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March 22, 2016

Federal district judge interprets Nebraska law to preclude placing juve on its public sex offender list

As reported in this local article, a "federal judge has blocked Nebraska from putting a 13-year-old boy who moved here from Minnesota on its public list of sex offenders." Here is more about this notable ruling:

Senior U.S. District Judge Richard G. Kopf said if the boy had done in Nebraska exactly what he did in Minnesota he would not have been required to register as a sex offender "and he would not be stigmatized as such." "It therefore makes no sense to believe that the Nebraska statutes were intended to be more punitive to juveniles adjudicated out of state as compared to juveniles adjudicated in Nebraska," the judge wrote in a 20-page order.

In Nebraska, lawmakers opted to exclude juveniles from the Nebraska Sex Offender Registration Act unless they were prosecuted criminally in adult court, even though it meant losing thousands in federal funding. But the way the law is written made it appear that all sex offenders who move to Nebraska must register.

When the Minnesota boy in this case moved here to live with relatives, the Nebraska State Patrol determined he had to register because of a subsection of the law....

In this case, the boy was 11 when he was adjudicated for criminal sexual conduct in juvenile court in Minnesota. A judge there ordered him to complete probation, counseling and community service, and his name went on a part of that state's predatory offender list that is visible only to police. Even before that, the boy had moved to Nebraska to live with relatives.

In August 2014, the Nebraska probation office notified his family he was required to register under the Nebraska Sex Offender Registry Act or could be prosecuted. That same month, the boy's family filed a federal lawsuit seeking to block the patrol from putting him on Nebraska's registry, which is public.

In Monday's order, Kopf concluded that the boy wasn't required to register in Minnesota because he was adjudicated in a juvenile court, not convicted in adult court, so Nebraska's act doesn't apply. He cited Nebraska Juvenile Code, which specifically says juvenile court adjudications are not to be deemed convictions or subject to civil penalties that normally apply. An adjudication is a juvenile court process through which a judge determines if a juvenile committed a given act.

Kopf's order said it was apparent that the purpose was to identify people guilty of sex offenses and to publish information about them for the protection of the public. "It is equally apparent that the Nebraska Legislature has made a policy determination that information regarding juvenile adjudications is not to be made public, even though this has resulted in the loss of federal funding for non-compliance with (the federal Sex Offender Registration and Notification Act)," he said.

Late Monday afternoon, Omaha attorney Joshua Weir said the boy's grandmother was so excited when he called with the news she had to pull over in a parking lot. "They were very, very relieved," he said. Weir said the boy is a healthy, happy kid now and flourishing in school. "It would've been a tragedy if he would have been branded a sex offender," he said. "That's something that sticks with you for the rest of your life."

The state could choose to appeal the decision within the next 30 days. 

March 22, 2016 at 10:18 PM | Permalink


Shouldn't he have certified the question to the Nebraska Supreme Court if it was about an interpretation of Nebraska law?

Posted by: Erik M | Mar 23, 2016 8:32:13 AM

I had a similar question, Erik, about a federal judge interpreting state law. I will try to get a copy of the opinion...

Posted by: Doug B. | Mar 23, 2016 6:49:51 PM

In order to determine whether a state law violates the federal constitution, a federal court must first determine what the law means. So it makes perfect sense that this judge issued an opinion as to what the law meant. Also, this wouldn't be the first time that a court made an arguably strained interpretation of a statute in order to avoid ruling it unconstitutional.

It's true that federal judges can generally ask state courts to interpret state laws, but I don't know of anything that requires federal judges to do so. And at least where I practice (Ohio), the state supreme court considers such requests as requests that can be denied. In addition, asking for a state court opinion can stall the case for more than a year, so federal judges who want to move their docket may be reticent to ask.

Posted by: Stephen Hardwick | Mar 25, 2016 8:53:47 AM

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