10.03.010.05 (2015)).
       19
              Tex. Code Crim. Proc. Ann. art. 62.001(5)(H) (West 2016).
       20
              N.M. Stat. Ann. § 29-11A-3(I) (West 2013).
       21
              Mass. Gen. Laws Ann. ch. 6, § 178C (West 2016).

                                             -9-                                       7270

Massachusetts.”22    The operative wording in these states’ statutes (“substantially
equivalent,” “substantially similar,” “equivalents,” “like violation”) suggests a higher
degree of resemblance than does Alaska’s use of the unqualified term “similar.”
              We also find it useful to consider dictionary definitions when assessing the
plain meaning of a term.23 The American Heritage Dictionary of the English Language
defines “similar” as “[h]aving a resemblance in appearance or nature; alike, though not
identical.”24 Webster’s II New College Dictionary defines “similar” as “[r]esembling
though not completely identical.”25 And Merriam-Webster’s online dictionary defines
“similar” as “having characteristics in common” or as “alike in substance or essentials.”26
              Consistent with the dictionary definitions, “a similar law of another
jurisdiction” does not mean that the elements of the offense must be identical or even
substantially equivalent, but the elements do have to be categorically alike with no
significant differences. A relatively broad reading of “similar” is also supported by the
legislative history and purpose of ASORA, because a broad reading helps promote the




       22
             Doe v. Sex Offender Registry Bd., 925 N.E.2d 533, 538 (Mass. 2010). Like
Idaho, Massachusetts also qualifies its definition by noting that “[t]he elements of the
offense in another jurisdiction need not be precisely the same as the elements of a
Massachusetts sex offense in order for it to constitute a ‘like violation.’ ” Id.
       23
              See Benavides v. State, 151 P.3d 332, 335-36 (Alaska 2006).
       24
          Similar, THE A MERICAN HERITAGE DICTIONARY OF THE ENGLISH
LANGUAGE (5th ed. 2011).
       25
              Similar, W EBSTER’S II NEW COLLEGE DICTIONARY (1st ed. 1995).
       26
               Similar, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary
/similar (last visited Apr. 19, 2018).

                                           -10-                                      7270

“primary governmental interest” of “protecting the public from sex offenders.”27 We
construe the plain meaning of “similar” used in AS 12.63.100(6)(C) to require a relatively
broad standard for the degree of resemblance necessary for sex offenders from other
jurisdictions to be subject to sex offender registration in Alaska.
       B.     DPS v. Doe I, S-15821
              Doe I was convicted of two counts of communicating with a minor for
immoral purposes in violation of RCW 9.68A.090, which provides that “a person who
communicates with a minor for immoral purposes, or a person who communicates with
someone the person believes to be a minor for immoral purposes, is guilty of a gross
misdemeanor.” Under RCW 9.68A.011(5), a “minor” is “any person under eighteen
years of age.” According to Washington case law, “communicate” means “conduct as
well as words,”28 and “immoral purpose” means “sexual misconduct.”29
              The allegedly similar Alaska offense is attempted sexual abuse of a minor
in the second degree under AS 11.31.100 and AS 11.41.436(a)(2). Under AS 11.31.100,
“[a] person is guilty of an attempt to commit a crime if, with intent to commit a crime, the
person engages in conduct which constitutes a substantial step toward the commission of
that crime.” Under AS 11.41.436(a)(2), sexual abuse of a minor is committed if, “being
16 years of age or older, the offender engages in sexual contact with a person who is
under 13 years of age or aids, induces, causes, or encourages a person under 13 years of
age to engage in sexual contact with another person.” “[S]exual contact” is defined in


       27
              Doe v. State, 189 P.3d 999, 1015 (Alaska 2008) (quoting Ch. 41, § 1,
SLA 1994).
       28
              State v. Hosier, 133 P.3d 936, 941 (Wash. 2006).
       29
              Id.; State v. McNallie, 846 P.2d 1358, 1364 (Wash. 1993) (“[T]he statute
prohibits communication with children for the predatory purpose of promoting their
exposure to and involvement in sexual misconduct.”).
                                           -11-                                       7270

AS 11.81.900(b)(59)(A) as “the defendant’s (i) knowingly touching, directly or through
clothing, the victim’s genitals, anus, or female breast; or (ii) knowingly causing the victim
to touch, directly or through clothing, the defendant’s or victim’s genitals, anus, or female
breast.”
              A comparison between RCW 9.68A.090 and the Alaska offense of
attempted sexual abuse of a minor in the second degree reveals some similarity in that
both involve sexual misconduct that is directed at a child victim. However, there are
significant differences between the statutes, such as the fact that the Alaska statute
requires conduct whereas the Washington statute may be violated through either conduct
or words.30 The Alaska statute specifically requires attempted sexual contact, but the
Washington statute is broader, “prohibit[ing] communication with children for the
predatory purpose of promoting their exposure to and involvement in sexual
misconduct.”31 And the Alaska statute requires a victim to be under age 13 whereas the
Washington statute requires only that a victim be under age 18 or an adult victim whom
the offender believes to be under 18.32 Because the Washington statute is significantly
broader than and different from the Alaska statute, Washington’s statute is not similar to
the Alaska offense of attempted sexual abuse of a minor in the second degree for purposes



       30
              See Hosier, 133 P.3d at 941.
       31
              McNallie, 846 P.2d at 1364; see, e.g., Hosier, 133 P.3d 936 (affirming two
convictions of communicating with a minor for immoral purposes where the defendant
left sexually explicit notes about a 13-year-old girl in the girl’s front yard, and wrote a
sexually explicit message on a pair of underpants left in the fence of a children’s
playground where it was found by a group of small children).
       32
              Because we conclude that the Washington statute is not similar to the Alaska
statute on grounds distinct from the age of the victim, we do not decide in this appeal
whether the age differences in themselves make the laws dissimilar under a strict
categorical approach.

                                            -12-                                       7270

of sex offender registration. Doe I is therefore not required to register as a sex offender
in Alaska, and we affirm the superior court’s decision.
       C.     Doe II v. DPS, S-16403
              Doe II was convicted of violating California Penal Code 647.6(a)
(“Annoying or molesting child under 18”), which reads as follows:
                    (a)(1) Every person who annoys or molests any child
              under 18 years of age shall be punished by [a fine of up to
              $5,000 and/or imprisonment for up to a year].
                     (2) Every person who, motivated by an unnatural or
              abnormal sexual interest in children, engages in conduct with
              an adult whom he or she believes to be a child under 18 years
              of age, which conduct, if directed toward a child under 18
              years of age, would be a violation of this section, shall be
              punished by [a fine of up to $5,000 and/or imprisonment for
              up to a year].
In People v. Phillips, the California Court of Appeal interpreted California Penal Code
647.6(a) as consisting of four elements: (1) “objectively and unhesitatingly irritating or
annoying conduct” that is “(2) motivated by an abnormal sexual interest in children in
general or a specific child” and is (3) “directed at a child or children, though no specific
child or children need be the target of the offense”; furthermore, “(4) a child or children
[must be] victims.”33 Doe II’s conviction does not specify whether it was under
subsection (a)(1) (which requires a victim under age 18) or subsection (a)(2) (which
allows for an adult victim whom the offender believes to be under 18), so any facts found
by a court of law or conceded by Doe II could be considered for the limited purpose of




       33
              116 Cal. Rptr. 3d 401, 411 (Cal. App. 2010).

                                           -13-                                       7270
determining which subsection he was convicted under, but no such facts are available in
this case.34
               Again, the allegedly similar Alaska offense is attempted sexual abuse of a
minor in the second degree under AS 11.31.100 and AS 11.41.436(a)(2), as described in
detail in the previous section. Like RCW 9.68A.090, California Penal Code 647.6(a)
broadly resembles the Alaska offense in that it involves sexual misconduct directed at an
underage victim. But again, there are significant differences between the statutes as well:
while the Alaska offense requires an attempt at actual sexual contact, the California
statute has been interpreted to include engaging in offensive conduct with the intent that
it be observed by a child or children.35 And the Alaska statute applies where the victim
is under age 13 while the California statute applies where the victim is under 18 or the
offender believes the victim to be under 18.36 Thus, the California offense of annoying


       34
              A “modified categorical approach” is employed for divisible statutes, which
define multiple separate crimes. See Mathis v. United States, 136 S. Ct. 2243, 2249
(2016) (citing Descamps v. U.S., 133 S. Ct. 2276, 2283 (2013)); Esquivel-Quintana v.
Sessions, 137 S. Ct. 1562, 1568 n.1 (2017) (citing Gonzales v. Duenas-Alvarez, 549 U.S.
183, 187 (2007)). Under the modified categorical approach, “the court may review the
charging documents, jury instructions, plea agreement, plea colloquy, and similar sources
to determine the actual crime [of conviction].” Esquivel-Quintana, 137 S. Ct. at 1568 n.1
(citing Gonzales, 549 U.S. at 187). This permissible modified categorical approach is
different from the approach DPS urges us to adopt; it looks to the facts on record only to
determine which statutory crime was committed, and not when comparing that crime to
the allegedly similar Alaska statute.
       35
             People v. Phillips, 116 Cal. Rptr. 3d 401, 409, 412 (Cal. App. 2010)
(upholding a conviction for violating California Penal Code 647.6(a)(1) because it was
reasonable for the jury to infer that the defendant “intend[ed] to be observed by some
child” when he was “masturbating in his car while parked at the curb directly in front of
a high school, on a school day, at school dismissal time”).
       36
               Because we conclude that the California statute is not similar to the Alaska
                                                                             (continued...)

                                           -14-                                      7270

or molesting a child under 18 is different from and substantially broader than the Alaska
offense of attempted sexual abuse of a minor in the second degree, and we conclude that
the two are not similar for purposes of sex offender registration.37 Doe II is therefore not
required to register as a sex offender in Alaska, and the decision of the superior court is
reversed. Doe II is remanded to the superior court for that court to address its stay order
and order DPS to remove Doe II’s information from the Alaska sex offender registry.
V.     CONCLUSION
              We AFFIRM the superior court’s decision that Doe I is not required to
register as a sex offender in Alaska and REVERSE and REMAND the superior court’s
decision that Doe II is required to register as a sex offender in Alaska.




       36
         (...continued)
statute on grounds distinct from the age of the victim, we do not decide in this appeal
whether the age differences in themselves make the laws dissimilar under a strict
categorical approach.
       37
              It is well within the legislature’s prerogative to enact a definition of
“similar” or amend AS 12.63.100(6)(C) or amend the underlying sex offense crimes if it
wishes to broaden the scope of sexual offenses that require registration in Alaska.

                                           -15-                                       7270

STOWERS, Chief Justice, concurring.

              I agree with the court’s opinion. I write separately to comment on Senior
Justice Matthews’s proposed approach to determining whether an out-of-state sexual
offense law is “similar” to an Alaska sexual offense law such that registration would be
required in Alaska under the Alaska Sex Offender Registration Act.
              As explained in the court’s main opinion, AS 12.63.100(6)(C) defines “sex
offense” as “a crime, or an attempt, solicitation, or conspiracy to commit a crime, under
[one of the listed sex offense statutes] or a similar law of another jurisdiction.”
(Emphasis added.) Today’s opinion applies a strict categorical approach in comparing
the elements of Alaska’s relevant sex offense statute with the elements of the out-of-state
sex offense statute under which the person was convicted to determine whether the two
laws are similar. The court does so because “it is the law that must be similar” and
therefore “we compare the elements of the statute of conviction to the elements of the
allegedly similar Alaska statute.”1
              Senior Justice Matthews argues that the court’s approach is too narrow. He
suggests the analytical approach should begin with this categorical statutory comparison,
but if the comparison does not yield a conclusion that the two statutory offenses are
similar, then a second-stage analysis should ensue: the court should consider the factual
conduct underpinning the out-of-state conviction to determine whether that conduct
would have constituted a sexual offense under Alaska law.2 To determine these facts,
the court could permissibly consider the complaint or indictment, jury instructions, court




       1
              Op. at 7 (emphasis in original).
       2
              Matthews, Senior Justice, Conc. at 21-22.

                                           -16­                                      7270
findings of fact in a judge-tried case, and plea and sentencing transcripts.3 Senior Justice
Mathews argues that this law-plus-conduct approach better promotes the legislature’s
intent in enacting ASORA and that the court’s strict categorical approach “thwart[s] the
legislature’s intent because it would prevent [our] law from reaching some of the
offenses identified by the [legislature] only because of idiosyncracies in the criminal
codes of foreign jurisdictions.”4
              As a purely theoretical matter, I agree with Senior Justice Matthews. The
law-plus-conduct approach suggested by Senior Justice Matthews — like that employed
by the New Mexico Supreme Court in State v. Hall5 — would result in more out-of-state
convicted sex offenders being required to register with the Alaska sex offender registry
and likely would better accomplish the policy goals the legislature envisioned when it
enacted ASORA. The problem is that the legislature used specific language when it
crafted the statute requiring similarity: the legislature defined “sex offense” as “a crime,
or an attempt, solicitation, or conspiracy to commit a crime, under [one of the listed sex
offense statutes] or a similar law of another jurisdiction.”6 Had the legislature wanted
to ensure that the conduct underlying the out-of-state conviction should also be
considered, it could have said so.
              For example, if the legislature wanted to craft an even more broad-sweeping
sex offender registry statute, it could take the approach suggested by the New Mexico
Supreme Court in Hall. The court in Hall adopted an approach like that advocated by


       3
              Matthews, Senior Justice, Conc. at 23-26, 23 n.11.
       4
             Matthews, Senior Justice, Conc. at 27-28 (quoting State v. Lloyd, 970 N.E.
2d 870, 877 (Ohio 2012)).
       5
              294 P.3d 1235 (N.M. 2012).
       7
              AS 12.63.100(6)(C) (emphasis added).

                                           -17-                                       7270

Senior Justice Matthews, permitting New Mexico trial courts to consider the charging
documents, the plea agreement, and the transcript of the plea hearing to determine the
actual conduct that supported a defendant’s sex offense conviction from another state.7
But even under this approach, the New Mexico Supreme Court warned:
              We realize that in some cases, such as a guilty plea in which there
              was no allocution, there will be no factual findings for a New
              Mexico court to review. In that instance, the court will be limited to
              comparing the elements of the foreign sex offense to those of the
              enumerated offenses under [the New Mexico sex offender
              registration act]. In some cases, this will mean that out-of-state sex
              offenders will not have to register in New Mexico, even for serious
              offenses. If the Legislature is disturbed by this possibility, it is free
              to amend SORNA once again. Several states have passed laws
              requiring out-of-state sex offenders to register for any offense that
              was registrable in the state of conviction. See, e.g., Ind. Code Ann.
              § 11-8-8-5(b)(1) (West 2012) (The term “sex or violent offender”
              includes “a person who is required to register as a sex or violent
              offender in any jurisdiction.”); Mont. Code Ann. § 46-23-502(9)(b)
              (2007) (A “sexual offense” includes “any violation of a law of
              another state, a tribal government, or the federal government that is
              reasonably equivalent to a violation listed in subsection (9)(a) or for
              which the offender was required to register as a sexual offender after
              an adjudication or conviction.” (Emphasis added)). [8]

              Alaska’s statute contains no comparable language requiring out-of-state sex
offenders to register in Alaska for any offense for which they were required to register
as a sex offender in the state of conviction, nor does Alaska’s statute permit the court to
consider the factual conduct giving rise to the out-of-state sex offense conviction.




       7
              294 P.3d at 1240.
       8
              Id. at 1240-41 (bold emphasis added).

                                            -18­                                          7270
              Senior Justice Matthews’s approach is, in my opinion, a rational approach
and one that the Alaska Legislature may well wish to consider going forward. Or the
legislature may wish to consider a more inclusive approach like that taken in Montana
or Indiana. But whatever approach is taken is a policy decision, and policy decisions of
this kind are decisions the legislature, not this court, should make. The strict categorical
approach applied by this court in this case is faithful to the language of the current
statute, and I therefore agree with the court’s opinion.




                                           -19-                                       7270

FABE, Justice, concurring.
             I agree with the result of the court’s opinion.1 But I also agree with Part IV
of Senior Justice Matthews’s concurring opinion and would not resolve the question
whether we should apply the categorical approach or an approach that permits reference
to court documents in deciding this case. As Senior Justice Matthews points out, “the
statutes being compared are not similar under either approach that might be used.” And
as he suggests, our cases “have frequently counseled against deciding questions in the
abstract.” Thus, I join his view that we should “defer[] the decision as to which approach
is preferable to a case in which the choice actually makes a difference.”




      1
              I am participating in only one of the cases in this consolidated opinion,
State, Dep’t of Publ Safety v. Doe, S-15821 (Case No. 3AN-14-08325 CI).

                                          -20-                                       7270
MATTHEWS, Senior Justice, concurring.
I.     INTRODUCTION
              Today the court holds that only statutory language can be consulted when
determining whether a foreign conviction was committed under a statute similar to an
Alaska statute listed in ASORA. In my opinion, a foreign statute should be regarded as
similar to a narrower Alaska statute for ASORA purposes when it covers the same
conduct as the Alaska statute, as well as other conduct, if in a particular case it is clear
that the foreign conviction was based on conduct that would satisfy the elements of the
Alaska statute. Since sometimes court records can show this, I would not preclude
referring to them in limited circumstances. The legislature intended ASORA to apply
broadly in order to best achieve its public safety purposes. The approach I favor should
be adopted rather than the strict approach taken by the court because it is more consistent
with this intent. It is also in accord with the overwhelming majority of cases decided
under SORA statutes in other jurisdictions.
II.    HOW I WOULD DECIDE THIS CASE
              I agree with the result of the court’s opinion.1 But I do not think that it is
enough to say that the California “annoying or molesting” statute is not similar to the
Alaska sexual abuse of a minor statute merely because the California statute covers, for
example, indecent exposure as well as sexual contact crimes.2
              The approach I favor would first compare the statutory language. If the
California statute is similar to the Alaska statute, but broader because it covers additional
conduct, further inquiry would be called for. Specifically, the question would be


       1
              I am participating only in one of the cases in this consolidated proceeding,
Doe v. State, Dep’t of Pub. Safety, S-16403 (Case No. 3AN-15-04577 CI) (“Doe II”).
       2
              Op. at 14-15.

                                            -21-                                       7270

whether, based on the court records in the California proceeding, Doe II’s conviction in
California was necessarily based on conduct similar to that required for a conviction
under the Alaska statute identified as similar by the Department, attempted sexual abuse
of a minor in the second degree under AS 11.41.436(a)(2).
              The first step, statutory comparison for similarity, might be met in the
present case. The “annoying or molesting” and the sexual abuse of a minor statutes have
similar purposes — protecting minors from inappropriate sexual behavior by others.3
The conduct forbidden under the California law — conduct “so lewd or obscene that the
normal person would unhesitatingly be irritated by it”4 — is broader than the conduct
forbidden under AS 11.41.436(a)(2), but it would encompass such conduct — knowingly
sexually touching a child under 13 or causing such a child to sexually touch herself or
another person.5 Further, both statutes require violators to register as sexual offenders.6
              Of course, there are differences between the two statutes apart from the
broader scope of the conduct prohibited under the California statute. The difference in
the maximum age of the potential victims — 17 in California7 and 12 in Alaska8 — may




         3
            While the Department determined Doe II’s conviction was similar to
attempted sexual abuse, I consider only the substantive elements set out in
AS 11.41.436(a)(2) and not those in the attempt statute in making the comparison.
         4
              People v. Carskaddon, 318 P.2d 4, 5 (Cal. 1957) (en banc).
         5
              AS 11.41.436(a)(2), AS 11.81.900(a)(59).
         6
              AS 12.63.010, .100(5)-(6); Cal. Penal Code § 290(c) (West 2014 & Supp.
2018).
         7
              Cal. Penal Code § 647.6(a)(1).
         8
              AS 11.41.436(a)(2).

                                           -22-                                      7270

be significant. The fact that the California offense is a misdemeanor9 and the Alaska
offense is a felony10 could also be significant. An accused might much more readily
plead guilty or no contest to charges under the California statute than to charges under
the Alaska statute. But I will assume for the purpose of discussion that these differences
would not render the laws dissimilar for registration purposes, and go to the second
inquiry as to the nature of the underlying offense.
              If it were clear from the facts established by the court records11 in the
California proceeding (1) what the nature of Doe II’s conduct was that formed the basis
for his conviction and (2) that such conduct was necessarily similar to conduct that
would constitute attempted sexual abuse of a minor in the second degree under
subsection .436(a)(2) in Alaska, the statutory standard for registration would be met, in
my opinion. It would then be fair to say that Doe II was convicted of a “sex offense” as
that term is used in ASORA, because Doe II’s crime would be similar to attempted
sexual abuse of a minor and would have been committed under a statute that, except for
the greater breadth of its coverage, is similar in its purpose and its applicable elements
to Alaska’s statute.
              But the conduct on which Doe II’s conviction was based is not established
by the California court records. For this reason I agree that there is no permissible basis
in this case for concluding that Doe II’s conviction in California was for a sex offense
as that term is defined under ASORA and thus he is not a “sex offender” with a duty to
register.


       9
              Cal. Penal Code §§ 17(a), 1170(h), 647.6(a).
       10
              AS 11.41.436(b).
       11
              By this I mean the complaint or indictment, jury instructions, court findings
in a judge-tried case, and plea and sentencing transcripts.

                                           -23-                                      7270

              All states now have SORAs. Almost all state courts that have ruled on the
issue have adopted some variant of the approach that I favor.12 I will quote from three
other jurisdictions to give the reader a better sense of this body of law:
       !      Washington Court of Appeals:
                      To determine whether an out-of-state conviction
              qualifies as a “sex offense,” a trial court compares the out-of­
              state statute with comparable laws of this state. This is a two-
              step process, addressing both the legal definitions of the
              crimes and the facts underlying the convictions. First, the
              trial court must examine the elements of the out-of-state
              crime and compare them to the elements of the comparable
              Washington crime. If the crimes have similar elements, the
              analysis is complete. But, “[i]f the elements are not identical,
              or the foreign statute is broader than the Washington
              definition of the particular crime,” then, as a second step, the
              trial court may examine the facts of the out-of-state crime
              “ ‘as evidenced by the indictment or information.’ ”[13]


       12
              See Tracy Bateman Farrell, Annotation, Validity, Construction, and
Application of State Statutory Requirement that Person Convicted of Sexual Offense in
Other Jurisdiction Register or Be Classified as Sexual Offender in Forum State, 34
A.L.R.6th 171 §§ 25-26 (2008) (Westlaw) (database updated March 2017). The
Annotation cites only three jurisdictions (Arizona, Massachusetts, and Ohio) as
supporting the view that a court may not look beyond the statutory language. See id. §
26. But in light of State v. Lloyd, 970 N.E.2d 870 (Ohio 2012), Ohio should no longer be
included, and the Arizona case cited by the Annotation, State v. Kuntz, 100 P.3d 26, 30
n.3 (Ariz. App. 2004), indicates that the criminal complaint upon which a foreign
conviction is based can be considered if incorporated in the judgment. Further, the
Arizona legislature, after the decision in Kuntz, largely mooted the effect of that decision
by amending the Arizona SORA to require registration of any offender who has been
required to register in another jurisdiction. See State v. Lowery, 287 P.3d 830, 835-36
(Ariz. App. 2012). Case law in Massachusetts does support the opinion of the court. See
Doe v. Sex Offender Registry Bd., 925 N.E.2d 533 (Mass. 2010).
       13
              State v. Howe, 212 P.3d 565, 567 (Wash. App. 2009) (alteration in original)
                                                                           (continued...)

                                           -24-                                       7270

       !      New Mexico Supreme Court:
              When the elements of the out-of-state sex offense are
              precisely the same elements of a New Mexico sex offense,
              the inquiry is at an end. However, even when the elements
              are dissimilar, courts should consider the defendant’s
              underlying conduct to determine whether the defendant’s
              conduct would have required registration in New Mexico as
              a sex offender.
                                           ....
                     The remaining question is how should a New Mexico
              court determine the actual conduct that supported the
              defendant’s conviction of a sex offense in another jurisdiction
              when deciding equivalency under SORNA. . . . When a
              defendant enters a plea of guilty or nolo contendere, the
              charging document, plea agreement, or transcript of the plea
              hearing should establish the factual basis for the plea. A New
              Mexico court should consider the facts stated in such
              documents when determining whether the conduct underlying
              the plea would have constituted a violation of one of the
              twelve enumerated SORNA offenses that require sex
              offender registration. In essence, the question is whether the
              out-of-state fact-finder necessarily must have found facts that
              would have proven the elements of the New Mexico
              registrable offense. If so, the alleged sex offender has
              committed the equivalent of an enumerated New Mexico sex
              offense.
                                           ....




       13
          (...continued)
(citations omitted) (quoting State v. Morley, 952 P.2d 167, 175-76 (Wash. 1998)). It is
worthy of note that Doe II agrees with the approach outlined in Howe. This serves to
illustrate the point made later in this concurring opinion that deciding between the court’s
“categorical approach” and the approach I prefer is not necessary to the outcome of this
case. See infra p. 29.

                                           -25-                                       7270

                     We realize that in some cases, such as a guilty plea in
              which there was no allocution, there will be no factual
              findings for a New Mexico court to review. In that instance,
              the court will be limited to comparing the elements of a
              foreign sex offense to those of the enumerated offenses under
              SORNA. In some cases, this will mean that out-of-state sex
              offenders will not have to register in New Mexico, even for
              serious offenses.[14]
       !      Ohio Supreme Court:
              We conclude that in order to determine whether an out-of­
              state conviction is substantially equivalent to a listed Ohio
              offense, a court must initially look only to the fact of
              conviction and the elements of the relevant criminal statutes,
              without considering the particular facts disclosed by the
              record of conviction. If the out-of-state statute defines the
              offense in such a way that the court cannot discern from a
              comparison of the statutes whether the offenses are
              substantially equivalent, a court may go beyond the statutes
              and rely on a limited portion of the record in a narrow class
              of cases where the factfinder was required to find all the
              elements essential to a conviction under the listed Ohio
              statute. To do so, courts are permitted to consult a limited
              range of material contained in the record, including charging
              documents, plea agreements, transcripts of plea colloquies,
              presentence reports, findings of fact and conclusions of law
              from a bench trial, jury instructions and verdict forms, or
              some comparable part of the record.[15]
              Here are the reasons I think that the approach I favor should be preferred
to the court’s categorical approach. First, the criminal statutes of the several states come
in many forms, and it is to be expected that many individual statutes will cover both
conduct requiring registration in Alaska and conduct that does not require registration.


       14
              State v. Hall, 294 P.3d 1235, 1239-40 (N.M. 2012).
       15
              Lloyd, 970 N.E.2d at 877.

                                           -26­                                       7270
Any thoughtful lawmaker would be aware of this fact. Second, the Alaska Legislature
wanted offenders who had committed crimes elsewhere that are similar to crimes
requiring registration in Alaska to register as sex offenders when moving to Alaska.16
Third, as the court notes, the legislature by its use of the unmodified term “similar”
intended that Alaska’s standard should be given “a relatively broad reading” and,
relatedly, suggested that it desired Alaska to be more inclusive with respect to out-of­
state crimes than states using comparative phrases such as “substantially equivalent,”
“substantially similar,” “equivalents,” or “like violation.”17 But the court’s strict

      16
              This observation is supported by common sense — What else could the
legislature have intended? — as well as the legislative history of ASORA. Staff Counsel
Doug Wooliver, representing the prime sponsor of the legislation, referred to registration
of out-of-state offenders in his explanatory statements to two legislative committees.
Wooliver listed the Alaska crimes that would be covered and added that crimes
committed elsewhere would also be covered when the person convicted moved to Alaska:

             Mr. Wooliver explained the bill covered crimes of sexual
             assault in the first, second, and third degree; sexual abuse of
             a minor in the first, second, and third degree; promoting
             prostitution in the first degree; and incest and unlawful
             exploitation of a minor. He also explained the bill covered
             crimes not only committed in Alaska but those in other
             jurisdictions when those persons moved to Alaska.

Minutes, Sen. Judiciary Comm. Hearing on H.B. 69, 18th Leg., 1st Session, Tape 93-43,
side A, no. 505 (Apr. 14, 1993). This clearly implies that those convicted in other
jurisdictions of crimes like those listed for Alaska would also have to register. Wooliver
made a similar statement to the Senate Finance Committee. See Minutes, Sen. Finance
Comm. Hearing on H.B. 69, Tape SFC-93, #69, side 2, no. 225 (Apr. 28, 1993). I have
seen no other reference to registration for out-of-state convictions in my review of
ASORA’s history.
      17
             Op. at 9-10. New Mexico, which permits consulting court documents in
individual cases, see Hall, 294 P.3d at 139-40, is among the jurisdictions the court cites
                                                                            (continued...)

                                          -27-                                      7270

approach needlessly limits the number of foreign convictions that qualify as a sex offense
and thus poorly serves the legislature’s intent. As the Ohio Supreme Court has observed,
such an approach “thwart[s] the legislature’s intent because it would prevent [our] law
from reaching some of the offenses identified by the [legislature] only because of
idiosyncracies in the criminal codes of foreign jurisdictions.”18
              Although I have explained above how I think this case should be decided,
and why, a number of additional comments seem appropriate.
III.   COMMENTS ON THE DEPARTMENT’S APPROACH
              The approach taken by the Department of Public Safety in this case cannot
be justified. In deciding whether Doe II was required to register, the Department
gathered investigative reports from California law enforcement authorities concerning
Doe II’s conduct. The Department decided that in light of the conduct shown in the
reports and the elements of the California annoying or molesting statute, “the California
offense as to which [Doe II was] convicted is similar to the Alaska offense of attempted
sexual abuse of a minor in violation of AS 11.41.436(a)(2).” But the investigative
reports on which the Department relied detailed a wide range of alleged misbehavior,
only some of which might meet the elements of attempted sexual abuse of a minor as set
out in this statutory subsection. The reports did not necessarily show what conduct
Doe II was convicted of. The complaint to which he pled no contest was conclusory
only, and did not detail any conduct. Moreover, in order to rely on the reports consistent
with due process, the Department should have given Doe II notice and an opportunity
to rebut them. This was not done, nor are there regulations that call for such a procedure.


       17
         (...continued)
in this discussion. Op. at 9-10.
       18
              Lloyd, 970 N.E.2d at 877.

                                           -28-                                      7270

Further, any suggestion that the Department must conduct a trial-like proceeding in order
to determine what a defendant was convicted of seems implausible in light of the expense
and inefficiency involved, yet that is what due process would require. And again, even
if such an approach were taken, it would show, at best, only what a potential registrant
did, not, as required by ASORA, what he was convicted of.
IV.	   IT IS NOT NECESSARY TO CHOOSE BETWEEN THE CATEGORICAL
       APPROACH AND THE APPROACH THAT PERMITS REFERENCE TO
       COURT DOCUMENTS.
              It is not necessary to decide in this case whether the court’s approach of
reviewing only the statutory language or the two-step approach I have described should
be adopted. All that needs to be said is that the statutes being compared are not similar
under either approach that might be used. This has the advantage of deferring the
decision as to which approach is preferable to a case in which the choice actually makes
a difference.19 Experience teaches that this would be desirable because the pros and cons
of a rule announced based on hypothetical facts may well look different in a concrete
setting.20
V.	    COMMENTS CONCERNING THE COURT’S OPINION
              The opinion’s rationale seems to be encapsulated in the following two
sentences: “Because ‘similar’ modifies ‘law of another jurisdiction,’ based on the plain
language of the statute it is the law that must be similar. We therefore ‘employ a

       19	
              I would join in an opinion so holding.
       20
             Our cases have frequently counseled against deciding questions in the
abstract. See, for example, State v. American Civil Liberties Union of Alaska, 204 P.3d
364, 371-73 (Alaska 2009), and cases there cited. “Courts worry that unnecessary
lawmaking should be avoided, both as a matter of defining the proper role of the judiciary
in society and as a matter of reducing the risk that premature litigation will lead to ill-
advised adjudication.” Id. at 372 (quoting Brause v. State, Dep’t of Health & Soc. Servs.,
21 P.3d 357, 359 (Alaska 2001)).

                                           -29-	                                     7270

categorical approach by looking to the statute . . . of conviction, rather than to the
specific facts underlying the crime’ to determine whether that statute is similar to one of
the pertinent Alaska sex offenses under AS 12.63.100(6)(C).”21
              This rationale may be read as simply concluding that because “similar”
modifies “law of another jurisdiction” we are necessarily limited to consulting only
statutory terms because of the constraints of the English language. Or the rationale may
be that there is something compelling about the line of cases from which the quoted
language is taken that requires us to limit our inquiry to the statutory terms.
              Taking the first possibility, the phrase “similar law” is broad enough to
encompass two statutes having similar purposes that cover the same conduct in a
particular case, even if one may cover conduct that the other does not in other situations.
Of course, a narrower meaning is also possible. But one would expect an explanation
for choosing the narrower meaning, especially when the legislature has indicated a
preference for inclusivity and our case law has rejected application of a strict plain-
meaning analysis.22
              The second possible meaning — that the line of cases represented by the
quote from Esquivel-Quintana v. Sessions is compelling in the context of ASORA —
requires an examination of the case law.



       21
             Op. at 7 (alteration in original) (emphasis in original) (quoting Esquivel-
Quintana v. Sessions, 137 S. Ct. 1562, 1568 (2017)).
       22
              See, e.g., Blas v. State, Dep’t of Labor & Workforce Dev., Div. of Emp’t
Sec., 331 P.3d 363, 373-74 (Alaska 2014) (using “sliding scale” in statutory interpretation
and considering legislative history to construe “knowingly” in unemployment
compensation disqualification statute). In contrast, the U.S. Supreme Court does not
consult legislative history to interpret statutes if it determines the statutory language is
plain. See, e.g., Lamie v. U.S. Tr., 540 U.S. 526, 532-34 (2004).

                                           -30-                                       7270

             Esquivel-Quintana involved a removal proceeding against a lawful
permanent resident based on the government’s contention that he had been convicted of
“an aggravated felony,” a term that explicitly included “sexual abuse of a minor,” under
the Immigration and Nationality Act (INA).23 The petitioner had pleaded no contest to
a California statutory rape offense criminalizing “unlawful sexual intercourse with a
minor who [was] more than three years younger than the perpetrator.”24 The question
was whether this offense fell within the meaning of “sexual abuse of a minor” under the
INA.25 As there is no explicit statutory definition of “sexual abuse of a minor” under the
INA, the court used a “generic” definition — based on the rule in most states — that
required the victim to be younger than 16.26 Under the California statute the victim could
have been as old as 17.27 Applying the “categorical approach,” which forbids the court
from looking at the actual age of the victim and requires the court to evaluate whether
“the least of the acts criminalized by the state statute falls” within a corresponding
“generic federal definition” of the crime, the court concluded that a conviction under the
California statute was not necessarily sexual abuse of a minor under the INA.28




      23
             137 S. Ct. at 1567.

      24
             Id. (quoting Cal. Penal Code § 261.5(c) (West 2014)).

      25
             Id.

      26
             Id. at 1569, 1571-72.
      27
             Id. at 1568.
      28
             Id. at 1568-72.

                                          -31-                                      7270

              The court noted that the categorical approach it employed was set forth in
Taylor v. United States,29 an early example of a case interpreting the sentencing
enhancement provisions of what is now called the Armed Career Criminal Act (ACCA),
which increases the sentences of federal defendants who have three prior convictions
“for a ‘violent felony’ ” including “burglary, arson, or extortion.”30 Courts interpreting
ACCA also use “generic” definitions to determine whether a state conviction qualifies
as one of these crimes.31 Consulting state court records to determine the nature of a
given conviction is generally prohibited, except in cases where a statute is said to be
“divisible,” that is one that lists elements of the offense in the alternative.32
              Neither the INA nor ACCA resembles ASORA in form, purpose, or effect.
Further, the Esquivel-Quintana and Taylor line of cases does not purport to be
expressing a constitutional principle that would be binding on state courts when
interpreting SORAs. They are simply interpreting particular federal statutes. I do not
think they provide an analogy that is useful to this case. The opinion of the court does
not explain why the court believes they do.
              The court may also be implying that, because the court of appeals compares
statutory elements and not the underlying facts of an offense when applying the sentence-
enhancing provisions of Alaska’s presumptive sentencing law, this court should observe




       29
              Id. at 1568 (citing Taylor v. United States, 495 U.S. 575 (1990)).
       30
             See Mathis v. United States, 136 S. Ct. 2243, 2247-48 (2016) (quoting 18
U.S.C. § 924(e) (2012)).
       31
              Taylor, 495 U.S. at 598.
       32
             See Descamps v. United States, 570 U.S. 254, 257 (2013) (describing
modified categorical approach and its application).

                                            -32-                                    7270

a similar limitation under ASORA.33 But the presumptive sentencing law, like the INA
and ACCA, is different from ASORA in form, purpose, and effect. Thus the approach
taken by the court of appeals does not mean that the same approach is appropriate under
ASORA.34 Again, the opinion of the court has offered no explanation as to why it may

      33
             Op. at 8.
      34
              The Court of Appeals of New York addressed the question whether a strict
approach taken under a law that served to increase sentences should be used when
interpreting New York’s SORA. See North v. Bd. of Exam’rs of Sex Offenders of N.Y.,
871 N.E.2d 1133 (N.Y. 2007). The court concluded that there was no persuasive analogy:
                   We are unpersuaded that the Legislature intended that
             the SORA “essential elements” inquiry involve the same strict
             equivalency approach used in the criminal enhanced
             sentencing context.
                                          ....
                    . . . Certainly words or phrases used in the same
             legislation or statutory scheme are commonly ascribed the
             same meaning. Here, however, the language on which
             petitioner relies appears in distinct legislation enacted in
             separate statutory schemes that fulfill different functions.
                    As part of the penal system, enhanced sentencing
             statutes serve to extend the term of incarceration attending a
             criminal conviction. In contrast, SORA is not a penal statute
             and the registration requirement is not a criminal sentence.
             Rather than imposing punishment for a past crime, SORA is
             a remedial statute intended to prevent future crime; its aim is
             to “protect[] communities by notifying them of the presence
             of individuals who may present a danger and enhancing law
             enforcement authorities’ ability to fight sex crimes.” While
             application of a strict equivalency standard is understandable
             in the enhanced sentencing context where the length of a
             defendant’s incarceration is to be determined, it may not be
             the optimal vehicle to effectuate SORA’s remedial purposes.
                                                                               (continued...)

                                          -33-                                         7270

be concluding that cases interpreting sentence-enhancing provisions should guide our
interpretation of ASORA.




       34
            (...continued)
                  The legislative history of SORA does not disclose any intent
                  by lawmakers to import the test from the Penal Law.
Id. at 1137-38 (alteration in original) (citations omitted).

                                             -34-                                7270

