September 10, 2003
Glenn A. Brenner
Pennington County State's Attorney
300 Kansas City St.
Rapid City, SD 57701
OFFICIAL OPINION NO. 03-05
Public Disclosure of Juvenile Sex Offenders
Dear Mr. Brenner:
You have requested an opinion of this office based on the following facts:
FACTS:
The Rapid City Police Department maintains a list or "Offender Index" of all sex offenders who are required to register in Pennington County under state law. The Index is posted in the Pennington County Sheriff's Department and is distributed to individuals upon request. Included in the Index are names of juveniles who have been adjudicated under the rape statutes and who are fifteen years of age or older. Traditionally, state confidentiality laws restrict the public disclosure of information regarding adjudications of juveniles.
Based on the foregoing facts, you ask the following question:
QUESTION:
Notwithstanding confidentiality laws governing juvenile court matters, may the custodian of a sex offender registry publicly disclose registration information pertaining to juveniles fifteen years of age or older who have been adjudicated of a sex crime and are required by law to register?
Your question requires the application of well-recognized principles of statutory construction. As the South Dakota Supreme Court stated in City of Rapid City v. Anderson:
Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject. But, in construing statutes together it is presumed that the legislature did not intend an absurd or unreasonable result. When the question is which of two enactments the legislature intended to apply to a particular situation, terms of a statute relating to a particular subject will prevail over the general terms of another statute.
2000 S.D. 77, ¶ 7, 612 N.W.2d 289, 291-92.
As you point out, South Dakota law affords certain confidentiality protections to juveniles adjudicated in juvenile court. For example, SDCL 26‑7A‑27 prohibits the public disclosure of law enforcement records regarding adjudicated juveniles (except in certain circumstances not pertinent here). Further, SDCL 26‑7A‑28 prohibits the release of information on the identity of an adjudicated juvenile (except in certain circumstances not pertinent here). See also SDCL 26‑7A‑36 (juvenile court hearings closed to public except in certain circumstances). The confidentiality of juvenile court matters has been in existence, in some form, for many years. See 1919 Rev. Code § 9972 (name of juvenile shall not be published in newspaper); SL 1968 ch. 164, § 14 (precursor to SDCL §§ 26‑7A‑27 and 26‑7A‑28). Clearly, the Legislature has determined that public policy justifies protecting juvenile cases from public disclosure, in most instances. But see SDCL 26‑7A‑36 (allowing disclosure and open hearings for adjudications of juveniles sixteen years or older for violent or drug crimes).
On the other hand, the Legislature has also enacted laws requiring individuals convicted of sex crimes to register as sex offenders in the communities where they reside, work, or attend school. SDCL 22‑22‑31. In 1997, the Legislature amended SDCL 22‑22‑31 to add the requirement that any "juvenile fifteen years of age or older adjudicated of a sex crime, as defined in subdivisions 22‑22‑30(1) or (9), or of felony sexual contact, as defined in § 22‑22‑7.2" shall also be required to register. See SL 1997 ch. 135, § 1. There are, therefore, three crimes for which adjudicated juveniles who are at least fifteen years of age must register: rape (in any degree) under § 22‑22‑1; promotion of prostitution of a minor under § 22‑23‑2(2); and felony sexual contact with a person incapable of consenting under § 22‑22‑7.2. The sex offender registration law provides no exceptions to registration. Furthermore, the law requires that registration information must include, inter alia, the offender's name and type of crime committed. SDCL 22‑22‑32.
By law, sex offender information collected by local law enforcement registering agencies is subject to public disclosure, with only two specific exceptions. SDCL 22‑22‑40, enacted in 1995, states:
Registration records collected by local law enforcement agencies pursuant to this chapter, registration lists provided to local law enforcement by the Division of Criminal Investigation, and records collected by institutions pursuant to § 22‑22‑38 for those persons required to register under the provisions of §§ 22‑22‑30 to 22‑22‑39 are public records as provided in chapter 1‑27.
Nothing in this section allows the release of the name or any identifying information regarding the victim of the crime to any person other than law enforcement agencies, and such victim identifying information is confidential.
Additionally, in 2003 the Legislature mandated that registration information must include the offender's social security number, but that number is to be kept on a separate confidential form. SDCL 22‑22‑32(6). Thus, other than victim information and the registrant's social security number, there are no statutory exceptions to the public disclosure requirement of the sex offender registration laws.
Applying the rules of statutory construction, I am of the opinion that the law not only allows, but requires, the public disclosure of all registered sex offenders, including juveniles who are mandated by law to register. To the extent this may be inconsistent with the general confidentiality statutes governing juvenile proceedings, I believe the terms of the specific statutes applicable to registration and public disclosure of sex offenders must prevail over the general terms of the laws regarding juvenile court proceedings. City of Rapid City, 2000 S.D. 77, ¶ 7, 612 N.W.2d at 292.
Further, it is presumed that the Legislature was mindful of the previously enacted (and long-standing) juvenile confidentiality laws when it amended SDCL 22‑22‑31 to require juveniles to register, and made no exception for juvenile registrants in the public disclosure statute (SDCL 22‑22‑40). See Faircloth v. Raven Industries, Inc., 2000 S.D. 158, ¶ 9, 620 N.W.2d 198, 202; Meyerink v. Northwestern Public Service Co., 391 N.W.2d 180, 184 (S.D. 1986).
Obviously, the Legislature has demonstrated its intent that all sex offender registrants be publicly disclosed. This policy is a valid one, as the whole purpose behind the registration laws is to protect the public by giving notification of sex offenders in the community. See Meinders v. Weber, 2000 S.D. 2, 64 N.W.2d 255. As the United States Supreme Court warned, "[s]ex offenders are a serious threat in this Nation." Connecticut Department of Public Safety v. Doe, 123 S.Ct. 1160, 1163 (2003). The need of the public to be aware of sex offenders in the community is not diminished by the offender's age. It would defeat the purpose of the registration statutes to say that a juvenile offender must register (under SDCL 22‑22‑31), but that his or her name cannot be publicly disclosed. That interpretation is contrary to the plain language of the sex offender registration laws, and produces an unreasonable and absurd result. City of Rapid City, 2000 S.D. 77, ¶ 7, 612 N.W.2d at 292. This, in my opinion, is something the Legislature did not intend.
For all the foregoing reasons, the answer to the question is "Yes."
Respectfully submitted,
LARRY LONG
ATTORNEY GENERAL
LEL/PA/dh
September 10, 2003
Glenn A. Brenner
Pennington County State's Attorney
300 Kansas City St.
Rapid City, SD 57701
OFFICIAL OPINION NO. 03-05
Public Disclosure of Juvenile Sex Offenders
Dear Mr. Brenner:
You have requested an opinion of this office based on the following facts:
FACTS:
The Rapid City Police Department maintains a list or "Offender Index" of all sex offenders who are required to register in Pennington County under state law. The Index is posted in the Pennington County Sheriff's Department and is distributed to individuals upon request. Included in the Index are names of juveniles who have been adjudicated under the rape statutes and who are fifteen years of age or older. Traditionally, state confidentiality laws restrict the public disclosure of information regarding adjudications of juveniles.
Based on the foregoing facts, you ask the following question:
QUESTION:
Notwithstanding confidentiality laws governing juvenile court matters, may the custodian of a sex offender registry publicly disclose registration information pertaining to juveniles fifteen years of age or older who have been adjudicated of a sex crime and are required by law to register?
Your question requires the application of well-recognized principles of statutory construction. As the South Dakota Supreme Court stated in City of Rapid City v. Anderson:
Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject. But, in construing statutes together it is presumed that the legislature did not intend an absurd or unreasonable result. When the question is which of two enactments the legislature intended to apply to a particular situation, terms of a statute relating to a particular subject will prevail over the general terms of another statute.
2000 S.D. 77, ¶ 7, 612 N.W.2d 289, 291-92.
As you point out, South Dakota law affords certain confidentiality protections to juveniles adjudicated in juvenile court. For example, SDCL 26‑7A‑27 prohibits the public disclosure of law enforcement records regarding adjudicated juveniles (except in certain circumstances not pertinent here). Further, SDCL 26‑7A‑28 prohibits the release of information on the identity of an adjudicated juvenile (except in certain circumstances not pertinent here). See also SDCL 26‑7A‑36 (juvenile court hearings closed to public except in certain circumstances). The confidentiality of juvenile court matters has been in existence, in some form, for many years. See 1919 Rev. Code § 9972 (name of juvenile shall not be published in newspaper); SL 1968 ch. 164, § 14 (precursor to SDCL §§ 26‑7A‑27 and 26‑7A‑28). Clearly, the Legislature has determined that public policy justifies protecting juvenile cases from public disclosure, in most instances. But see SDCL 26‑7A‑36 (allowing disclosure and open hearings for adjudications of juveniles sixteen years or older for violent or drug crimes).
On the other hand, the Legislature has also enacted laws requiring individuals convicted of sex crimes to register as sex offenders in the communities where they reside, work, or attend school. SDCL 22‑22‑31. In 1997, the Legislature amended SDCL 22‑22‑31 to add the requirement that any "juvenile fifteen years of age or older adjudicated of a sex crime, as defined in subdivisions 22‑22‑30(1) or (9), or of felony sexual contact, as defined in § 22‑22‑7.2" shall also be required to register. See SL 1997 ch. 135, § 1. There are, therefore, three crimes for which adjudicated juveniles who are at least fifteen years of age must register: rape (in any degree) under § 22‑22‑1; promotion of prostitution of a minor under § 22‑23‑2(2); and felony sexual contact with a person incapable of consenting under § 22‑22‑7.2. The sex offender registration law provides no exceptions to registration. Furthermore, the law requires that registration information must include, inter alia, the offender's name and type of crime committed. SDCL 22‑22‑32.
By law, sex offender information collected by local law enforcement registering agencies is subject to public disclosure, with only two specific exceptions. SDCL 22‑22‑40, enacted in 1995, states:
Registration records collected by local law enforcement agencies pursuant to this chapter, registration lists provided to local law enforcement by the Division of Criminal Investigation, and records collected by institutions pursuant to § 22‑22‑38 for those persons required to register under the provisions of §§ 22‑22‑30 to 22‑22‑39 are public records as provided in chapter 1‑27.
Nothing in this section allows the release of the name or any identifying information regarding the victim of the crime to any person other than law enforcement agencies, and such victim identifying information is confidential.
Additionally, in 2003 the Legislature mandated that registration information must include the offender's social security number, but that number is to be kept on a separate confidential form. SDCL 22‑22‑32(6). Thus, other than victim information and the registrant's social security number, there are no statutory exceptions to the public disclosure requirement of the sex offender registration laws.
Applying the rules of statutory construction, I am of the opinion that the law not only allows, but requires, the public disclosure of all registered sex offenders, including juveniles who are mandated by law to register. To the extent this may be inconsistent with the general confidentiality statutes governing juvenile proceedings, I believe the terms of the specific statutes applicable to registration and public disclosure of sex offenders must prevail over the general terms of the laws regarding juvenile court proceedings. City of Rapid City, 2000 S.D. 77, ¶ 7, 612 N.W.2d at 292.
Further, it is presumed that the Legislature was mindful of the previously enacted (and long-standing) juvenile confidentiality laws when it amended SDCL 22‑22‑31 to require juveniles to register, and made no exception for juvenile registrants in the public disclosure statute (SDCL 22‑22‑40). See Faircloth v. Raven Industries, Inc., 2000 S.D. 158, ¶ 9, 620 N.W.2d 198, 202; Meyerink v. Northwestern Public Service Co., 391 N.W.2d 180, 184 (S.D. 1986).
Obviously, the Legislature has demonstrated its intent that all sex offender registrants be publicly disclosed. This policy is a valid one, as the whole purpose behind the registration laws is to protect the public by giving notification of sex offenders in the community. See Meinders v. Weber, 2000 S.D. 2, 64 N.W.2d 255. As the United States Supreme Court warned, "[s]ex offenders are a serious threat in this Nation." Connecticut Department of Public Safety v. Doe, 123 S.Ct. 1160, 1163 (2003). The need of the public to be aware of sex offenders in the community is not diminished by the offender's age. It would defeat the purpose of the registration statutes to say that a juvenile offender must register (under SDCL 22‑22‑31), but that his or her name cannot be publicly disclosed. That interpretation is contrary to the plain language of the sex offender registration laws, and produces an unreasonable and absurd result. City of Rapid City, 2000 S.D. 77, ¶ 7, 612 N.W.2d at 292. This, in my opinion, is something the Legislature did not intend.
For all the foregoing reasons, the answer to the question is "Yes."
Respectfully submitted,
LARRY LONG
ATTORNEY GENERAL
LEL/PA/dh
