People ex rel. Z.B.

2008 SD 108, 757 N.W.2d 595, 2008 S.D. LEXIS 147
CourtSouth Dakota Supreme Court
DecidedNovember 5, 2008
DocketNo. 24619
StatusPublished
Cited by8 cases

This text of 2008 SD 108 (People ex rel. Z.B.) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People ex rel. Z.B., 2008 SD 108, 757 N.W.2d 595, 2008 S.D. LEXIS 147 (S.D. 2008).

Opinions

SABERS and KONENKAMP, Justices.

[¶ 1.] Z.B. admitted in juvenile court to committing two first degree rapes. At the time of these offenses, he was fifteen. He was court ordered to register as a sex offender. South Dakota law requires that Z.B. remain on the sex offender registry for life. Adults who commit the same offense may be able to have their names removed from the registry if they obtain a suspended imposition of sentence. There is no equivalent opportunity for juvenile offenders like Z.B. Accordingly, under the Equal Protection Clauses of the United States Constitution and the South Dakota Constitution, Z.B. and similarly situated juveniles are denied equal protection. We reverse.

I.

[¶2.] At the time of the rapes, Z.B. was fifteen years old and residing with his adoptive parents. His adoptive parents had two biological children, G.B., a nine-year-old girl and W.B., an eight-year-old boy. The remainder of the family consists of two other adopted girls, K.B., seven years old, and M.B., four years old.

[¶ 3.] One night, Z.B. was watching the children while the parents were at a meeting. When the parents returned home, G.B. told them that Z.B. tried to “sex her.” On January 18, 2007, a petition was filed that alleged Z.B. was a child in need of supervision. An investigation was conducted and it was determined that Z.B. had engaged in sex with G.B. and K.B. A third amended petition contained five counts:

Count 1: Child in Need of Supervision
Count 2: Sexual Contact with a Child Under Sixteen Years of Age, with the victim being G.B.
Count 3: Sexual Contact with a Child Under Sixteen Years of Age, with the victim being K.B.
Count 4: Rape in the First Degree, with the victim being G.B.
Count 5: Rape in the First Degree, with the victim being K.B.

[¶ 4.] During the adjudicatory hearing, Z.B. admitted to Counts 4 and 5. A dispo-sitional hearing was held where the circuit court ordered that Z.B. be remanded to the custody of the Department of Corree-[598]*598tions and register as a sex offender. Z.B. appeals.1

II.

[¶ 5.] Z.B. challenges SDCL 22-24B-2 on equal protection grounds. This raises questions of statutory interpretation and the constitutionality of a statute. Both questions are reviewed by this Court de novo. Buchholz v. Storsve, 2007 SD 101, ¶ 7, 740 N.W.2d 107, 110 (additional citation omitted). There is a strong presumption a statute is constitutional. Meinders v. Weber, 2000 SD 2, ¶ 28, 604 N.W.2d 248, 260 (citing State v. Laible, 1999 SD 58, ¶ 10, 594 N.W.2d 328, 331 (other citation omitted)). Only when a statute plainly and unmistakably violates a constitutional provision will we declare it unconstitutional. Id. When deciding the constitutionality of a statute we do not determine whether the “legislative act is unwise, unsound, or unnecessary,” but only if it is constitutional. State v. Allison, 2000 SD 21, ¶ 5, 607 N.W.2d 1, 2. In an equal protection challenge, “ ‘[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.’ ” Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 1006, 35 L.Ed.2d 351 (1973) (citations omitted).

[¶ 6.] In 1997, the Legislature amended our sex offender registration statute to require juveniles adjudicated of certain sex crimes to register as sex offenders. SDCL 22-24B-2 provides in relevant part that:

Any juvenile fifteen years or older shall register as a sex offender if that juvenile has been adjudicated of a sex crime as defined in 22-22-7.2, 22-24B-l(l), or 22-24B-l(9), or of an out-of-state or federal offense that is comparable to the elements of these three sex crimes or any crime committed in another state if the state also requires a juvenile adjudicated of that crime to register as a sex offender in that state.2

[599]*599The sex offender statutory scheme does not exclude juvenile sex offenders from the notification provisions; juveniles fifteen or older having committed certain sex crimes are subject to the public access and notification provisions. See SDCL 22-24B-15 (making sex offender registration list a public document); SDCL 22-24B-21 (establishing a public internet site containing sex offender registration information); SDCL 22-24B-11 (requiring the participation in the National Sex Offender Public Registry).

[¶7.] “The equal protection clauses embodied in the Fourteenth Amendment to the United States Constitution and in Article VI, [section] 18 of the South Dakota Constitution guarantee equal protection of the laws to all persons.” State v. Krahwinkel, 2002 SD 160, ¶ 19, 656 N.W.2d 451, 460. To prevail on his equal protection claim, Z.B. must satisfy a two-part test. First, he must show that the statute creates an arbitrary classification. In re Davis, 2004 SD 70, ¶ 5, 681 N.W.2d 452, 454 (additional citation omitted). “Second, if the classification does not involve a fundamental right or suspect [or intermediate] group, we determine whether a rational relationship exists between a legitimate legislative purpose and the classifications created.”3 Id.; Krahwinkel, 2002 SD 160, ¶ 19, 656 N.W.2d at 460.

[¶ 8.] Z.B. alleges that SDCL 22-24B-2 violates equal protection because fifteen, sixteen, and seventeen year olds adjudicated delinquent of sex crimes in juvenile court have no right to a jury, nor can they get their names removed from the sex offender registry by receiving a suspended imposition of sentence. See SDCL 22-24B-2; SDCL 23A-27-13; SDCL 23A-27-14. He alleges that this statute creates an arbitrary classification where juveniles are treated differently than adults. When adult defendants receive a suspended imposition of sentence under SDCL 23A-27-13 and 23A-27-14 and comply with certain requirements, they may be removed from the sex offender registry. SDCL 22-24B-2. Z.B.

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Bluebook (online)
2008 SD 108, 757 N.W.2d 595, 2008 S.D. LEXIS 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-zb-sd-2008.