In The Supreme Court of the United States

No. ================================================================ In The Supreme Court of the United States --------------------------------- --------------------------------- JOHN DOE, v. Petitioner, May 5, 2014 RON REPLOGLE, et alia, --------------------------------- --------------------------------- Respondents. On Petition For Writ Of Certiorari To The Missouri Court Of Appeals, Southern District --------------------------------- --------------------------------- PETITION FOR WRIT OF CERTIORARI --------------------------------- --------------------------------- JONATHAN STERNBERG Counsel of Record JONATHAN STERNBERG, ATTORNEY, P.C. 911 Main Street, Suite 2300 Kansas City, Missouri 64105 Telephone: (816) 292-7000 Facsimile: (816) 292-7050 jonathan@sternberg-law.com Counsel for Petitioner ================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM

i QUESTIONS PRESENTED Missouri s Sex Offender Registration Act (SORA) requires any Missouri resident who must register as a sex offender under federal law to register as one in Missouri, but the Supreme Court of Missouri has held applying SORA to anyone convicted before it was enacted in 1995 violates the Missouri Constitution. As a condition of receiving certain federal funds under the Spending Clause, U.S. Const. art. I, 8, cl. 1, the federal Sex Offender Registration and Notification Act (SORNA) requests states to require any person who has committed a sexual offense under military law to register as a sex offender. The petitioner was convicted of a military sexual offense in 1979. The Missouri Court of Appeals held the petitioner must register in Missouri because SORNA obligates Missouri to require this and, therefore, the Missouri Constitution does not apply. The questions presented are: 1. Whether, contrary to courts in other states and United States v. Kebodeaux, 133 S.Ct. 2496 (2013), which held SORNA does not insist that the States implement its requests, SORNA obligates a state to require a person to register as a sex offender who the state s constitution otherwise precludes from being forced to submit to registration under state law. 2. Whether, contrary to North Carolina ex rel. Morrow v. Califano, 435 U.S. 962 (1978), a state s ability to implement a federal Spending Clause request is not preconditioned on its constitution allowing it to do so.

ii LIST OF PARTIES The petitioner, John Doe, was the appellant below. Respondent Ron Replogle was a respondent below. Two other respondents in this Court are not identified in the caption. Thomas Volner and Robert Johnson both were respondents below and are represented by the same counsel as Ron Replogle.

iii TABLE OF CONTENTS Page Questions Presented... i List of Parties... ii Table of Contents... iii Table of Authorities... v Opinions Below... 1 Jurisdiction... 1 Constitutional and Statutory Provisions Involved... 2 Introduction... 7 Statement of the Case... 10 Reasons for Granting the Writ... 15 I. This Court should resolve the split among the States as to whether SORNA obligates a state to require a person to register as a sex offender when the state s constitution otherwise precludes him from being forced to register under state law... 17 A. Every other state s court to analyze SORNA s effect on a state constitutional provision precluding the state from requiring certain SORNA-required persons to register has held registration remains a matter of state law that first must satisfy the state s constitution... 19

iv TABLE OF CONTENTS Continued Page B. Missouri conflicts with all the other states, holding instead that SORNA requires Missouri to force all persons SORNA defines as sex offenders to register in Missouri and nullifies the Missouri Constitution s provision otherwise precluding the state from requiring persons convicted of sexual offenses before 1995 to register under Missouri law... 23 II. This Court should intervene and re-clarify whether, as it previously held in North Carolina ex rel. Morrow v. Califano, a state s ability to implement a federal Spending Clause request is preconditioned on the state s constitution allowing it to do so... 30 Conclusion... 36 APPENDIX The Missouri Court of Appeals October 15, 2013, Opinion... App. 1 The trial court s June 4, 2012, findings of fact, conclusions of law and judgment... App. 10 The Missouri Court of Appeals November 6, 2013, Order denying rehearing or transfer... App. 18 The Supreme Court of Missouri s February 4, 2014, Order denying transfer... App. 19

CASES: v TABLE OF AUTHORITIES Page Andrews v. State, 978 N.E.2d 494 (Ind. Ct. App. 2012)... passim Barnes v. Gorman, 536 U.S. 181 (2002)... 7 Citizens for Honesty and Integrity in Reg l Planning v. Cnty. of San Diego, 258 F.Supp.2d 1132 (S.D.Cal. 2003)... 31, 32 Doe v. Dep t of Pub. Safety & Corr. Servs., 62 A.3d 123 (Md. 2013)... passim Doe v. Keathley, 290 S.W.3d 719 (Mo. 2009)... passim Doe v. Phillips, 194 S.W.3d 833 (Mo. 2006)... 11, 13, 24, 29 Doe v. Replogle, S.W.3d, 2013 WL 5634091 (Mo. Ct. App. 2013)... 1 Hicks v. Miranda, 422 U.S. 332 (1975)... 35 In re Certificate of Need for Aston Park Hosp., Inc., 193 S.E.2d 729 (N.C. 1973)... 33, 34 In re C.P., 967 N.E.2d 729 (Ohio 2012)... passim Massachusetts v. Mellon, 262 U.S. 447 (1923)... 7 Missouri v. Jenkins, 515 U.S. 70 (1995)... 35 New York v. United States, 505 U.S. 144 (1992)... 30, 31 North Carolina ex rel. Morrow v. Califano, 445 F.Supp. 532 (E.D.N.C. 1977), aff d mem. 435 U.S. 962 (1978)... passim Roe v. Replogle, 408 S.W.3d 759 (Mo. 2013)... 26, 27, 30, 35

vi TABLE OF AUTHORITIES Continued Page Roe v. Replogle, No. 13A647 (U.S. filed Dec. 18, 2013)... 27 South Dakota v. Dole, 483 U.S. 203 (1987)... 7, 31, 32 Starkey v. Okla. Dep t of Corr., 305 P.3d 1004 (Okla. 2013)... 29 State v. Hough, 978 N.E.2d 505 (Ind. Ct. App. 2012)... 9, 14, 19, 21, 22 State v. Letalien, 985 A.2d 4 (Me. 2009)... 9, 14, 19, 20, 29 United States v. Butler, 297 U.S. 1 (1936)... 31 United States v. Kebodeaux, 133 S.Ct. 2496 (2013)... passim Wallace v. State, 905 N.E.2d 371 (Ind. 2009)... 21, 29 CONSTITUTION OF THE UNITED STATES: U.S. Const. art. I, 8, cl. 1 (Spending Clause)... passim U.S. Const. art. I, 8, cl. 3 (Commerce Clause)... 31 STATE CONSTITUTIONS: Ind. Const. art. 1, 24... 21 Md. Const. Declaration of Rights art. 17... 22, 23 Me. Const. art. I, 11... 20 Mo. Const. art. I, 13... passim

vii TABLE OF AUTHORITIES Continued Page N.C. Const. art. I, 19... 34 Ohio Const. art. I, 9... 20 FEDERAL STATUTORY PROVISIONS: 10 U.S.C. 925... 10 18 U.S.C. 2250... 18 28 U.S.C. 1253... 34, 35 28 U.S.C. 1257... 2 42 U.S.C. 3750 through 3758... 18 Sex Offender Registration and Notification Act (42 U.S.C. 16901, et seq.): 42 U.S.C. 16911... 2, 17 42 U.S.C. 16912... 3, 17 42 U.S.C. 16913... 3, 17 42 U.S.C. 16915... 3 42 U.S.C. 16917... 4, 17 42 U.S.C. 16925... passim MISSOURI STATUTORY PROVISIONS: Mo. Rev. Stat. 589.400... passim OTHER AUTHORITIES: Brief of Appellant, State v. Hough, 978 N.E.2d 505 (Ind. Ct. App. 2012) (No. 64A05-1203- MI-113), 2011 WL 8251834... 28

viii TABLE OF AUTHORITIES Continued Page Brief of Appellee, Andrews v. State, 978 N.E.2d 494 (Ind. Ct. App. 2012) (No. 29A02-1112-MI- 1166), 2012 WL 2848556... 28 Brief of Respondent, Doe v. Dep t of Pub. Safety & Correctional Servs., 62 A.3d 123 (Md. 2013) (No. 125), 2012 WL 3791643... 28 Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, U.S. Department of Justice, Sex Offender Registration and Notification in the United States: Current Case Law and Issues (July 2012)... 22 William W. Van Alstyne, Thirty Pieces of Silver for the Rights of Your People: Irresistible Offers Reconsidered as a Matter of State Constitutional Law, 16 HARV. J.L. & PUB. POL Y 303 (1993)... 33

1 PETITION FOR WRIT OF CERTIORARI Petitioner John Doe respectfully petitions for a writ of certiorari to review the judgment of the Missouri Court of Appeals in this case. --------------------------------- --------------------------------- OPINIONS BELOW The trial court s judgment is unpublished and is reproduced in the Appendix ( App. ) at 10-17. The Missouri Court of Appeals opinion affirming the trial court s judgment is to be reported at Doe v. Replogle, S.W.3d (Mo. Ct. App. 2013), but has not yet been published, is available at 2013 WL 5634091, and is reproduced at App. 1-9 The Missouri Court of Appeals order denying rehearing or transfer to the Supreme Court of Missouri is unpublished and is reproduced at App. 18. The Supreme Court of Missouri s order denying the petitioner s application for transfer from the Missouri Court of Appeals is unpublished and is reproduced at App. 19-20. --------------------------------- --------------------------------- JURISDICTION The Missouri Court of Appeals entered its judgment on October 15, 2013 (App. 1). The Missouri Court of Appeals denied rehearing and transfer to the Supreme Court of Missouri on November 6, 2013 (App. 18). The Supreme Court of Missouri denied

2 transfer on February 4, 2014 (App. 19). This Court has jurisdiction under 28 U.S.C. 1257(a). --------------------------------- --------------------------------- CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Spending Clause, U.S. Const. art. I, 8, cl. 1: The Congress shall have Power... to pay the Debts and provide for the common Defence and general Welfare of the United States.... Mo. Const. art. I, 13: That no... law... retrospective in its operation... can be enacted. The Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. 16901, et seq.: 42 U.S.C. 16911 Definitions In this subchapter the following definitions apply: (1)... The term sex offender means any individual who was convicted of a sex offense. (2)... The term tier I sex offender means a sex offender other than a tier II or tier III sex offender.... (9)... The term sex offender registry means a registry of sex offenders, and a

3 notification program, maintained by a jurisdiction. (10)... The term jurisdiction means any of the following: (A) A State.... 42 U.S.C. 16912 Registry requirements for jurisdictions (a)... Each jurisdiction shall maintain a jurisdiction-wide sex offender registry conforming to the requirements of this subchapter.... 42 U.S.C. 16913 Registry requirements for sex offenders (a)... 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....... (e)... Each jurisdiction... shall provide a criminal penalty that includes a maximum term of imprisonment that is greater than 1 year for the failure of a sex offender to comply with the requirements of this subchapter. 42 U.S.C. 16915 Duration of registration requirement (a)... A sex offender shall keep the registration current for the full registration period.... The full registration period is... 15 years, if the offender is a tier I sex offender....

4 42 U.S.C. 16917 Duty to notify sex offenders of registration requirements and to register (a)... An appropriate official shall... ensure that the sex offender is registered.... 42 U.S.C. 16925 Failure of jurisdiction to comply (a) In general For any fiscal year after the end of the period for implementation, a jurisdiction that fails, as determined by the Attorney General, to substantially implement this subchapter shall not receive 10 percent of the funds that would otherwise be allocated for that fiscal year to the jurisdiction under part A of subchapter V of chapter 46 of this title. (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

5 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. (4) Funding reduction If a jurisdiction does not comply with paragraph (3), then the jurisdiction shall be subject to a funding reduction as specified in subsection (a) of this section....

6 (d) Rule of construction The 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. The Missouri Sex Offender Registration Act (SORA), Mo. Rev. Stat. 589.400, et seq.: Mo. Rev. Stat. 589.400 Registration of certain offenders with chief law officers of county of residence... 1. Sections 589.400 to 589.425 shall apply to:... (7) Any person who is a resident of this state who has, since July 1, 1979,... been found guilty of, or pled guilty to or nolo contendere... under... military jurisdiction to committing... an offense which, if committed in this state, would be a violation... of chapter 566, RSMo, or... has been or is required to register under... federal... law.... 2. Any person to whom sections 589.400 to 589.425 apply shall, within three days of conviction, release from incarceration, or placement upon probation, register with the chief law enforcement official of the county or city not within a county in which such person

7 resides unless such person has already registered in that county for the same offense.... 3. The registration requirements of sections 589.400 through 589.425 are lifetime registration requirements.... --------------------------------- --------------------------------- INTRODUCTION Time and again, this Court consistently has reconfirmed that, when Congress offers the States federal funds under the Spending Clause, U.S. Const. art. I, 8, cl. 1, in exchange for their enacting a Congressionally-desired policy into their law, Congress s request does not compel the States to do anything, but instead merely provides a condition which the state is free at pleasure to disregard or to fulfill. South Dakota v. Dole, 483 U.S. 203, 210 (1987) (quoting Massachusetts v. Mellon, 262 U.S. 447, 482 (1923)). Indeed, this is the bedrock reason Spending Clause requests further[ing] broad policy objectives the Constitution otherwise may not empower Congress to implement, id. at 206, do not themselves violate the Constitution. Barnes v. Gorman, 536 U.S. 181, 186 (2002). Because of this relationship much in the nature of a contract, id., this Court also has held that a state s constitution, as its highest law, logically can preclude a state from implementing Congress s request. North Carolina ex rel. Morrow v. Califano,

8 445 F.Supp. 532 (E.D.N.C. 1977) (three-judge court), aff d mem. 435 U.S. 962 (1978). In the opinion below, however, the Missouri Court of Appeals, echoing two recent decisions of the Supreme Court of Missouri for which certiorari was not sought, turned these previously unquestioned principles entirely on their head. To enable Missouri state officials to circumvent a provision of the state s constitution that controversially had been held to preclude a certain class of previously convicted defendants, including the petitioner, from being forced to register as sex offenders under Missouri s state sex offender registration law, Missouri s courts have held the federal Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. 16901, et seq., a law that use[s] Spending Clause grants to encourage States to adopt its uniform definitions and requirements but does not insist that the States do so, United States v. Kebodeaux, 133 S.Ct. 2496, 2504 (2013) (citing 16925(d)), nonetheless compels Missouri to force this class to register and nullifies the state constitution. No other court in American history ever has held the mere existence of a Spending Clause request to have such a far-reaching, preemptive effect. But both SORNA s plain language and the manner in which this Court uniformly has held the Spending Clause functions contradict the Missouri courts result. SORNA expressly provides its provisions that are cast as directions to jurisdictions or their officials constitute, in relation to States, only

9 conditions required to avoid the reduction of Federal funding under this section. 16925(d). Thus, while SORNA requests the States to require any person convicted of any sexual offense to register as a sex offender under its guidelines, sex offender registration within a state, including whether to implement it at all and, if so, how to do so, remains entirely a matter of state law. Kebodeaux, 133 S.Ct. at 2504. As a result, every other state s court presented with a state constitutional provision precluding forcing a certain class of SORNA-required persons to register has held the state s ability to implement SORNA is subordinate to the state constitution and, thus, SORNA does not compel the state to require the registration. See Doe v. Dep t of Pub. Safety & Corr. Servs., 62 A.3d 123, 544 (Md. 2013); In re C.P., 967 N.E.2d 729, 750 (Ohio 2012); Andrews v. State, 978 N.E.2d 494, 498-502 (Ind. Ct. App. 2012), transfer denied, 985 N.E.2d 339 (Ind. 2013); State v. Hough, 978 N.E.2d 505, 510 (Ind. Ct. App. 2012), transfer denied, 985 N.E.2d 339 (Ind. 2013); State v. Letalien, 985 A.2d 4, 26 (Me. 2009). The decision below and the two other recent Missouri decisions on which it relies create a conflict among the States and with this Court s decisions in Kebodeaux and Morrow on an important federal question, implicating hitherto unquestioned, fundamental constitutional principles of federalism and requiring this Court s resolution. If the Missouri courts are correct, and SORNA s conditional funding request to the States nonetheless somehow is compulsory,

10 even rendering the States constitutions inapplicable to their laws, the heart of this Court s Spending Clause jurisprudence necessarily must be called into question and revisited. --------------------------------- --------------------------------- STATEMENT OF THE CASE In December 1979, when Appellant John Doe was a 21-year-old soldier in the U.S. Army, a court martial convicted him, inter alia, of aiding and abetting sodomy in violation of Article 125 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 925 (App. 3, 11, 15-16). The court martial sentenced Mr. Doe to 35 years in prison (App. 3, 11-12). He was released on parole in July 1990, after which he moved to Reynolds County, Missouri (App. 3, 12). Effective January 1, 1995, the Missouri General Assembly enacted the Sex Offender Registration Act (SORA), Mo. Rev. Stat. 589.400, et seq., which requires any Missouri resident to register as a sex offender who, since July 1, 1979, has been found guilty of... under... military jurisdiction to committing... an offense which, if committed in this state, would be a sexual offense in Missouri. 589.400.1(7). Because this included sodomy under the UCMJ, beginning in 1995 Mr. Doe registered as a sex offender under SORA with the Reynolds County Sheriff. Then, in 2006, on a challenge to SORA by Missouri residents convicted of sexual offenses before

11 1995, the Supreme Court of Missouri held in Doe v. Phillips, 194 S.W.3d 833, 849-52 (Mo. 2006), that applying SORA to persons convicted before 1995 violated the prohibition on any law... retrospective in its operation contained in Mo. Const. art. I, 13. It held SORA is unconstitutionally retrospective in its operation as to persons convicted or pleading guilty prior to its passage, because, as the obligation to register... by its nature imposes a new duty or obligation, based solely upon [a pre-sora offender s pre-sora] criminal conduct, the application of that requirement truly is retrospective in its operation. Id. at 849-52 (emphasis in the original). That is, SORA looks solely at the [pre-1995 offender s] past conduct and uses that conduct not merely as a basis for future decision-making by the state.... Rather, it specifically requires [the offender] to fulfill a new obligation and imposes a new duty to register and to maintain and update the registration regularly, based solely on [his] offens[e] prior to its enactment. This... violates our constitutional bar on laws retrospective in operation. Id. at 852. As a result, Mr. Doe was absolved of any requirement to register under SORA, the Reynolds County Sheriff stopped requiring him to submit to registration, and he was removed from Missouri s sex offender registry. In July 2009, however, Mr. Doe received a letter from the Missouri State Highway Patrol (MSHP)

12 instructing him once again to submit to registration with the Reynolds County Sheriff due to his 1979 conviction. The letter opined that the Supreme Court of Missouri s holding in Doe v. Keathley, 290 S.W.3d 719 (Mo. 2009), had reverse[d] [his] status as an exempt sexual offender and requires [him] to report and register with the sheriff. In Keathley, on a challenge to registration by other Missouri residents convicted of sexual offenses before 1995, the Supreme Court of Missouri had held that SORNA, 42 U.S.C. 16901, et seq., imposes an independent obligation requiring [the plaintiffs in that case] to register as sex offenders which operates irrespective of any allegedly retrospective state law that has been enacted and may be subject to the article I, section 13 ban on the enactment of retrospective state laws. 290 S.W.3d at 720. Mr. Doe responded in September 2009 by filing an action for declaratory and injunctive relief in the Circuit Court of Reynolds County, Missouri, against Respondents Thomas Volner (the Reynolds County Sheriff, tasked by SORA with registering sex offenders in Reynolds County), Robert Johnson (the Reynolds County Prosecutor, tasked by SORA with prosecuting sex offenders who fail to register), and Ron Replogle (the Superintendent of MSHP, tasked by SORA with managing Missouri s sex offender registration regime statewide) (App. 3, 10). Mr. Doe s petition explained that applying SORA to him for his 1979 conviction violated Mo. Const. art. I, 13, as the Supreme Court of Missouri had held in

13 Phillips (App. 3, 10). He sought a declaratory judgment that SORA was unconstitutional as applied to him and injunctive relief prohibiting the defendants from requiring him to register as a sex offender and requiring them to delete any existing registration information of his (App. 3, 10). In July 2011, Mr. Replogle moved for summary judgment, arguing he had a right to judgment as a matter of law because Mr. Doe is required to register as a sex offender under SORNA and thus is required to register in Missouri because he is required to register as a sex offender under federal law (App. 12-14). The trial court granted Mr. Replogle summary judgment and deemed Mr. Doe s claims against the other defendants moot, holding Mr. Doe is required to register as a sex offender pursuant to SORA and SORNA (App. 16-17). Mr. Doe appealed to the Supreme Court of Missouri, which transferred his appeal to the Missouri Court of Appeals, Southern District. Mr. Doe explained to the Court of Appeals that Respondents requiring him to register as a sex offender under SORA for his 1979 conviction violates Mo. Const. art. I, 13, and that the existence of SORNA, which, as this Court had held in Kebodeaux, 133 S.Ct. at 2504, is, as to the States, merely conditional Spending Clause legislation, cannot lawfully obligate Missouri state actors such as Respondents to violate the state constitution. Rather, he explained, even under SORNA, registration in Missouri took place solely under Missouri s state law, SORA, which

14 the Supreme Court of Missouri already had held cannot apply retrospectively to him. Supporting this argument, he cited every reported appellate decision analyzing this question in another state whose constitution has been held to prohibit requiring retrospective (or other SORNArequired) sex offender registration under state law, all of which held SORNA does not obligate state actors to require sex offender registration of state residents that otherwise would violate the state s constitution. See Dep t of Pub. Safety, 62 A.3d at 544; C.P., 967 N.E.2d at 750; Andrews, 978 N.E.2d at 498-502; Hough, 978 N.E.2d at 510; Letalien, 985 A.2d at 26. He also explained, as this Court had held in Morrow, 445 F.Supp. at 532, aff d mem. 435 U.S. at 962, that satisfaction of a state s constitution, as the state s highest law, always preconditions the state s ability to implement a federal spending request such as SORNA. Without distinguishing (or even mentioning) the other states decisions, Kebodeaux, or Morrow, the Missouri Court of Appeals affirmed the trial court s summary judgment (App. 4-6). It held Mr. Doe s obligation to register as a sex offender with Respondents arose from SORNA, not SORA, and therefore did not arise from the enactment of a state law, so the prohibition in Article I, Section 13 of the Missouri Constitution does not apply (App. 5-6). It held SORNA s language in 16925 did not affect this

15 result, because it govern[s] the determination of when states have substantially implemented SORNA and [does] not address when offenders have a duty to register (App. 6) (emphasis in the original). --------------------------------- --------------------------------- REASONS FOR GRANTING THE WRIT The Court should grant certiorari in this case to resolve the split among the States that the Missouri Court of Appeals decision below furthers as to SORNA s effect on a state constitutional provision precluding the state from forcing certain individuals to register as sex offenders under state law. Does SORNA, which, as to the States, is conditional Spending Clause legislation, somehow trump the States constitutions, as the Missouri Court of Appeals held in this case, or does it lack any preemptive effect, as both SORNA s plain language provides and all other states courts to address this question have held? The entirety of this Court s Spending Clause jurisprudence involving the States holds that Spending Clause legislation cannot obligate any state to do anything. In Kebodeaux, 133 S.Ct. at 2504, this Court specifically held SORNA is exactly this species of legislation, as it merely use[s] Spending Clause grants to encourage States to adopt its uniform definitions and requirements. It [does] not insist that the States do so. As a result, and as this Court

16 previously held for another Spending Clause act in Morrow, 445 F.Supp. at 532, aff d mem. 435 U.S. at 962, a state s constitution plainly can preclude a state from performing actions SORNA may request of the state, because sex offender registration in all states, including whether to require it at all and how to implement it, is entirely a product of state law, not SORNA. All previous decisions, state and federal, as to the interplay of a federal Spending Clause act (including specifically SORNA) and a state constitution have held the state s ability to implement the Spending Clause law is predicated on whether it can do so within the bounds of its own constitution. In holding the opposite in this case, the Missouri Court of Appeals has created a split on this question with other states, in conflict with this Court s well-established Spending Clause jurisprudence and especially with its decisions in Kebodeaux and Morrow. The Court should grant certiorari and resolve these conflicts by reaffirming that SORNA s existence does not provide an out for states to circumvent their own constitutions.

17 I. This Court should resolve the split among the States as to whether SORNA obligates a state to require a person to register as a sex offender when the state s constitution otherwise precludes him from being forced to register under state law. SORNA defines a sex offender as any individual who was convicted of a sex offense. 42 U.S.C. 16911(1). It states [e]ach jurisdiction shall maintain a jurisdiction-wide sex offender registry conforming to [its] requirements, 16912(a), including provid[ing] a criminal penalty... for the failure of a sex offender to comply with [its] requirements.... 16913(e). It requires all sex offenders to register, and keep the registration current, in each jurisdiction where the offender resides, 16913(a), and provides that an appropriate official shall... ensure that the sex offender is registered. 16917(a). Then, however, SORNA carefully and deliberately makes plain that, when the jurisdiction is a state, it is not actually requiring the state to do anything. Instead, it merely makes the state s failure to implement SORNA result in a reduction of federal law enforcement funds. SORNA states its [r]ule of construction is that its provisions... 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. 16925(d). That is, any state that fails, as determined by the Attorney General, to substantially implement this

18 subchapter shall not receive 10 percent of the funds that would otherwise be allocated for that fiscal year to the jurisdiction in Byrne Grants under the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. 3750 through 3758. Id. at (a). Section 16925 even recognizes a jurisdiction [may be] unable to substantially implement SORNA s terms because of a demonstrated inability to implement certain provisions that would place the jurisdiction in violation of its constitution, and allows the Attorney General to determine that the jurisdiction is in compliance anyway. Id. at (b)(1) and (3). Therefore, SORNA plainly just use[s] Spending Clause grants to encourage States to adopt its uniform definitions and requirements. It [does] not insist that the States do so. Kebodeaux, 133 S.Ct. at 2504 (emphasis added). In Kebodeaux, this Court reviewed whether, in another part of SORNA, 18 U.S.C. 2250(a), Congress constitutionally could create a federal criminal penalty (implemented by federal authorities in federal court) for a sex offender who failed to register in a state where SORNA required it. Id. at 2500. The majority held this part of SORNA was permissible as part of Congress authority under the Military Regulation and Necessary and Proper Clauses. Id. at 2505. As to the States, however, the majority was careful to note that SORNA s directions were not under those clauses, but instead were under the Spending Clause and did not mandate anything of the States. Id. at 2504-05 (quoting 16925(d)). Justice Thomas s

19 dissent agreed that, as to the States, SORNA is merely Spending Clause legislation under which federal funding and logistical support [is] offered to States for their sex-offender-registration-and-notification programs. Id. at 2512 (Thomas, J., dissenting). This holding, then, was unanimous. A. Every other state s court to analyze SORNA s effect on a state constitutional provision precluding the state from requiring certain SORNA-required persons to register has held registration remains a matter of state law that first must satisfy the state s constitution. As a result, in four other states Indiana, Maine, Maryland, and Ohio where some provision of the state s constitution has been held to preclude state officials from requiring a certain class of sex offender to register under state law who SORNA otherwise requires to register, the courts uniformly have held SORNA does not undo that preclusion. Dep t of Pub. Safety, 62 A.3d at 544; C.P., 967 N.E.2d at 750; Andrews, 978 N.E.2d at 498-502; Hough, 978 N.E.2d at 510; Letalien, 985 A.2d at 26. In Letalien, a defendant convicted of a sexual offense in 1996 was subjected to Maine s state sex offender registration requirements as they then existed, including a duty to register for 15 years. 985 A.2d at 7-8. In 1999, the Maine Legislature repealed the previous registration law and enacted a new one, to be applied retroactively, lengthening the

20 defendant s registration period to his whole life. Id. at 10. When, years later, the defendant did not register, he was arrested and charged with violation of the 1999 law. Id. at 11. The Maine Supreme Court held the prosecution violated the Ex Post Facto Clause of Me. Const. art. I, 11, because the state could not retroactively force the defendant to register under the 1999 law for his 1996 offense. Id. at 26. The state had argued the defendant had to register independently under SORNA, despite the state constitution, because SORNA classified him as a tier II sex offender, making him subject to a twenty-five year registration period.... Id. at 23 n.12. The court held this did not matter: regardless of what SORNA federally requested the state to do, the defendant s registration was under state law, governed by the state constitution, and SORNA, itself, provided that a state may be unable to substantially implement its terms because of a demonstrated inability to implement certain provisions that would place the [state] in violation of its constitution, as determined by a ruling of the [its] highest court. Id. at 27 (Silver, J., concurring) (quoting 16925(b)(1)). The Ohio Supreme Court held the same in C.P., 967 N.E.2d at 729, when it held the prohibition on cruel and unusual punishment in Ohio Const. art. I, 9, precluded the state from requiring a juvenile convicted of a sexual offense to register as a sex offender. The court held that, while SORNA required this same registration, SORNA merely directed that

21 states that did not adopt its terms risked losing ten percent of certain federal crime-control funds that otherwise would be allocated to them. Id. at 738-39. Thus, sex offender registration in Ohio, even under SORNA, was still a matter of state law, and the state constitution therefore could and did preclude the SORNA-requested registration of juvenile offenders under that state law. Id. at 744-45. Two Indiana Court of Appeals decisions, Hough and Andrews, held this even more forcefully. Previously, in Wallace v. State, 905 N.E.2d 371, 384 (Ind. 2009), the Supreme Court of Indiana had held the Ex Post Facto Clause of Ind. Const. art. 1, 24, precluded Indiana state officials from applying the Indiana Sex Offender Registration Act (INSORA) retroactively to persons convicted of sexual offenses before its 1994 enactment. In both Hough and Andrews, the state argued that, because a person absolved from registration under the Indiana Constitution in Wallace also ha[d] an independent duty to register under SORNA, Indiana state officials were obligated to require the person to register anyway. Hough, 978 N.E.2d at 510-11; Andrews, 978 N.E.2d at 498-99. Because SORNA is Spending Clause legislation, however, the Indiana Court of Appeals disagreed: Rather than establishing a federal agency to implement [SORNA], Congress, through its spending power, Article I, Section 8, directed all states and the District of Columbia to create local registries that comply with specific national standards. Andrews, 978 N.E.2d at 498. Even [t]he U.S. Department of Justice

22 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, and also acknowledges that despite SORNA, a jurisdiction should not register an offender unless the offender is required to register under the jurisdiction s laws. Id. at 502 n.7 (citing Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, U.S. Department of Justice, Sex Offender Registration and Notification in the United States: Current Case Law and Issues (July 2012)). Moreover, SORNA, itself, acknowledg[ed] that some [of its] provisions... may not pass state constitutional muster.... Id. at 502 n.8 (quoting 16925). Thus, while [the pre-insora offender] may have a federal duty to register... and could be subject to prosecution in federal district court... if he fails to do so, this is not the issue before us. Id. at 502; accord Hough, 978 N.E.2d at 510. Regardless of SORNA and its federal law implications enforceable by federal authorities, any person convicted of a sex offense... before Indiana enacted INSORA was entitled to removal of his name from Indiana s sex offender registry.... Id.; accord Hough, 978 N.E.2d at 510. Finally, the Maryland Court of Appeals held the same in Dep t of Pub. Safety, in which it also held applying Maryland s state registration law retroactively to persons convicted of sexual offenses before its enactment violated the Ex Post Facto Clause of

23 Md. Const. Declaration of Rights art. 17. 62 A.3d at 544. The state contend[ed]... that... SORNA... imposes upon Petitioner an independent obligation to register as a Tier III sex offender... assert[ing] that this Court cannot grant Petitioner the relief he seeks, an order exempting [Petitioner] from an obligation to register as a Tier III sex offender. Id. The court disagreed. As, under SORNA, sex offender registration remained entirely a matter of state law, the petitioner was challenging his registration requirements imposed by Maryland law, not federal law. Id. Thus, the question of whether Petitioner is required to comply with federal law and what is required of Petitioner to comply was irrelevant. Id. B. Missouri conflicts with all the other states, holding instead that SORNA requires Missouri to force all persons SORNA defines as sex offenders to register in Missouri and nullifies the Missouri Constitution s provision otherwise precluding the state from requiring persons convicted of sexual offenses before 1995 to register under Missouri law. Missouri is the only state whose courts have departed from the other states observation that, as sex offender registration under SORNA remains wholly a matter of state law, any sex offender registration requirement a state enacts and applies under that state law first must satisfy the terms of the

24 state s constitution. Instead, particularly in the decision below, Missouri s courts have held that, as SORNA places an obligation enforceable by federal authorities in federal courts on SORNA-designated sex offenders to register, SORNA therefore compels Missouri state actors to require those persons to register, and the Constitution of Missouri does not apply (App. 5-6). Essentially, Missouri s courts, as in the decision below, have held that, under SORNA, sex offender registration in Missouri is not a matter of state law, but rather of mandatory federal law. Not only is this reading entirely at odds with SORNA s plain language, but it conflicts with what every other court to decide this question has held. In Keathley in 2009, without analyzing either federal preemption, SORNA s express rule of construction in 16925(d), or the Spending Clause, the Supreme Court of Missouri held simply (and in one paragraph) that Missouri residents convicted of sexual offenses before 1995, when Missouri enacted SORA, and whose registration requirement under SORA previously was held in Phillips, 194 S.W.3d at 849-52 to violate Mo. Const. art. I, 13, are subject to the independent, federally mandated registration requirements under [SORNA]. SORNA provides, inter alia, that [a] sex offender shall register... in each jurisdiction where the offender resides. Therefore, SORNA imposes an independent obligation requiring [Missouri-resident sex

25 offenders convicted before 1995] to register as sex offenders in Missouri. The independent registration requirement under SORNA operates irrespective of any allegedly retrospective state law that has been enacted and may be subject to the article I, section 13 ban on the enactment of retrospective state laws. 290 S.W.3d at 720 (internal citations omitted) (emphasis added). 1 Keathley s holding that SORNA s registration requirement requires Missouri to require all SORNArequired persons to register irrespective of any allegedly retrospective state law that has been enacted is simply unsupportable by SORNA s own plain language. SORNA s express rule of construction is that its provisions... that are cast as directions to jurisdictions or their officials constitute, in relation to States, including Missouri, only conditions required to avoid the reduction of Federal funding under this section. 16925(d). As the Maine, Ohio, Indiana, and Maryland courts recognized in the decisions discussed above, not only does SORNA not operate without having been implemented by a state law, but, indeed, and as the Department of Justice itself has agreed, supra, SORNA s applicability within a state is dependent on the state implementing its terms in its state law. If Missouri had never enacted any sex offender registration law, then, regardless of SORNA, 1 The respondents in Keathley did not seek a writ of certiorari from this Court.

26 Missouri simply would not have any authority to require anyone to register. SORNA, standing alone without a state law implementing it, could not provide independent authority for states to register persons as sex offenders. Thereafter, and pending the Missouri Court of Appeals decision in this case, this issue again was brought to the Supreme Court of Missouri in Roe v. Replogle, 408 S.W.3d 759 (Mo. 2013). There, a Missouri resident convicted of a sexual offense before 1995 argued SORNA contemplates yielding to the Missouri Constitution on the question of whether preact offenders must register because Missouri s constitution prohibits the passage of laws retrospective in their operation. Id. at 767. The court dismissed this, stating SORNA s guidelines, including 16925(b), merely describe when a state is deemed to substantially comply with SORNA to be eligible for federal funding. They address the adequacy of a state s effort to implement and enforce SORNA, rather than the obligation of offenders to register. It is irrelevant whether SORNA mandates Missouri to register pre- [SORA] offenders because SORNA s registration requirement applies to all individuals convicted of a sex offense. Id. at 768. The court held the Missouri Constitution is not implicated when, as in this case, the state registration requirement is based on an independent federal registration requirement, and thus 16925(b) provides no relief to [the offender] because Missouri

27 may require him to register under SORNA without violating its own constitution. Id. at 769. 2 In its decision in this case, the Missouri Court of Appeals repeated the Supreme Court of Missouri s holdings in Keathley and Replogle and held requiring Mr. Doe to register did not violate Mo. Const. art. I, 13, because his obligation to register as a sex offender did not arise from SORA, but rather SORNA, so the prohibition in Article I, Section 13 of the Missouri Constitution does not apply (App. 5-6). It held SORNA s rule of construction in 16925(d) did not change this result, because that language govern[s] the determination of when states have substantially implemented SORNA and [does] not address when offenders have a duty to register (App. 6) (emphasis in the original). Missouri s notion that its authority to require the offender to register is under SORNA, rather than under its state law, simply cannot be supported by SORNA s own express terms as every other state to analyze this question readily has held. SORNA leaves it squarely up to Missouri whether Missouri s state laws will implement its terms. Standing alone, SORNA does not force, obligate, or insist, Kebodeaux, 133 S.Ct. at 2504, that Missouri do anything 2 Justice Alito granted the appellant in Replogle an extension of time in which to file a petition for writ of certiorari, see Roe v. Replogle, No. 13A647 (U.S. Dec. 23, 2013) (until January 29, 2014), but he never filed one.

28 at all. Even under SORNA, Missouri should not register an offender unless the offender is required to register under the jurisdiction s laws. Andrews, 978 N.E.2d at 502 n.7. And because sex offender registration remains purely a matter of state law, Congress carefully provided in SORNA that some [of its] provisions... may not pass state constitutional muster.... Id. at 502 n.8. For, logically, as SORNA leaves registration a matter of state law, a state s constitution, its highest law, must first allow the state to apply a state statute implementing its requests. As a result of these Missouri decisions up through the opinion below, there now exists a split among the States on this federal question, requiring this Court s resolution. 3 Does SORNA obligate a state to require persons to register as sex offenders who its own constitution would not allow it to under its own state laws, as Missouri has held? Or, as every other state has held, and SORNA itself provides, are SORNA s directives to the States merely a Spending Clause request that, for a state to implement under its own 3 In their briefs in three of the other states cases discussed above that were argued after the Supreme Court of Missouri decided Keathley, the states invoked Keathley and argued for its result. See Brief of Appellant, State v. Hough, 978 N.E.2d 505 (Ind. Ct. App. 2012) (No. 64A05-1203-MI-113), 2011 WL 8251834; Brief of Appellee, Andrews v. State, 978 N.E.2d 494 (Ind. Ct. App. 2012) (No. 29A02-1112-MI-1166), 2012 WL 2848556; Brief of Respondent, Doe v. Dep t of Pub. Safety & Correctional Servs., 62 A.3d 123 (Md. 2013) (No. 125), 2012 WL 3791643. In holding otherwise, those courts rejected following Keathley.

29 laws, first must pass muster under the state s constitution? This is an important federal question ripe for this Court s resolution. While [a]ll 50 states have... enact[ed] sex offender registration laws, Kebodeaux, 133 S.Ct. at 2513 n.2 (Thomas, J., dissenting), in recent years progressively more states have held that, under their state constitutions, some aspects of this registration are impermissible. See, e.g., Phillips, 194 S.W.3d at 849-52 (forcing persons to register who were convicted before state enacted registration law violates Missouri Constitution); Letalien, 985 A.2d 26 (same under Maine Constitution); Wallace, 905 N.E.2d at 384 (same under Indiana Constitution); C.P., 967 N.E.2d at 750 (forcing persons to register who were convicted as juveniles violates Ohio Constitution); Dep t of Pub. Safety, 62 A.3d at 544 (forcing persons to register who were convicted before state enacted registration law violated Maryland Constitution); Starkey v. Okla. Dep t of Corr., 305 P.3d 1004, 1030 (Okla. 2013) (same under Oklahoma Constitution). In the near future, more states courts undoubtedly and increasingly will come to similar conclusions. As a result, whether SORNA has some kind of preemptive effect on a state constitutional provision precluding certain SORNA-required persons from being required to register under state law is likely to keep arising. Missouri s split from all other states in answering this question creates uncertainty and conflict that this Court can and should resolve now.

II. 30 This Court should intervene and re-clarify whether, as it previously held in North Carolina ex rel. Morrow v. Califano, a state s ability to implement a federal Spending Clause request is preconditioned on the state s constitution allowing it to do so. Beyond that split with the other states as to the meaning and effect of SORNA, the opinion below and the previous Missouri decisions in Keathley and Replogle also read the interplay between Spending Clause legislation and a state s constitution drastically opposite what any other court ever has held. Until now, American law uniformly has been that, within a state, a federal Spending Clause policy request always is subordinate to the state s constitution, which can preclude (and on occasion has precluded) the state from implementing it. In holding SORNA obligated Missouri to require all persons SORNA defines as sex offenders to register, its own constitution notwithstanding, however, the Missouri courts have reached a contrary conclusion that equally requires this Court s intervention. Congress may not simply commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program. New York v. United States, 505 U.S. 144, 161 (1992) (citation omitted). For, While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to

31 govern according to Congress instructions. Id. at 162. Instead, when Congress wishes to extend the federal government s power into a domain otherwise governed by the States, the Constitution gives it two general choices of authority under which to do so: the Commerce Clause, U.S. Const. art. I, 8, cl. 3, or the Spending Clause, art. I, 8, cl. 1. Id. at 157-59. While acts of Congress under the Commerce Clause are limited to regulating those activities that constitute commerce among the several states, Congress s power under the Spending Clause is not limited by the direct grants of legislative power found in the Constitution. Thus, objectives not thought to be within Article I s enumerated legislative fields may nevertheless be attained through the use of the spending power and the conditional grant of federal funds. Dole, 483 U.S. at 207 (quoting United States v. Butler, 297 U.S. 1, 66 (1936)). In other words, the Spending Clause allows Congress to purchase what it lacks the authority to compel. Citizens for Honesty and Integrity in Reg l Planning v. Cnty. of San Diego, 258 F.Supp.2d 1132, 1136 (S.D.Cal. 2003), vacated on other grounds, 399 F.3d 1067 (9th Cir. 2005). The modern exemplification of this is Dole. While Congress could not commandeer the States legislatures and force all states to make their minimum drinking ages 21, it enacted a law withhold[ing] a percentage of federal highway funds otherwise allocable from States who failed to do so. 483 U.S. at 205 (citation omitted). When South Dakota, which allowed 19-year-olds to purchase beer, argued this