A.W. v. State of Nebraska

          Submitted: May 10, 2017

         Appeal from United States District Court for the District of Nebraska - Omaha

          Before RILEY, BEAM, and SHEPHERD, Circuit Judges.

          BEAM, Circuit Judge.

         The State of Nebraska, along with the Nebraska State Patrol (NSP) and various state officials (collectively, the State), appeals the district court's^[1] 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.

         I. BACKGROUND

         We 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.

         to 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.

         Although 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 of Nebraska[.]").

         A.W. 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 State appeals.

         II. DISCUSSION

         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 ...