Boy's family fighting state putting him on sex offender registry

2-11-2015 Nebraska:

Juveniles aren't listed on Nebraska's Sex Offender Registry, but a 12-year-old boy who recently moved to the state could end up there by the letter of the law.

His family is fighting the move, and a federal judge already has agreed to block the Nebraska State Patrol from adding his name and picture to the registry and public website while the civil case is pending.

The issue appears to be an unintended consequence of how the state's Sex Offender Registry Act was written. Specifically, state law says the act applies to "any person who on or after January 1, 1997 ... enters the state and is required to register as a sex offender under the laws of another village, town, city, state, territory, commonwealth, or other jurisdiction of the United States."

Enter the problem.

Minnesota's predatory offender list requires juvenile offenders to register, although the information is reported to law enforcement only and not made public.

Nebraska's registry doesn't require juvenile offenders to register, not even on a private list for police.

Lawmakers here opted to make their own rules and not to comply with the entire Adam Walsh Child Protection and Safety Act of 2006, which includes listing juveniles. In doing so, they lost out on $163,000 in federal funding, Omaha attorney Joshua Weir said.

The recent problem arose when the boy from Minnesota, charged in juvenile court there with criminal sexual conduct in the first degree at age 11, moved to rural Nebraska to live with relatives.

In Minnesota, the boy got probation with counseling and community service. When he moved to Nebraska, his probation officer here consulted with the State Patrol, which determined that under the law he had to register.

Weir said state employees recognized that putting the boy on the list would be problematic under Nebraska law because of his age.

"But essentially what they said was our hands are tied unless you get a court order," he said.

In August, Weir filed a civil case in U.S. District Court in Omaha on behalf of the boy's family seeking to stop the state from adding him to the public list or arresting him for violating the Sex Offender Registry Act.

They also sought an answer from the court on whether it would violate the boy's due process rights to treat him differently than other juveniles in Nebraska by putting him on the list and whether it would constitute as cruel and unusual punishment because he's so young.

"He's not an adult predator," Weir said.

But before the federal court gets to those questions, he is asking Senior U.S. District Judge Richard Kopf to certify a question of state law to the Nebraska Supreme Court, namely, whether the section of the statute that requires people subject to out-of-state registries to register in Nebraska when they move here applies to juveniles.

Weir said the state Supreme Court hasn't weighed in on that question.

Ultimately, he said, he's hoping the Legislature will take a look at the issue and "make a quick fix."

So far, the state is defending the law as written. And, in a federal court filing, Assistant Nebraska Attorney General Ryan Post called Weir's move unwarranted because the Nebraska Supreme Court already has interpreted the plain language of the law.

He cited a case that didn't involve a juvenile but found the statute to be plain, direct and unambiguous: that a sex offender who has to register in another jurisdiction is required to register here.

Based on the facts, Post said, whether the statute applies to the boy "should be beyond dispute."

Suzanne Gage, a spokeswoman with the state Attorney General's Office, said the office doesn't have a comment on the case at this time.

Kopf hasn't yet ruled on the request. ..Source.. by Lori Pilger