A.W., a minor child, by and through John Doe, as Next Friend and Guardian, and Jane Doe, as Next Friend and Guardian; John Doe, as Next Friend and Guardian of A.W., a minor child; Jane Doe, as Next Friend and Guardian of A.W., a minor child Plaintiffs - Appellees
State of Nebraska; Nebraska State Patrol; Jon Bruning, Attorney General of Nebraska; David Sankey, Col., Superintendent of Law Enforcement and Public Safety for Nebraska State Patrol Defendants Paul Wood, County Attorney for Red Willow County; Gene Mahon, Sheriff Red Willow County; Doug Peterson, in his official capacity Defendants - Appellants Thomas Schwarten, in his official capacity Defendant Colonel Bradley Rice, in his official capacity Defendant-Appellant
Submitted: May 10, 2017
from United States District Court for the District of
Nebraska - Omaha
RILEY, BEAM, and SHEPHERD, Circuit Judges.
State of Nebraska, along with the Nebraska State Patrol (NSP)
and various state officials (collectively, the State),
appeals the district court's grant of summary judgment to
A.W. and A.W.'s guardians, John and Jane Doe, enjoining
it from applying to A.W. a provision of Nebraska's Sex
Offender Registration Act (SORA). That provision, Neb. Rev.
Stat. § 29-4003(1)(a)(iv), applies SORA to any person
who, on or after January 1, 1997, "[e]nters 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." We hold that this provision does not apply to
appellant A.W. and, accordingly, affirm the district court.
recite the facts as set forth in the parties' stipulated
record. In October, 2013, a petition was filed in the Anoka
County, Minnesota, juvenile court alleging that in July and
August of 2013, A.W., at that time eleven years old, engaged
in conduct constituting first-degree criminal sexual conduct
under the laws of that state. See Minn. Stat. §
609.342. Around August 2013, A.W. began residing with John
and Jane Doe in Nebraska. In July 2014, A.W. was adjudicated
delinquent for the alleged conduct at a hearing in the Anoka
County juvenile court, and the court ordered A.W.
comply with Minnesota's predatory-offender-registration
statute. A.W. traveled to Minnesota for the hearing and
afterward returned to Nebraska. Later that month, A.W.
applied for and was granted a transfer in supervision from
Minnesota to Nebraska under the Interstate Compact for
Juveniles. In August 2014, the Nebraska probation office
notified A.W. and John and Jane Doe that A.W. must either
register on Nebraska's sex-offender registry or face
criminal referral to the county sheriff and attorney.
A.W. was required to register as a predatory offender in
Minnesota, Minn. Stat. § 243.166 subd. 1b(a)(1), a
person required to register due solely to a delinquency
adjudication is not included in the definition of a predatory
offender for Minnesota's statute covering the public
disclosure of the identity and re-offense risk of such
registrants, id. § 244.052 subd. 1(5). As a
consequence, neither the fact of A.W.'s registration nor
information that he would be required to provide to law
enforcement officials in connection with his registration,
id. § 243.166 subd. 7, would be made public. By
contrast, SORA provides that, with some exceptions,
"[i]nformation obtained under [SORA] shall not be
confidential." Neb. Rev. Stat. § 29-4009(1).
Further, the Nebraska State Patrol (NSP)-the agency tasked by
SORA with adopting and promulgating rules and regulations to
carry out SORA's registration provisions and for the
release of information under § 29-4009, id.
§ 29-4013-subjects every registrant to public
identification, including the registrant's identity and
other relevant information, on its sex-offender-registry
website. See id. § 29-4013(2)(b) (requiring use
of "electronic systems" in releasing information
for purpose of public notification). Therefore, A.W.'s
registration and related information would be made public in
Nebraska under SORA. Although the NSP required A.W., as a
juvenile entrant adjudicated delinquent and subject to
predatory-offender registration in Minnesota, to register
under SORA, it does not require juveniles adjudicated
delinquent in Nebraska to do so. See 272 Neb. Admin.
Code ch. 19 § 003.05C ("The registration
requirement does not apply to a person who: . . . . Is a
juvenile adjudicated 'delinquent' or 'in need of
special supervision' by the juvenile courts in the state
and John and Jane Doe filed this 42 U.S.C. § 1983 action
against the State, alleging that the Nebraska legislature did
not intend SORA to apply to juveniles and that both the
application of SORA to A.W. generally, and its public
notification provisions specifically, violate various
guarantees under the United States and Nebraska
Constitutions. The district court granted the plaintiffs'
motion for summary judgment and denied defendants'. It
concluded that the plain meaning of "sex offender"
as employed in § 29-4003(1)(a)(iv) unambiguously means
one who was convicted of a sex crime, which would not include
a juvenile adjudicated delinquent. Accordingly, it
permanently enjoined Nebraska from applying SORA to A.W. The
issue for review is whether the district court correctly
interpreted § 29-4003(1)(a)(iv) of SORA as inapplicable
to A.W. We review de novo both the district court's grant
of summary judgment and its interpretation of state law.
Food Mkt. Merch., Inc. v. Scottsdale Indem. Co., 857
F.3d 783, 786 (8th Cir. 2017). Because the Nebraska courts
have not directly spoken to the question before us, an
interpretation of a Nebraska statute, "our objective is
to predict how [Nebraska]'s highest state court would
interpret the statute." John T. v. Marion Indep.
Sch. Dist., 173 F.3d 684, 687 (8th Cir. 1999).
Statutory language is to be given its plain and ordinary
meaning, and [the Nebraska Supreme Court] will not resort to
interpretation to ascertain the meaning of statutory words
which are plain, direct, and unambiguous. It is not within
the province of [that] court to read a meaning into a statute
that is not warranted by the legislative language.
State v. Gilliam, 874 N.W.2d 48, 56-57 (Neb.)
(footnote omitted), cert. denied, 137 S.Ct. 371
(2016). Accordingly, "[i]n discerning the meaning of a
statute, a court determines and gives effect to the purpose
and intent of the Legislature as ascertained from the entire
language of the statute considered in its plain, ordinary,
and popular sense." Farmers Coop. v. State, 893
N.W.2d 728, 735 (Neb.), reh'g denied andmodified, Nos. S-16-312, S-16-313, 2017 WL 2883660
(July 7, 2017). If, however, "the language used cannot
be adequately understood from the plain meaning of the
statute or when considered in pari materia with any related
statutes, " it is ambiguous. Id. at 735. Put
differently, "[a] statute is ambiguous if it is
susceptible of more than one reasonable interpretation."
State v. Frederick, 864 N.W.2d 681, 686 (Neb. 2015).
If a statute is found to be ambiguous, Nebraska courts may
examine its legislative history and engage in judicial