Appeal from Superior Court, Pierce (313423010) County; Honorable Bruce Cohoe, Judge. Judgment Date: 3-11-93.
Talmadge, J., Durham, C.j., Dolliver, Smith, Guy, Alexander, J.j., concurring. Johnson, J. (dissenting by separate opinion), Madsen, Sanders, J.j., dissenting.
TALMADGE, J. -- The 1991 Legislature enacted what is now RCW 9A.44.140(4),*fn1 which permits juveniles convicted of sex offenses to seek waiver of the requirement to register with local law enforcement authorities. Roger Heiskell was convicted of a sex offense in 1992 when he was 14 years old. Heiskell contends he should have been able to seek a waiver of the registration requirement immediately upon his conviction or, if he could not do so, the statute violates his right to equal protection of the laws. We hold Heiskell was not entitled immediately to seek a waiver of registration requirements, reverse the Court of Appeals, and reinstate the trial court's denial of a waiver.
1. Under RCW 9A.44.140(4), can Heiskell, who was
under the age of 15 when he was convicted, obtain a waiver of registration as a sex offender without waiting two years?
2. Does RCW 9A.44.140(4) violate Heiskell's right to equal protection of law?
Roger Heiskell was 14 years old in 1992 when he took intimate liberties with his nine-year-old sister. He pleaded guilty on February 19, 1993, to one count of child molestation, a class A felony. In his guilty plea, he admitted to touching his sister "on her buttocks under her clothes" over a three-month period. Clerk's Papers at 9.
As Heiskell was a convicted sex offender, the law required him to register with his county sheriff: "Any adult or juvenile residing in this state who has been found to have committed or has been convicted of any sex offense . . . shall register with the county sheriff for the county of the person's residence." RCW 9A.44.130(1).*fn2 The registration requirement for those convicted of a class A felony never terminates unless the offender petitions for and obtains an order of relief from superior court. RCW 9A.44.140(1)(a) and (3). RCW 9A.44.140(4) allows a juvenile to petition for the waiver of the sex offender registration requirement.
At the disposition hearing on March 11, 1993, Heiskell asked the trial court for a waiver or deferral of the registration requirement. No legal arguments by Heiskell appear in the record, either in the verbatim report of proceedings or in the clerk's papers. The state opposed the petition, arguing Heiskell "falls under the age where it is clear that there has to be a two year lapse before they can even petition the court." Report of Proceedings II at 5. The trial court agreed and refused to grant the waiver.
Heiskell appealed the trial court's refusal to consider his waiver request. The Court of Appeals found RCW 9A.44.140(4) to be ambiguous, reversed the trial court, and remanded the case to the trial court to exercise its discretion in determining whether Heiskell is required to register as a sex offender. State v. Heiskell, 77 Wash. App. 943, 895 P.2d 848, review granted, 128 Wash. 2d 1001 (1995). The State then petitioned for review, which we granted.
1. REGISTRATION OF SEX OFFENDERS AND WAIVER OF REGISTRATION
The 1990 Legislature enacted the Community Protection Act to address concerns about sex offenders. One of the provisions of that legislation was the registration of convicted sex offenders with local law enforcement authorities. The Legislature articulated the purpose of registration as follows:
The legislature finds that sex offenders often pose a high risk of reoffense, and that law enforcement's efforts to protect their communities, conduct investigations, and quickly apprehend offenders who commit sex offenses, are impaired by the lack of information available to law enforcement agencies about convicted sex offenders who live within the law enforcement agency's jurisdiction. Therefore, this state's policy is to assist local law enforcement agencies' efforts to protect their communities by regulating sex offenders by requiring sex offenders to register with local law enforcement agencies as provided in section 402 of this act.
Laws of 1990, ch. 3, § 401. Thus, the legislative purpose behind sex offender registration is to assist law enforcement agencies' protection efforts. In State v. Ward, 123 Wash. 2d 488, 869 P.2d 1062 (1994), we upheld the registration statute against constitutional challenges on grounds it was an ex post facto enactment, and violated rights to due process and equal protection.
The 1990 Legislature also provided in RCW 9A.44.130(2) for waiver of the registration mandate:
Any person having a duty to register under RCW 9A.44.130 may petition the superior court to be relieved of that duty. . . . Except as provided in subsection (3) of this section, the court may relieve the petitioner of the duty to register only if the petitioner shows, with clear and convincing evidence, that future registration of the petitioner will not serve the purposes of RCW 9A.44.130. . . .
In 1991, the Legislature enacted what is now RCW 9A.44.140(4) concerning the waiver of registration by juveniles:
An offender having a duty to register under RCW 9A.44.130 for a sex offense committed when the offender was a juvenile may petition the superior court to be relieved of that duty. The court shall consider the nature of the registrable offense committed, and the criminal and relevant noncriminal behavior of the petitioner both before and after adjudication, and may consider other factors. The court may relieve the petitioner of the duty to register for a sex offense that was committed while the petitioner was fifteen years of age or older only if the petitioner shows, with clear and convincing evidence, that future registration of the petitioner will not serve the purposes of RCW 9A.44.130, 10.01.200, 43.43.540, 46.20.187, 70.48.470, and 72.09.330. The court may relieve the petitioner of the duty to register for a sex offense that was committed while the petitioner was under the age of fifteen if the petitioner (a) has not been adjudicated of any additional sex offenses during the twenty-four months following the adjudication for the sex offense giving rise to the duty to register, and (b) the petitioner proves by a preponderance of the evidence that future registration of the petitioner will not serve the purposes of RCW 9A.44.130, 10.01.200, 43.43.540, 46.20.187, 70.48.470, and 72.09.330.
(Emphasis added.) Subparagraph (4) differentiates between juveniles 15 and older, and juveniles younger than 15. In the former case, the older juvenile must prove by clear and convincing evidence that future registration will not serve the purposes of RCW 9A.44.130; in the latter Case, the younger juvenile need prove only by a preponderance of the evidence that future registration will not serve the
purposes of the statute, but must wait two years and not reoffend during that time before petitioning for relief.
The legislative history on the enactment of RCW 9A.44.140(4) is not extensive, but it does suggest a legislative intent to provide a lower burden of proof for waiver of the registration requirement for younger juveniles. A colloquy from the House Judiciary Committee hearing ...