State v. Otness

986 P.2d 890, 1999 Alas. App. LEXIS 72, 1999 WL 626709

• Court: Court of Appeals of Alaska
• Decided: August 13, 1999
• Docket: A-7028, A-7037, A-7038
• Status: Published

Opinions

OPINION

STEWART, Judge.

When the legislature passed the Alaska Sex Offender Registration Act (ASORA),¹ the legislature authorized the Department of Public Safety to adopt regulations implementing that act.² Among the regulations adopted by the Department is a definition of “conviction” requiring registration of any person convicted of a sex offense even if the conviction was set aside after he or she successfully completed probation from a suspended imposition of sentence (SIS).³ Wendell Otness, Robert Elmore, and Neil F. Schenk all had their sex-offense convictions set aside after completing SIS probation.⁴ Because they did not register, the State charged each defendant with second-degree failure to register as a sex offender.⁵

District Court Judge Jane F. Kauvar granted each defendant’s motion to dismiss. Judge Kauvar ruled that the Department of Public Safety had no authority to define conviction to include those convictions that had been set aside. We conclude that the regulation is proper and that Otness, Elmore, and Schenk are obliged to register as sex offenders.

Facts and proceedings

None of the appellees registered as sex offenders. The State charged each defendant in district court for failing to register as a sex offender. Each defendant moved to dismiss on various grounds. Apparently rejecting all grounds except the defendants’ claim that they were not sex offenders within the meaning of ASORA, Judge Kauvar dismissed each defendant’s case. The State appealed. We consolidated these cases for appeal.

Discussion

Each defendant was convicted of a sex offense as defined in AS 12.63.100. ASO-RA requires that any person convicted of a sex offense must register at the local police station or the state trooper post nearest to the offender’s residence.⁶ Although ASORA contained no explicit definition of “conviction,” the legislature authorized the Department of Public Safety to promulgate regulations implementing the act.

The Department adopted a regulation that interpreted “conviction” for purposes of ASORA. That regulation, 13 AAC 09.900(a)(2), provides:

(a) In this chapter and AS 12.63, unless the context requires otherwise,

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(2)“conviction” means that an adult, or a juvenile tried as an adult under AS 47.10 or a similar procedure in another jurisdiction, has entered a plea of guilty or no contest to, or has been found guilty by a court or jury of, a criminal offense, whether or not the judgment was thereafter set aside under AS 12.55.085 (emphasis added)!.]

The appellees argue that this- regulation is contrary to the legislature’s intent when it adopted ASORA. Because of the potential criminal consequences for failing to register, the appellees argue that ASORA must be strictly construed in their favor. Applying that construction, they claim that the Department’s definition of “conviction” violates strict construction because ASORA is ambiguous as to whether they were meant to be included in the regulatory scheme. We note, initially, .that a party challenging a regulation bears the burden of showing the regulation’s invalidity.⁷

Under well-recognized principles of administrative law, regulations promulgated by an .administrative agency under specific statutory authorization are presumed valid and will be upheld if they are “consistent with and reasonably necessary to implement the' statutes authorizing'[their] adoption.”⁸ Here, the Department was authorized to adopt regulations to implement the purposes of ASORA.⁹ Under that authority, the Department defined “conviction” to include a conviction that had been set aside after the completion of a suspended imposition of sentence.

We must respect the regulations adopted by the Department, and must not overrule its construction of the statute “except for weighty reasons.”¹⁰ When we review a regulation adopted pursuant to statutory authority, we review that regulation for consistency with the authorizing statute.¹¹

As is apparent from the legislature’s findings, the legislature had an obvious concern for public safety when it enacted ASORA.¹² The legislature decided that the high rate of recidivism among convicted sex offenders justified the registration and notification programs that allowed the public to obtain information about the members of that group. When the Department adopted regulations to implement the act, it decided to require the registration of those persons who had been convicted of a sex offense, had received a suspended imposition' of sentence, had completed probation and had their convictions set aside.

Under the standard of review we must apply when reviewing an administrative regulation, we conclude that the definition of “conviction” adopted by the Department is consistent with the legislative purpose to protect the public. The definition requires those individuals convicted of a sex offense to register with the Department even if the conviction was set aside. The Department’s conclusion that persons whose conviction had been set aside should have the duty to register is a reasonable construction consistent with the purposes and policies of ASORA.

The appellees argue that this definition is inconsistent with a requirement of “strict construction.” Even if the Department was required to employ strict construction of ASORA when it adopted regulations, we observed in Mack v. State:

[sjtrict construction does not require that statutes be given the narrowest meaning allowed by the language; rather, the language should be given “a reasonable or common sense construction, consonant with the objectives of the legislature.” The intent of the legislature must govern and the policies and purposes of the statute should not be defeated.¹³

When it adopted regulations, the Department was not required to employ strict construction, but to adopt regulations that are consistent with the purposes of the legislation.¹⁴ Even if strict construction was required, it would not require the narrowest interpretation of ASORA. We conclude that the appel-lees did not meet the burden of showing that the regulation adopted by the Department was inconsistent with ASORA.

Therefore, we conclude that Judge Kauvar erred when she dismissed these cases.

Conclusion

The order dismissing each defendant’s case is REVERSED. The cases are REMANDED for further proceedings on the charge of failing to register as a sex offender.

1 . AS 12.63.010-.100, AS 18.65.087.

2 . See AS 18.65.087(a).

3 . See 13 Alaska Administrative Code (AAC) 09.900(a)(2).

4 . See AS 12.55.085.

5 . See AS 11.56.840.

6 . See AS 12.63.010(a) & (b).

7 . See State, Dep’t of Revenue v. OSG Bulk Ships, Inc., 961 P.2d 399, 407 (Alaska 1998); Anchorage Sch. Dist. v. Hale, 857 P.2d 1186, 1188 (Alaska 1993).

8 . State, Bd. of Marine Pilots v. Renwick, 936 P.2d 526, 531 (Alaska 1997) (citation omitted).

⁹

10 . Whaley v. State, 438 P.2d 718, 722 (Alaska 1968).

11 . See Renwick, 936 P.2d at 531-32; State, Dep't of Revenue v. Cosio, 858 P.2d 621, 624 n. 1 (Alaska 1993).

12 . The legislature found:

(1) sex offenders pose a high risk of reoffend-ing 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) release of certain information about sex offenders to public agencies and the general public will assist in protecting the public safety-

Ch. 41, § 1, SLA 1994.

13 . 900 P.2d 1202, 1205 (Alaska App.1995) (quoting Belarde v. Anchorage, 634 P.2d 567, 568 (Alaska App.1981)) (citations omitted),

14 . See Renwick, 936 P.2d at 531-32.