The Missouri Supreme Court Can't Read
Which is like, a big part of the job of being a judge I think
It’s been quite some time since I’ve written anything that hasn’t been a brief, and I’ve been taking an extended hiatus from certain social media for the sake of my own mental health, but an opinion so mind-boggling from the Missouri Supreme Court just came across my desk that I just had to say….something. So, here I am, typing into the void once more.
In an opinion released today, the Missouri Supreme Court (or, rather, a majority. There is a dissent that is right on target, so to be fair, the Court isn't made up entirely of bears) held that anyone who has ever been subject to a federal sex offense registration obligation must register for life in Missouri.
Lifetime registration obligations are a thing, of course. Some places have them. Some legislatures, after ignoring what social science has to say about registration, decide they want them, and so legislatures legislate them into existence.
What makes Missouri’s Court-mandated lifetime obligation different is that the legislature specifically rejected the notion that people should have to register for life. Prior to 2018, registrable offenses in Missouri required lifetime registration. Then, the legislature decided that there was a better way: that not everyone should be required to register for life, and that people should be allowed to petition a court to be relieved of the obligation to register.
So in 2018, the legislature amended the law to separate people into “tiers” with different timeframes of registration based on…perceived risk? Offense severity? Who can say. In any event, not everyone was required to register for life anymore, and some people were allowed to ask a court to be relieved of registration if they could demonstrate, inter alia, that they were not a public safety risk.
So enter the appellants, both of whom were convicted of registrable offenses in the mid-00’s and sought to avail themselves of the post-2018 law that allowed people to ask a court to cease the requirement to register. In both cases, the trial court refused their request because of a wrinkle in Missouri’s law and prior appellate precedent: one provision (589.400.1(7) RSMo, to be exact) had been held to effectively require registration for anyone who had ever been subject to a federal registration obligation.
In both cases, the intermediate appellate court reversed, finding that — quite sensibly — that such an interpretation was absurd given the 2018 changes. The Missouri Supreme Court, however, was not swayed — finding that under the “plain text” of the the law, everyone was required to register for life.
However, you only get to that result if you ignore the plain text of the statute. As the dissenting opinion points out:
In affirming the circuit court’s judgments denying Mr. Smith’s and Mr. Ford’s petitions to be removed from Missouri’s sex offender registry, the principal opinion reads subdivision (7) of section 589.400.1 out of context and misstates this Court’s holding in Doe v. Toelke, 389 S.W.3d 165, 167 (Mo. banc 2012). In the first instance, the principal opinion ignores the first seven words in section 589.400.1 that precede the eight subdivisions that follow. When properly read, the plain language of section 589.400.1(7) does not mandate lifetime registration for every person who has been or is required to register under federal law. The relevant portion of section 589.400.1(7) states, “Sections 589.400 to 589.425 shall apply to: . . . (7) Any person who is a resident of the state who . . . has been or is required to register under . . . federal law[.]” Subdivision (7) provides merely that residents of Missouri who have ever been required to register by federal law are subject to MO-SORA’s provisions.
[T]he principal opinion’s interpretation of section 589.400.1(7) leads to an absurd result and, for that reason, must be avoided. “Statutes cannot be interpreted in ways that yield unreasonable or absurd results.” State ex rel. T.J. v. Cundiff, 632 S.W.3d 353, 358 (Mo. banc 2021). Nearly every person convicted of a sexual offense in Missouri is required to register pursuant to SORNA, and, under the principal opinion’s interpretation, section 589.400.1(7) requires all such persons to register for their lifetimes, regardless of any other provision in sections 589.400 to 589.425.7 The result is that the vast majority of persons convicted of a sexual offense in Missouri would have a lifetime registration requirement notwithstanding the provisions adopting a tiered scheme corresponding to SORNA and the provisions for removal the General Assembly saw fit to enact in 2018. Under the principal opinion’s interpretation, almost no one will be entitled to the benefit of the tiered scheme or the provision permitting removal from the registry, and the General Assembly’s newly enacted provisions have little effect. Contrary to the principal opinion’s interpretation, the plain and ordinary language of sections 589.400.1(7), 589.400.3, and 589.400.4 gives effect to the registration requirements in section 598.400.4 and allows for removal from the registry pursuant to section 589.401, as the General Assembly clearly intended.
In short, a “plain text” reading of 589.400.1 only states that anyone who has been subject to a federal registration obligation is also subject to Missouri’s statutory scheme, which has tiers and an off-ramp since 2018.
Admittedly, this is pretty dry stuff. It’s generally hard to make statutory interpretation fun or exciting. But there’s very real consequences for people in Missouri — especially for people who have finished their registration obligation (and their families) who are now presumably going to have to register again, or risk prospection and imprisonment.
It also has public safety implications. Whatever faults there are with the legislative process in arriving at a reasoned and evidence-based registration scheme (and dear reader, there are many) — at least the Missouri legislature did attempt to craft something that was responsive to the question of public safety. Leaving aside the question of whether registries make us safer in the first place, they recognized that people with past convictions are not immutable dangers to society, and that people represent differing levels of risk.
This decision undoes all that deliberative work, and it does it it in a way that’s hard to explain except through deployment of a term I’ve used in this corner of the law: judicial gaslighting. I’ve read many opinions where that’s a shoe that fits, but this is the first one that I have read wherein the majority simply imagines that words that are very clearly present in a statute simply do not exist.
It’s either that, or they simply cannot read. So I went with the more charitable interpretation.
Or maybe they are bears after all.
The more charitable interpretation indeed. The registry as it's wielded is one of the great tragedies of American life IMHO. Thanks for bringing attention to this, Guy.