United States District Court, D. Nebraska
A.W., a minor child, by and through JOHN DOE and JANE DOE, as Next Friends and Guardians, Plaintiffs,
STATE OF NEBRASKA; NEBRASKA STATE PATROL; DOUG PETERSON, Attorney General of Nebraska; THOMAS SCHWARTEN, Superintendent of Law Enforcement and Public Safety for Nebraska State Patrol: PAUL WOOD, County Attorney for Red Willow County; and GENE MAHON, Sheriff Red Willow County, Defendants.
MEMORANDUM AND ORDER
RICHARD G. KOPF, Senior District Judge.
Plaintiffs have filed a motion requesting this court to certify the following question to the Nebraska Supreme Court:
Whether Neb. Rev. Stat. § 29-4003(1)(a)(iv), requiring any person who 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, applies to a minor that is required to register as a sex offender in another state that requires sex offender registration without public notification for juvenile adjudications.
(Filing No. 32.) For the reasons discussed below, the motion will be denied.
The plaintiffs allege that "[a] petition was filed in the Juvenile Court of Anoka County, Minnesota in October of 2013 alleging criminal sexual conduct by Plaintiff A.W., which took place when [he] was 11 years old (Amended Complaint (Filing No. 24), ¶ 29); that "Plaintiff A.W. was sent to live with Plaintiffs John and Jane Doe in Red Willow County, Nebraska, after allegations were initially made in August of 2013, ... [and he] has resided in Red Willow County, Nebraska, since that time" ( id., ¶ 30); that "[o]n or about July 18, 2014, Plaintiff A.W. was adjudicated delinquent for criminal sexual conduct in the Juvenile Court of Anoka County, Minnesota, and ordered, inter alia, to comply with Minnesota's predatory offender registration" ( id., ¶ 31); that "[o]n or about October 22, 2014, Plaintiff A.W. completed a Minnesota Predatory Offender Registration Form thereby completing his obligation for registration under Minnesota's PORA" ( id., ¶ 32); that "[p]ursuant to Minnesota's PORA, Plaintiff A.W. has not been subjected to public notification" ( id., ¶ 33); and that "[t]he State of Nebraska has notified Plaintiff A.W. that [he] is subject to Neb. Rev. Stat. § 29-4003(1)(a)(iv) of Nebraska's Sex Offender Registration Act including public notification pursuant to the state's Sex Offender website maintained by the Nebraska State Patrol" ( id., ¶ 34). Although they do not specifically request this court to interpret the statute, the plaintiffs allege that "Nebraska's legislature did not intend Neb. Rev. Stat. § 29-4003(1)(a)(iv) to apply to juveniles" ( id., ¶ 36) because "[t]he State of Nebraska opted not to have juvenile offenders comply with sex offender registration and not to list juvenile offenders on its sex offender registry website" ( id., ¶ 22).
The Nebraska Supreme Court "may answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, or a United States District Court, when requested by the certifying court, if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court of this state." Neb. Rev. Stat. § 24-219; see Keller v. City of Fremont, 790 N.W.2d 711, 712 (Neb. 2010) ("Under § 24-219, this court may answer certified questions when (1) a proceeding before the federal certifying court involves a question of state law which may be determinative of the pending cause and (2) the certifying court believes that there is no controlling precedent in the state."). Whether to certify a question of state law "is a matter addressed to the discretion of the district court." Packett v. Stenberg, 969 F.2d 721, 726 (8th Cir. 1992), citing Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974).
"Like abstention, certification is appropriate in those circumstances where the state statute is susceptible of an interpretation that "would eliminate the constitutional issue and terminate the litigation."'" Allstate Ins. Co. v. Serio, 261 F.3d 143, 151 (2d Cir. 2001), quoting Tunick v. Safir, 209 F.3d 67, 75 (2d Cir. 2000), in turn quoting Baggett v. Bullitt, 377 U.S. 360, 377 (1964). "But the U.S. Supreme Court has held that federal courts are not required to obtain a state court's construction of a state statute or ordinance before deciding a federal constitutional challenge to the law and should not certify such question unless the law is fairly susceptible to a narrowing construction." Keller, 790 N.W.2d at 712, citing Stenberg v. Carhart, 530 U.S. 914 (2000); Houston v. Hill, 482 U.S. 451 (1987). "Also, the Court has held that it is manifestly inappropriate to certify a question in a case where... there is no uncertain question of state law whose resolution might affect the pending federal claim.'" Id., quoting Houston, 482 U.S. at 471. "[A]bsent a close question of state law or a lack of state guidance, a federal court should determine all the issues before it." Anderson v. Hess Corp., 649 F.3d 891, 895 (8th Cir. 2011).
The first prong of the two-part test for certification appears satisfied in this case because the question of state law the plaintiffs pose "may be determinative" of their constitutional claims. That is, if the Nebraska Supreme Court were to answer the question in the negative, then, based on the allegations of the complaint, A.W. would not be required to register as a sex offender under Neb. Rev. Stat. § 29-4003(1)(a)(iv) and there would be no factual basis for the plaintiffs' constitutional challenges to the statute. It must next be determined whether controlling precedent exists.
The Nebraska Sex Offender Registration Act (SORA) applies to any person who on or after January 1, 1997:
(i) Has ever pled guilty to, pled nolo contendere to, or been found guilty of any of the following:
(A) Kidnapping of a minor pursuant to section 28-313, except when the person is the parent of the minor and was not convicted of any other offense in this section;
(B) False imprisonment of a minor pursuant to section 28-314 or 28-315;
(C) Sexual assault pursuant to section 28-319 or 28-320;
(D) Sexual assault of a child in the second or third degree pursuant to ...