Halloween sex offender statute draws high court skepticism

1-23-2011 Missouri:

The Missouri Supreme Court on Wednesday expressed skepticism for both sides of a case challenging a statute that restricts sex offenders on Halloween.

Judge Laura Denvir Stith asked Audrain County Prosecutor Jacob Shellabarger whether upholding certain conditions on Halloween – such as keeping a porch light off and putting up a sign stating that there are no treats or candy at a residence – could open the door for more prohibitions.

“If we found this was appropriate and the restrictions on handing out candy and so forth are appropriate, couldn’t the Legislature … next year enact a law that said ‘You can’t go outside in the summer if children are playing?’” Stith said. “Where would the limit be, or would there be a limit on what the Legislature could impose by statute as a collateral consequence?”

And after a discussion about whether the statute ran afoul of a constitutional prohibition on retrospective laws, Judge Zel Fischer asked public defender Ellen Flottman how such an argument could be reconciled with a prior case involving regulations imposed on existing dams.

“Why wasn’t that creating a new obligation just like the obligation to put up a sign on Halloween?” Fischer said.

At issue is a law that provides a number of conditions for sex offenders on Halloween. In addition to forcing certain individuals to keep their lights off and post a particular sign, registered sex offenders must avoid contact with trick-or-treaters and remain inside between 5 p.m. and 10:30 p.m. The law also restricts sex offenders’ travel except for certain work or emergency situations.

Charles Raynor, a resident of Audrain County, was charged with a Class A misdemeanor for violating provisions of this state statute. Raynor had to register as a sex offender due to a conviction for a 1988 offense in Washington State. But Audrain County Associate Circuit Judge Linda Hamlett dismissed the charge, noting that the law violated prohibitions against retrospective laws.

In response to Stith’s query, Shellabarger said there was a “heightened public safety interest” in protecting people during the Halloween holiday. He said earlier that the restrictions were a consequence of Raynor having to register as a sex offender.

“I agree with you that there is a limit, and I can’t give you a straight answer, your honor, where that straight line is,” Shellabarger said, noting that the case revolved around issues of retrospective laws and not individual rights. “But if we were to go down that route, this is a compelling state interest and this is a narrowly tailored and least restrictive means of protecting children at that time.”

Shellabarger said the court upheld “collateral consequences” of conviction, including forcing somebody to continually register as a sex offender and to inform law enforcement officials of residency changes.

In response to Fischer’s question, Flottman said that the court’s test in those aforementioned types of cases was whether the law impaired a “vested right,” not whether it imposed a new duty.

“I think it’s different because it’s based on the current existence, operation and safety of the dam, rather than a single past criminal act,” Flottman said. “And you know, someone can decide not to operate a dam. Someone can decide to sell a piece of property if they don’t want to be subject to the regulatory police power of the government.”

“But someone can’t decide ‘I don’t want to be a registered sex offender anymore,’ ” Flottman added.

Judge Mary Russell then asked Flottman if she was arguing that Raynor’s “vested right to hand out Halloween candy” was being impaired.

“I’m not, you honor,” Flottman said. “I’m saying that particular test is not as applicable as the test where a law is retrospective if it imposes a new duty or obligation.”

Near the end of oral arguments, Judge Michael Wolff asked Shellabarger if the law even applied to Raynor.

“Because I think in your first argument, you were telling us that he had to register because of the federal requirement,” Wolff said, referring to a prior Missouri Supreme Court ruling where sex offenders convicted before the registration law went to effect still had the register because of a federal law. “But the Missouri statute on Halloween refers to the state Megan’s Law requirement.”

“It does, your honor,” said Shellabarger. “But I believe [the statute] refers to defendants required to register as a sex offender under other states’ law or federal law, which would have encompassed the defendant’s prior conviction and made that under Missouri law as well.” ..Source.. Blog of J.A.R

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