Correy E. Stephenson, Special To Missouri Lawyers Media
The constitutional validity of the sex offender registry act was before the Missouri Supreme Court on May 14 in a case involving a defendant whose record has been closed.
In 1997, John Doe pleaded guilty to sexual assault and deviate sexual assault, for which the circuit court suspended imposition of sentence and placed him on probation for five years.
Doe began registering as a sex offender in August 1997 and continues to do so. He completed his probation and the circuit court ordered the records of his offenses be closed.
In 2021, Doe sued the St. Louis County sheriff and the state highway patrol superintendent seeking declaratory and injunctive relief. He argued that being required to register under the sex offender registry act violates his right to privacy and substantive due process because his criminal records are not publicly available pursuant to statute.
He also argued that the Missouri Sexual Offender Registration Act (MO-SORA) registration regime violates substantive due process protections and constitutes an impermissible ex post facto law.
Following a hearing, the circuit court denied Doe declaratory and injunctive relief, finding that the registration requirements did not violate his constitutional rights and do not constitute ex post facto laws.
Doe appealed.
On behalf of Doe, Trimble attorney Frederick A. Duchardt, Jr. presented the court with a three-prong argument. First, he said MO-SORA violates fundamental privacy rights with regard to information about guilty pleas that were public but made private, an issue that wasn’t decided in in the 2006 Doe v. Phillips case.
“These are records that are private and the only way the registry gets them is for John Doe to report regularly,” he said.
When asked about the situation where an applicant to the Missouri bar is still required to disclose records that have been made private, Duchardt distinguished the hypothetical, as his client must “broadcast to the world over the internet.”
In another substantive due process violation, Duchardt argued that having non-dangerous persons on the registry is counterproductive and not doing anything to further the interests of the state.
“We are not advocating for an absolute right of privacy, but we are saying that the state must show a compelling state interest that is served by, and a narrow tailoring of, the particular restriction,” he argued. “In light of John Doe’s lack of dangerousness, having him register for life under the system is not a narrow tailoring and is not even serving a compelling state interest.”
The problem with the statute, Duchardt added, “is that we’ve taken an idea and gone way too far with it. Yes, we want to protect children, but do we do that by violating the law?”
Finally, he told the court that the statute contains ex post factor prohibitions, as amendments were made to the law in 2018 to require registration in person and the posting of information on the internet, among other changes.
On behalf of the sheriff, Steven Ebert II of the St. Louis County counselor’s office in Clayton contended that Doe had not provided enough evidence, facts, support or changes to MO-SORA for the court to overturn almost two decades of precedent.
When queried about whether there was credence to Doe’s argument that he was no longer a threat and therefore his registration didn’t serve a compelling state interest, Ebert responded that the Missouri legislature decides the registration tiers, specifically which type of convicted defendants must register and for how long.
“The County’s position is that the state legislature knows the needs of its constituents and has created a proper tier system and requirements,” he said.
Richard Groenaman of the Attorney General’s office in St. Louis represented the patrol.
The statute contains an exception found at Section 610.120.1 that permits certain closed records to be accessible to the general public, he told the court, referencing the earlier question about application to the Missouri bar for the proposition that closed records can be distributed in certain circumstances.
Groenaman also argued that Doe could not claim a right to privacy in information that the court ordered him to disclose.
“The court did not terminate the requirement to register when probation ended,” he noted. “Therefore, because the information is and has been in the public domain, the disclosure of this information does not rise to the level of violating a fundamental right to privacy.”
Groenaman did not receive any questions from the court.
After the oral argument, Duchardt said the legislature has gone too far.
“Right now in the state of Missouri, the laws have gotten so out of control that they are nothing like the original registry laws that were enacted when the Missouri Supreme Court reviewed the matter back in 2005 and 2006,” he said.
Other states are revisiting similar issues, Duchardt noted, and two state supreme courts — the Michigan Supreme Court and the Pennsylvania Supreme Court — have found analogous laws to be violations of the ex post facto clause, while the Alaska and South Carolina Supreme Courts have struck down registry laws as violative of the substantive due process provisions.
The Office of the Attorney General did not respond to a request for comment.
The case is John Doe v. Eric T. Olson, et al., No. SC100296.
