Skip to content

The Sex Offender Registry and moving out-of-State

by merlin on November 22nd, 2013
  • Sumo

Earlier this week, someone specifically asked me a question regarding eligibility to move to Georgia after being removed from the Sex Offender Registry operated by their State of residence.  In response, while I replied that I was not certain, and also believed (correctly) that the statute is phrased in language that describes Registry classification qualifications and not in terms of persons who are on the Registry or not (and, therefore, a person removed from the Registry in a different State would likely have to re-Register if they transferred to Georgia), it was more likely than not that Georgia would require them to register again as a sex offender even if they had been successfully removed from the Registry in their prior State of residence.

This case is a District Court case from New York, Spiteri v. Russo, 2013 U.S. Dist. Lexis 128379 (E.D.N.Y. 2013)(Lexis citation only), and it contains an excellent discussion of the particular Constitutional principle that underlies the horribly unfair rationale behind this ability of the States to take such action.  Again, while the particular issue does not appear to have been addressed, it appears likely that States would tend to ignore the removal from the Registry in another State

“ix. Full Faith and Credit

Plaintiff argues that because his “out-of-state California conviction with a willing participant is no longer registerable [sic]” that New York is violating the Full Faith and Credit Clause by requiring Plaintiff to register in New York. (Pl. Opp’n. to State Defs. 86, 88-91.) According to the Full Faith and Credit Clause, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” U.S. Const. art. IV, § 1. “The purpose of the Full Faith and Credit Clause  [151] ‘was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.'” Rosin v. Monken, 599 F.3d 574, 576 (7th Cir. 2010) (quoting Baker v. General Motors Corp., 522 U.S. 222, 232, 118 S. Ct. 657, 139 L. Ed. 2d 580 (1998)). “By virtue of its ‘exacting’ operation with respect to judgments, the Full Faith and Credit Clause results in ‘the judgment of the rendering State [gaining] nationwide force.’ The primary operational effect of the Clause’s application is ‘for claim and issue preclusion (res judicata) purposes.'” Rosin, 599 F.3d at 576 (alteration in original) (quoting Baker, 522 U.S. at 233).

Every court to squarely address the issue of whether the Full Faith and Credit Clause requires a state to give a convicted sex offender who relocates to that state the same classification that he would have had in the state of conviction has agreed that it does not. See, e.g., Daniels v. Arapahoe Cnty. Dist. Court, 376 F. App’x 851, 854 (10th Cir. 2010)  [152] (holding that Colorado was not bound by the Full Faith and Credit Clause, to give the plaintiff the same sex offender classification status for his California guilty plea as he would have received in California); Rosin, 599 F.3d at 577 (holding that the Full Faith and Credit Clause did not prevent Illinois from requiring a plaintiff to register even though registration was not required in the state where he pled guilty); McGuire v. City of Montgomery, No.11-CV-1027, 2013 U.S. Dist. LEXIS 45157, 2013 WL 1336882, at *12 (M.D. Ala. Mar. 29, 2013) (plaintiff failed to state a Full Faith and Credit claim because “the judgment of the Colorado court — which is silent on registration in Colorado or any other state — does not preclude Alabama from requiring Plaintiff to register”); O’Donnell, 924 N.Y.S.2d at 687-88 (holding that New York could impose a different registration requirement than Virginia where the plaintiff was convicted); McGarghan, 920 N.Y.S.2d at 331 (the requirement that plaintiff register for 20 years in New York when he would only have to register for 10 years in Vermont where his conviction occurred was not a violation of Full Faith and Credit Clause); Smith, 898 N.Y.S.2d at 704-05 (holding that New  [153] York did not have to give full faith and credit to the plaintiff’s registration requirement in Texas, the state where the plaintiff pled guilty); People v. Arotin, 19 A.D.3d 845, 796 N.Y.S.2d 743, 745 (App. Div. 2005) (finding that the Full Faith and Credit Clause “is not violated by requiring a convicted sex offender moving into New York to be governed by [New York’s] registration requirements”).

The rationale used by most of these courts in reaching their decision is that the exercise of the police power of each state over its citizens gives states the power to independently determine sex registration for sex offenders located in its borders. For example, in Rosin, the Seventh Circuit found that “Illinois, as a state of the Union, has police power over the health and welfare of its citizens.” Rosin, 599 F.3d at 577. The Seventh Circuit went on to state that “New York has no authority to dictate to Illinois the manner in which it can best protect its citizenry from those convicted of sex offenses.” Rosin, 599 F.3d at 577. The Seventh Circuit concluded that “there is no tension between Illinois’s police power and the Full Faith and Credit Clause here. As a result, New York could promise Rosin only  [154] that he would never have to register as a sex offender within its own jurisdiction. Rosin could not bargain for a promise from New York as to what other states would do based on his guilty plea to sexual abuse in the third degree, for New York had no power to make such a promise.” Rosin, 599 F.3d at 577.

In New York, two courts have similarly found that requiring a plaintiff to comply with a different registration requirement than the state of conviction was not a violation of the Full Faith and Credit Clause. In O’Donnell, the Appellate Division, Third Department found that:

New York and Virginia have each separately adjudicated the risk posed by petitioner to their respective citizens and imposed registration requirements upon petitioner pursuant to each state’s sex offender registration law. As neither state has attempted to adjudicate the same matter, the Full Faith and Credit Clause has not been violated.

O’Donnell, 924 N.Y.S.2d at 687-88. In McGarghan, the Appellate Division, First Department, found that “[t]he administrative manner in which a state chooses to exercise the registration requirements for a sex offender who moves into its jurisdiction falls squarely within the power  [155] of that state and is not governed by the procedures in effect in the state where the offender previously resided.” McGarghan, 920 N.Y.S.2d at 330-31 (2011) (quoting Arotin, 19 A.D.3d 845, 796 N.Y.S.2d 743). The Appellate Division reasoned that “[t]he purpose of the Full Faith and Credit Clause is to avoid conflicts between States in adjudicating the same matters” and that “a different state’s registration requirement is not the same matter,” and therefore not a violation of the Full Faith and Credit Clause. Id. In Smith, the Third Department, used the same reasoning as Rosin and held that the registration of sex offenders was pursuant to New York State’s police powers and “New York is not required under full faith and credit principles to assign an offender the same risk level classification as that designated by the jurisdiction where the registerable conviction occurred . . . .” Plaintiff has not, and cannot, state a claim under the Full Faith and Credit Clause of the Constitution and this claim is dismissed with prejudice.”

Comments are closed.