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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ward v. State, Dept. of Public Safety (11/16/2012) sp-6721

Ward v. State, Dept. of Public Safety (11/16/2012) sp-6721

        Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



JAMES D. WARD,                                   ) 

                                                 )         Supreme Court Nos. S-14042/14058 

                   Appellant,                    )         (Consolidated) 

                                                 ) 

        v.                                       )         Superior Court No. 1JU-09-00887 CI 

                                                 ) 

STATE OF ALASKA,                                 )         O P I N I O N 

DEPARTMENT OF PUBLIC                             ) 

SAFETY,                                          )         No. 6721 - November 16, 2012 

                                                 ) 

                   Appellee.                     ) 

                                                 ) 

                                                 ) 

STATE OF ALASKA,                                 ) 

DEPARTMENT OF PUBLIC                             ) 

SAFETY,                                          ) 

                                                 ) 

                Appellant,                       )         Superior Court No. 1SI-09-00140 CI 

                                                 ) 

        v.                                       ) 

                                                 ) 

MICHAEL E. BOLES,                                ) 

                                                 ) 

                Appellee.                        ) 

                                                 ) 



                Appeal in File No. S-14042 from the Superior Court of the 

                 State   of   Alaska,   First   Judicial   District,   Juneau,   Philip   M. 

                Pallenberg,   Judge.      Appeal   in   File   No.   S-14058   from   the 

                 Superior Court of the State of Alaska, First Judicial District, 

                 Sitka, David V. George, Judge. 


----------------------- Page 2-----------------------

                Appearances:      Louis James Menendez, Law Office of Louis 

                J. Menendez, Juneau, and Kirsten Swanson and Marcia E. 

                Holland,     Law    Office   of   Kirsten   Swanson,      Juneau,    for 

                Appellant     Ward     and   Appellee    Boles.    John     J.  Novak, 

                Assistant Attorney General, Anchorage, and John J. Burns, 

                Attorney General, Juneau, for Appellant and Appellee State 

                of Alaska, Department of Public Safety. 



                Before:  Fabe, Winfree, and Stowers, Justices, and Eastaugh, 

                Senior Justice.*   [Carpeneti, Chief Justice, not participating.] 



                EASTAUGH, Senior Justice. 



I.      INTRODUCTION 



                The Alaska Sex Offender Registration Act (ASORA) requires a person 

"convicted of . . . two or more sex offenses" to register for life as a sex offender.1            The 



question raised in these two consolidated appeals is whether this provision applies to a 



person convicted in a single proceeding of two (or more) sex offenses.  James Ward was 



convicted   of   two   sex   offenses   in   a   single   criminal   proceeding.  In   a   separate   and 



unrelated single proceeding, Michael Boles was also   convicted of two sex offenses. 



They argue here that the pertinent statute, AS 12.63.020(a)(1)(B), is ambiguous, because 



it can be read to require convictions in more than one proceeding.  They therefore reason 



that the rule of lenity requires that the ambiguity be resolved in their favor and thus that 



the statute be read to require them to register for 15 years, not life.  They assert that the 



Department of Public Safety, in requiring them to register for life, misread the statute. 



The men filed separate administrative appeals, which were assigned to two different 



superior court judges.      One judge, reasoning that the statute is unambiguous, affirmed 



        *       Sitting   by   assignment   made   under   article   IV,   section   11   of   the   Alaska 



Constitution and Alaska Administrative Rule 23(a). 



        1       AS 12.63.020(a)(1)(B). 



                                                  -2-                                              6721 


----------------------- Page 3-----------------------

the Department's ruling regarding Ward.             The other judge, reasoning that the statute is 



ambiguous and must therefore be read favorably to offenders, reversed the Department's 



ruling regarding Boles. 



                We hold that the Department did not err.          We conclude that the statute, in 



requiring persons "convicted of . . . two or more sex offenses" to register for life, is 



unambiguous and cannot reasonably be read to condition lifetime registration on two or 



more   separate   convictions   for   sex   offenses,   or   on   any   sequential   or   chronological 



separation   between   convictions.       We   therefore   affirm   the   superior   court   order   that 



affirmed the Department's decision regarding Ward and reverse the superior court order 



that reversed the Department's decision regarding Boles. 



II.     FACTS AND PROCEEDINGS 



        A.       Ward v. Department of Public Safety 



                A single indictment charged James D. Ward with committing multiple sex 



offenses against two different victims, A.G. and C.B., in January 1995. A jury convicted 



him of one count of sexual abuse of a minor in the second degree as to the first victim 



and one count of attempted sexual abuse of a minor in the third degree as to the second 



victim;   a   single   judgment   was   entered   against   him   on   both   counts.   An   amended 



judgment ultimately found him guilty of two counts of attempted sexual abuse of a minor 

in the third degree.2    One count was for the offense against A.G. and one count was for 



the   offense   against   C.B.    The   amended   judgment   sentenced   him   to   two   one-year 



consecutive sentences, and suspended 11 months of each sentence. 



                After    Ward    was   released    from   prison,   he  received    a  letter  from  the 



Department of Public Safety informing him that his two convictions of attempted sexual 



abuse of a minor required him to register as a sex offender on a quarterly basis, for life. 



        2       AS 11.41.438; AS 11.31.100(d)(5). 



                                                  -3-                                               6721 


----------------------- Page 4-----------------------

As authority, the letter referred to AS 12.63.020(a)(1).3  Ward administratively appealed 



the Department's decision.        The Department denied his appeal. 



                Ward appealed to the superior court in Juneau, arguing that he should not 



be required to register for life because both convictions resulted from a single criminal 



prosecution.     Superior Court Judge Philip M. Pallenberg affirmed the Department's 



decision.  The superior court first determined that because ASORA was a penal statute, 



the court was bound to apply the rule of lenity if it found that the provisions at issue were 



ambiguous.      But the superior court ruled that AS 12.63.020(a)(1)(B) unambiguously 



stated that individuals like Ward were required to register for life, even though he was 



convicted of two sex offenses in a single proceeding. The court concluded that Ward had 



failed to make a showing of contrary legislative intent sufficient to overcome the statute's 



plain language.   The court therefore affirmed the Department's decision.  Ward appeals 



that ruling. 



        B.      Department of Public Safety v. Boles 



                In 2007 Michael E. Boles confessed, under questioning by the Sitka Police 



Department,   that   he   had   sexually   abused   two   children.   Boles   admitted   that   he   had 



improperly touched each child at least once, on separate occasions.  Boles pleaded guilty 

to two counts of attempted sexual abuse of a minor.4            A single judgment adjudged him 



guilty of both counts, sentenced him to serve five years in state prison on each count, and 



suspended nine years of the composite sentence. 



                After his release from prison, the Department informed Boles that because 



he had been convicted of two sex offenses, he would be required for life to register 



        3       AS 12.63.020 provides in relevant part:   "(a) The duty of a sex offender . . . 



to comply with the requirements of AS 12.63.010 for each sex offense . . . (1) continues 

for the lifetime of a sex offender . . . convicted of . . . (B) two or more sex offenses . . . ." 



        4       AS 11.41.436(a)(2); AS 11.31.100(d)(4). 



                                                  -4-                                              6721 


----------------------- Page 5-----------------------

quarterly as a sex offender.  Boles administratively appealed and the Department denied 

his appeal.5   Boles then appealed the Department's decision to the superior court in Sitka. 



                 Boles argued in the superior court that ASORA is ambiguous as to whether 



multiple     convictions     must    be  sentenced     sequentially     in  order   to  trigger    lifetime 



registration, and that the statute should therefore be read to only require him to register 



for 15 years.  The Department countered that there was "no ambiguity and nothing in the 



language of the statute to suggest a chronological or sequential component to the two- 



conviction lifetime registration rule." Considering substantially the same arguments that 



the  Ward superior court addressed, the Boles superior court reached a different result. 



                 Sitka     Superior     Court     Judge    David      V.   George      first   ruled    that 



AS   12.63.020(a)(1)(B)   was   ambiguous,   as   "[n]either   the   Department   nor   Boles'[s] 



interpretation   of   the   statute   [was],   on   its   face,   unreasonable."    After   finding   little 



guidance in the statute's legislative history,   the superior court construed the statute "so 



as to provide the most lenient penalty" and therefore ruled that Boles was required to 

register for 15 years, not life.      The Department appeals that ruling.6 



        5        Before   filing   his   administrative   appeal,   Boles   appealed   to   the   court   of 



appeals, challenging the stated opinion of his sentencing judge, pro tem Superior Court 

Judge Donald D. Hopwood, that he would be required to register for life.   The court of 

appeals determined that because the sentencing judge had not formally adjudicated the 

issue, Boles's case was not ripe for review.           Boles v. State , 210 P.3d 454, 457 (Alaska 

App. 2009).  The court of appeals concluded that Boles would have the option of filing 

an administrative appeal if the Department determined that he was required to register 

for life.  Id. 



        6        This court heard oral argument in these two appeals in October 2011 and 



ordered supplemental briefing in December 2011. Justice Morgan Christen participated 

in the October 2011 oral argument, but she was installed as a member of the United 

States Court of Appeals for the Ninth Circuit before this court could reconfer on these 

appeals after the supplemental briefing was complete. 



                                                    -5-                                              6721
 


----------------------- Page 6-----------------------

III.	  STANDARD OF REVIEW 



              "When the superior court acts as an intermediate court of appeal in an 



administrative matter, we independently review and directly scrutinize the merits of the 

administrative decision."7  The "substitution of judgment" test applies to questions of law 



in which no agency expertise is involved.8 



IV.	   DISCUSSION 



       A.	    The     Plain   Language     Of   AS   12.63.020(a)(1)(B) Unambiguously 

              Requires Individuals Convicted Of Two Sex Offenses To Register For 

              Life. 



              The issue in these appeals is whether ASORA unambiguously requires 



individuals convicted in a single proceeding of two or more sex offenses to register for 



life as sex offenders.  Alaska Statute 12.63.020 provides, in pertinent part:  "(a) The duty 



of a sex offender to [register] . . . (1) continues for the lifetime of a sex offender . . . 

convicted of . . . (B) two or more sex offenses."9 



       7      Kingik v. State, Dep't of Admin., Div. of Ret. & Benefits , 239 P.3d 1243, 



1247-48 (Alaska 2010) (quotingMcMullen v. Bell , 128 P.3d 186, 189-90 (Alaska 2006)) 

(internal brackets omitted). 



       8      Id. at 1248 (citing Handley v. State, Dep't of Revenue , 838 P.2d 1231, 1233 



(Alaska    1992)).  The    Department    argues  that  its  decisions  here  involved  agency 

expertise, and that we should therefore apply the "reasonable basis test."  The result we 

reach on the merits makes it unnecessary to decide whether the reasonable basis test 

might apply here. 



       9	     AS 12.63.020(a) provides in relevant part: 



              The duty of a sex offender or child kidnapper to comply with 

              the requirements of AS   12.63.010 for each sex offense or 

              child kidnapping 

                     (1) continues for the lifetime of a sex offender or child 

                     kidnapper convicted of 

                                                                              (continued...) 



                                             -6-	                                      6721
 


----------------------- Page 7-----------------------

                 Ward and Boles read this statute, as it applies to them, to require multiple 



sex offense convictions entered at different times. They read the statute as though it were 



written to require lifetime registration of a sex offender against whom "two or more sex 



offense   convictions   have   been   entered."       They   would   therefore   effectively   read   the 



statute as though it provided for lifetime registration for a person with "two or more 



convictions   of   sex   offenses."     Ward   and   Boles   do   not   contend   that   this   is   the   only 



possible reading of the statute; they seem to concede that the statute can also be read as 



the Department proposes.   But they argue that since the statute is susceptible to multiple 



reasonable interpretations, the rule of lenity applies.            The rule of lenity provides:        "If a 



statute establishing a penalty is susceptible of more than one meaning, it should   be 

construed so as to provide the most lenient penalty."10 



                 The two superior courts reached different conclusions regarding the plain 



language of AS 12.63.020.  The Boles superior court ruled that neither the Department's 



        9(...continued) 



                                 (A) one aggravated sex offense; or 

                                 (B) two or more sex offenses, two or more child 

                                 kidnappings, or one sex offense and one child 

                                 kidnapping;       for  purposes     of   this  section,   a 

                                 person convicted of indecent exposure before a 

                                 person       under     16    years     of    age    under 

                                 AS   11.41.460   more   than   two   times   has   been 

                                 convicted of two or more sex offenses; 

                         (2) ends fifteen years following the sex offender's or 

                         child    kidnapper's      unconditional      discharge    from    a 

                         conviction      for  a  single   sex   offense   that  is  not   an 

                         aggravated sex offense . . . . 



        10       State v. Andrews, 707 P.2d 900, 907 (Alaska App. 1985) (adopted by State 



v. Andrews , 723 P.2d 85, 86 (Alaska 1986)). 



                                                    -7-                                               6721
 


----------------------- Page 8-----------------------

interpretation nor Boles's interpretation was unreasonable.                  The  Ward superior court 



ruled that "the plain language of the statute favors the state's position." 



                 Statutory interpretation in Alaska begins with the plain meaning of the 

statute's    text.11  But    "the   plain   meaning     of  a  statute   does   not  always     control   its 



interpretation";   "legislative   history   can   sometimes   alter   a   statute's   literal   terms."12 



Nonetheless, under our sliding-scale approach to statutory interpretation, a statute's plain 



language      remains    significant:     "the   plainer   the   language    of   the  statute,  the   more 

convincing contrary legislative history must be."13 



                 We   read   the   text   of   AS   12.63.020   as   distinguishing   between   persons 



convicted of one sex offense and persons convicted of two or more sex offenses.  The 



statute   draws   the   distinction   based   on   the   number   of   offenses,   not   the   number   of 



convictions. If it distinguished based on the number of convictions, we would expect the 



statute to refer to "convictions," and, in particular, to refer to persons with "two or more 



convictions of sex offenses."  Instead, the statute requires lifetime registration for a sex 



offender "convicted of . . . two or more sex offenses . . . ."              Ward and Boles were each 



convicted of two sex offenses. 



                 The fact that the statute requires an offender to be convicted of multiple sex 



offenses does not imply a requirement of multiple prosecutions or multiple, separate 



convictions;   it   is   common   for   a   defendant   to   be   tried   for   and   convicted   of   several 



offenses in the same proceeding and by entry of a single judgment.                   The statute's plain 



        11       City of Kenai v. Friends of Recreation Ctr., Inc., 129 P.3d 452, 458-59 



(Alaska 2006). 



        12       Bartley v. State, Dep't of Admin., Teacher's Ret. Bd. , 110 P.3d 1254, 1258 



(Alaska 2005). 



        13       Id. (internal citation and quotation marks omitted). 



                                                    -8-                                               6721
 


----------------------- Page 9-----------------------

language gives no indication that the term "two or more offenses" instead means "two 



or   more   separate   arrests,   charging   instruments,   or   convictions."        On   its   face,   then, 



AS 12.63.020(a)(1)(B) plainly requires lifetime registration for a person convicted of two 



or more sex offenses, even if the person was convicted of multiple sex offenses by a 



single judgment in a single proceeding. 



                 Ward and Boles do not assert that this reading of the statute is unreasonable. 



They instead argue that their reading is also reasonable, and that the statute is therefore 



ambiguous.   But the text of subsection .020(a)(1)(B) does not contain any language that 



would     impose     the  additional    requirement      -    that  there   be  multiple    proceedings, 



convictions, or judgments - perceived by Ward and Boles.  We therefore conclude that 



the text of the subsection is not reasonably susceptible to the reading they propose, and 



that the subsection's text is not ambiguous. 



                Nor is it rendered ambiguous when read in context of other passages in 



ASORA.   Ward and Boles argue that "[t]he statute does not define the term 'offense,' " 



or   "explain whether the term 'offense' refers to a single felony conviction as opposed 

to a single criminal prosecution."14        But ASORA, in AS 12.63.100(6), does define "sex 



offense."     That   subsection   lists   each   crime   that   is   a   "sex   offense"   for   purposes   of 

ASORA.15       Therefore, under subsection .020(a)(1)(B), a person "convicted of . . . two 



or   more"   of   the   crimes   listed   in   AS   12.63.100(6)   is   subject   to   lifetime   registration. 



Black's Law Dictionary defines "crime" as:   "An act that the law makes punishable; the 



        14       The   arguments   Ward   and   Boles   make   are   nearly,   but   not   completely, 



identical.   Because the differences are immaterial, we attribute the arguments to both 

men.  Likewise, when we quote either's arguments, we attribute the quoted passages to 

both men so long as the quoted language accurately reflects their common arguments. 



        15       AS 12.63.100(6)(A)-(C).         Ward was convicted under AS 11.41.438, and 



Boles was convicted under AS 11.41.436(a)(2); a violation of each statute is defined as 

a sex offense by AS 12.63.100(6)(C)(i). 



                                                    -9-                                              6721
 


----------------------- Page 10-----------------------

breach of a legal duty treated as the subject-matter of a criminal proceeding."16            Per the 



plain language of subsections .100(6) and .020(a)(1)(B), then, an individual who has 



been convicted of two crimes, each of which constitutes "[a]n act that the law makes 



punishable," is subject to lifetime registration.        Ward and Boles each committed two 



separate "act[s] that the law makes punishable"; each was convicted of two sex offenses; 



the plain language of the statute requires each to register for life. 



                ASORA's treatment of certain crimes, including indecent exposure and 



harassment, confirms that the legislature was capable of framing language containing a 



chronological       or   sequential    requirement      when     it  wished.       Alaska     Statute 



12.63.100(6)(C)(iv)       establishes    that  the  term   "sex  offense,"    for  purposes    of  the 



registration statute, includes a violation of the indecent exposure statute "if the indecent 



exposure is before a person under sixteen years of age and the offender has a previous 

conviction   for   that   offense."17  Likewise,   subsection   .100(6)(C)(viii)   provides   that 



harassment in   the first degree, when committed by means of offensive contact with 

"another person's genitals, buttocks, or female breast,"18 is a sex offense if "the offender 



has    a  previous  conviction     for  that  offense."19   We     follow   the  general    rule  that 



"[w]henever possible, each part or section of a statute should be construed with every 

other   part or section, so   as   to   produce   a   harmonious   whole."20  Applying   this   rule, 



subsections .100(6)(C)(iv) and (viii) demonstrate that, as the Department argues, the 



        16      BLACK 'S   LAW    DICTIONARY      427   (9th   ed.   2009). The   term   "crime"   is 



synonymous, according to Black's, with the term "offense."  Id. 



        17      Emphasis added. 



        18      AS 11.61.118(a)(2). 



        19      AS 12.63.100(6)(C)(iv) (emphasis added). 



        20      Forest v. Safeway Stores, Inc. , 830 P.2d 778, 781 (Alaska 1992). 



                                                -10-                                           6721
 


----------------------- Page 11-----------------------

legislature knew how to include temporal requirements within ASORA when it intended 



to do so.  The legislature's specific directive that only those individuals with "previous" 



convictions for certain offenses would be subject to sex offender status demonstrates that 



it did not intend to impose an equivalent requirement for those convicted of different sex 



offenses. 



                In   short,   the   plain   language   of   AS   12.63.020(a)(1)(B)   unambiguously 



requires individuals convicted of two or more of the offenses Ward and Boles committed 



to register for life, and other provisions of ASORA confirm that this result was intended 



by the legislature.    Ward and Boles's reading is not permitted by the provision's plain 



language.     This does not end our analysis; we now consider the statute's legislative 



history. But, under our sliding-scale approach to statutory interpretation, "the plainer the 

language of the statute, the more convincing contrary legislative history must be."21 



        B.	     ASORA's Legislative History Does Not Clearly Establish The Purpose 

                Underlying The "Two Or More Offenses" Provision. 



                Ward and Boles argue that ASORA's legislative history "strongly suggests 



that the legislature [only intended] repeat offenders" to have to register for life.               They 



acknowledge that legislators were presented with "information that . . . there was little 



hope of rehabilitation for sexual offenders," causing "many in the legislature" to support 



a lifetime registration requirement for all sex offenders. Thus, Ward and Boles argue that 



the legislature's decision to impose lifetime registration on persons with two or more 



non-aggravated offenses, but not on persons with a single non-aggravated offense, is 



evidence of a legislative intent to encourage rehabilitation.  They identify an instance in 



which a legislator discussing ASORA used the term "repeat offenders" and argue that 



"the   essence   of   the   discussions   before   the   legislature   was   that   a   person   who   was 



        21      Chokwak v. Worley, 912 P.2d 1248, 1251 (Alaska 1996). 



                                                  -11-                                               6721 


----------------------- Page 12-----------------------

convicted     two    or  more    times   .   .   .   posed  the  danger  that   the  lifetime  registration 



requirement was intended to protect against." 



                The Department disagrees; it argues that "there is nothing in the legislative 



history   of   ASORA       indicating   that   the   legislature   intended   to   impose   a   sequential 



requirement."       According       to  the   Department,      "ASORA's        provision    for  lifetime 



registration reflects the legislature's judgment that a person who has committed multiple 



sex offenses is more likely to reoffend than a person who has committed only a single, 



isolated offense."     In support, the Department identifies testimony about sex offender 



recidivism and argues that ASORA was not enacted for rehabilitative purposes.  The 



Department concludes that because "[g]iving offenders a second chance is irrelevant" to 



ASORA's goals, the legislature did not intend to create a sequential requirement. 



                The superior court in  Ward determined that "the legislative history gives 



little or no indication that the legislature thought about the question of whether multiple 



convictions need to occur sequentially to trigger lifetime registration."                 The superior 



court   in  Boles   determined   that   the   hearing   testimony   identified   by   the   parties   was 



"opposing" and could be read as supporting either interpretation of ASORA. 



                1.       Enactment of the "two or more offenses" provision 



                House Bill 69, which later became ASORA, was discussed in committee, 

revised in subcommittee, and amended before its passage in 1994.22                    As noted by the 



parties,   a   great   deal   of   committee   discussion   and   testimony   related   to   sex   offender 



recidivism.    Over the course of several hearings, legislators repeatedly heard the bill's 



supporters testify that sex offenders often could not be rehabilitated, and that registration 



        22      Ch. 41, SLA 1994. 



                                                  -12-                                                6721 


----------------------- Page 13-----------------------

served important deterrence and public safety functions.23               This testimony appears to 



have    significantly    influenced     the  legislature.   The    official   "Legislative    Findings" 



prefacing ASORA read, in part:   "(1) sex offenders pose a high risk of reoffending after 



release    from    custody;    (2)  protecting    the  public   from   sex   offenders    is  a  primary 

government interest . . . ."24      The Department relies on this evidence to argue that the 



legislature determined "lifetime registration is appropriate for offenders convicted of 



more than one offense since rehabilitation of all sex offenders is highly unlikely and even 



more so in cases where an offender commits more than one offense." 



                Boles   and    Ward     assert   that   the  legislature's   unwillingness   to  impose 



lifetime registration on all sex offenders reflects a rehabilitative intent. In its early drafts, 

H.B.  69 did not include a lifetime registration requirement.25               But during committee 



hearings, legislators advocated for a lifetime registration requirement and rejected an 



        23      Minutes, Sen. Jud. Comm. Hearing on H.B. 69, 18th Leg., 1st Sess., #209 



(Apr. 14, 1993) (director of Department of Public Safety's domestic violence branch 

testified to "high likelihood of recidivism"); Minutes, House Fin. Comm. Hearing on 

H.B. 69, 18th Leg., 1st Sess. (Mar. 29, 1993) (legislator noted that "supporters of the 

legislation feel that sex offenders have a high recidivism rate" and   that "[t]he legislation 

is designed as a deterrent"); Minutes, House Jud. Comm. Hearing on H.B. 69, 18th Leg., 

1st   Sess.,   #236   (Feb.   26,   1993)   (citizen   testified   that   "there   was   no   proof   that   sex 

offenders could be cured"); Minutes, House Jud. Comm. Hearing on H.B. 69, 18th Leg., 

1st Sess., #250, 283, 320 (Feb. 10, 1993) (commissioner of Department of Corrections 

testified that he had never come across a rehabilitated pedophile); Minutes, House State 

Affairs    Comm.      Hearing    on   H.B.   69,   18th   Leg.,   1st  Sess.,  #400    (Feb.   2,  1993) 

(representative from domestic violence organization discussed high rates of recidivism). 



        24      Ch. 41,  1, SLA 1994. 



        25      See, e.g., Minutes, House Jud. Comm. Hearing on H.B. 69, 18th Leg., 1st 



Sess., #000, 022 (Feb. 10, 1993) (committee chairman asked sponsor why bill did not 

provide for lifetime registration). 



                                                  -13-                                             6721
 


----------------------- Page 14-----------------------

amended bill providing for longer, but not lifetime, registration periods.26   In response, 



an assistant attorney general expressed some concern during a committee hearing that 



a   lifetime    registration   requirement      might   present    legal   issues   relating   to  "the 

constitutionally required sentencing goal of rehabilitation of an offender."27            Legislators 



elicited additional testimony from the assistant attorney general, who, noting that the 



definition   of   "sex   offender"   included   those   convicted   of   some   "fairly   'minor'   sex 



offenses,"     was   concerned     "the   court   system    could    view    a  lifetime   registration 

requirement as inconsistent with rehabilitation of 'non-classic' sex offenders."28 



                Legislators favoring lifetime registration then inquired whether the laws of 



other    states  had   similar   provisions    and,   if  so,  whether   those   laws   had   survived 

constitutional challenge.29      After learning that Washington's tiered registration system 



had survived an appellate challenge, the House Judiciary Committee asked H.B. 69's 



sponsor to "break down its registration requirements in a manner similar to the [S]tate 

of Washington."30       The bill was thereafter revised to require lifetime registration for 



        26      Minutes, House Jud. Comm. Hearing on H.B. 69, 18th Leg.,   1st Sess., 



#352, 391 (Feb. 24, 1993) (legislator noted, in response to draft bill with maximum 20- 

year registration, that committee had "requested a lifetime registration requirement"). 



        27      Minutes, House Jud. Comm. Hearing on H.B. 69, 18th Leg., 1st Sess., #146 



(Feb. 10, 1993).       The assistant attorney general who made these remarks was likely 

referring to article I, section 12 of the Alaska Constitution, which provides:             "Criminal 

administration shall be based upon . . . the principle of reformation." 



        28      Minutes, House Jud. Comm. Hearing on H.B. 69, 18th Leg., 1st Sess., #671 



(Feb. 24, 1993). 



        29      Id. at #717-75. 



        30      Id. at #759. 



                                                 -14-                                            6721
 


----------------------- Page 15-----------------------

serious    sex  offenders,   but  not  for  multiple   sex  offenders.31    One    month    later,  a 



subcommittee of the House Finance Committee   revised the bill again to create the "two 

or more offenses" provision at issue in these appeals.32 



               This   evidence   of   legislative   intent   is   conflicting. Committee   members 



heard a great deal of testimony indicating that sex offenders could not be rehabilitated, 



and the legislative findings accompanying ASORA demonstrate that concerns about 

recidivism and public safety were the primary impetus for the law's passage.33             But the 



legislature created a tiered registration requirement, perhaps in response to concerns that 



lifetime registration for all sex offenders might violate "the constitutionally required 



        31     Minutes, House Jud. Comm. Hearing   on   H.B. 69, 18th   Leg., 1st Sess., 



#112     (Feb. 26, 1993).    The draft presented on February 26 provided for "a lifetime 

registration requirement for offenders convicted of unclassified or class A felony sex 

offenses, a 20-year registration requirement for offenders convicted of class B or class 

C felony sex offenses, and a 10-year registration requirement for offenders convicted of 

a class A misdemeanor sex offense."  Id. 



        32     Minutes, House Fin. Comm. Hearing on H.B. 69, 18th Leg., 1st Sess., 



(Mar. 29, 1993).     This version of the bill, which passed the House and Senate, was not 

identical to the provision we are now considering.  The relevant provision of the bill that 

originally passed the legislature read:      "(a) the duty of a sex offender [to register] for 

each sex offense (1) continues for the lifetime of a sex offender convicted of two or more 

sex offenses; (2) ends fifteen years following the sex offender's unconditional discharge 

from a conviction for a single sex offense."       Ch. 41,  4, SLA 1994.       In 1998 ASORA 

was amended to distinguish between aggravated and non-aggravated offenses, and to 

address indecent exposure.  Chs. 81, 106, SLA 1998.   The legislative history underlying 

the 1998 amendments provides no additional insight into the "two or more offenses" 

provision. 



        33     See Ch. 41,  1, SLA 1994 ("[S]ex offenders pose a high risk of reoffending 



after release from custody . . . ."). 



                                               -15-                                           6721
 


----------------------- Page 16-----------------------

sentencing goal of rehabilitation."34   There is no evidence that the "two or more offenses" 



provision was also drafted in response to any constitutional or other concerns that may 

have driven the initial creation of a tiered registration requirement.35      This evidence of 



legislative intent is therefore inconclusive.     It does not imply any intention to impose a 



requirement of sequential convictions or any purpose to be served by such a requirement, 



and therefore does not justify departing from the statute's plain meaning. 



               2.     Discussion of repeat offenders 



               Ward and Boles also argue that legislators repeatedly mentioned "repeat 



offenders" during committee discussions; they contend that this proves the "two or more 



offenses" provision was only intended to apply to those who reoffend after being given 



a chance to reform.   But the legislative history relied upon by Ward and Boles uses the 

term "repeat offenders" only twice,36 and only one of these references is relevant to our 



analysis.37  In a hearing before the Senate Judiciary Committee on April 14, 1993, after 



       34      Minutes, House Jud. Comm. Hearing on H.B. 69, 18th Leg., 1st Sess., #146 



(Feb. 10, 1993). 



       35      There are no records from the subcommittee that drafted the "two or more 



offenses" provision. 



       36      Ward and Boles cite to the minutes of hearings held on February 24 and 



March     29,   1993,   as  additional  instances  in  which  legislators  "focused  on   'repeat 

offenders,' " but that term is absent from the record of both hearings. 



       37      Although     the   term   "repeat   offender"   was    used   by   Liz  Dodd,    a 



representative of the ACLU, during   one hearing, her use of the term is not relevant. 

Dodd's point in using the term was to protest H.B. 69's assumption that many offenders 

should be required to register at all; she argued that they were being treated as though 

they would inevitably reoffend, and contended that in fact many sex offenders were 

capable of rehabilitation.  Testimony of Liz Dodd at 57:30-1:00:00, Hearing on H.B. 69 

Before the Sen. Judiciary Comm., 18th Leg., 1st Sess. (Apr. 14, 1993).  The legislature 

was   apparently   unpersuaded   by   her   testimony   concerning   offenders'   rehabilitation 

                                                                                 (continued...) 



                                              -16-                                         6721
 


----------------------- Page 17-----------------------

the bill had been amended by including a graduated registration requirement, Senator 



George Jacko asked an aide to the bill's sponsor about the registration requirement for 



"repeat offenders": 



                Senator Jacko:  Is this legislation primarily focused on repeat 

                offenders, or does it differentiate between repeat offenders 

                versus say, someone who . . . . 



                Doug   Wooliver:        [Y]es.    The   differentiation   [   ]   between 

                repeat offenders and one-time offenders is in the link to the 

                registration     requirement.       For    a  person    with   only   one 

                conviction   of   a   sex   offense   (and   these   are   all   felony   sex 

                offenses) for one conviction, the registration requirement is 

                 15    years.      For   someone      with    multiple    offenses,    the 

                registration is for life.     And there are currently eight other 

                states that have a lifetime registration requirement.[38] 



                This   exchange   is   vague.     It   is   possible   that   Senator   Jacko   was   asking 



whether      the  statute   differentiated    between     individuals     who    had   been    given   the 



opportunity to be rehabilitated and those who were merely convicted of two sex offenses. 



Indeed, Ward and Boles suggest that the senator's reference to "repeat offenders" is 



evidence of such a distinction.        But the plain meaning of that term, and of its synonym 



"recidivist," provides no indication that the senator was inquiring about whether the 



statute drew such a distinction. 



                The term "repeat offender," which Black's Law Dictionary defines as "[a] 



person who has been convicted of a crime more than once," does not imply the refusal 



        37(...continued) 



prospects. 



        38      Testimony of Doug Wooliver at 49:50-50:30, Hearing on H.B. 69 Before 



the Sen. Judiciary Comm., 18th Leg., 1st Sess. (Apr. 14, 1993). 



                                                   -17-                                               6721 


----------------------- Page 18-----------------------

or failure to reform in the face of punishment.39  For example, a person convicted in two 



different proceedings of different sex offenses would satisfy this definition of "repeat 



offender" even if the offenses were committed contemporaneously and the judgments 



were entered in a sequence that gave no opportunity for rehabilitation. And in any event, 

the witness also stated that a person with "multiple offenses" must register for life.40 



Ward and Boles had multiple offenses.      The distinction advocated by Ward and Boles 



is likewise not found in the definition of "recidivist," which is synonymous with "repeat 



offender" and which is defined as "[o]ne who has been convicted of multiple criminal 

offenses."41 A serial offender, who commits many sex offenses over the course of years 



before finally being convicted, would be considered a repeat offender or recidivist.  We 



think it highly unlikely that the legislature meant to allow such an individual to avoid 



lifetime   registration  merely  because   he  evaded   prosecution   and  conviction  while 



committing multiple sex offenses over a long period.      The text of the provision closely 



tracks the definition of repeat offender, and the senator's question thus adds little to our 



analysis. Even assuming the senator was inquiring whether the provision gave offenders 



the opportunity to reform before imposing lifetime registration, the witness's response 



provides little evidence about whether this was the drafters' intent.  The exchange is not 



sufficient to rebut the plain language of AS 12.63.020(a). 



       39     BLACK 'S LAW DICTIONARY  1186 (9th ed. 2009). 



       40     Testimony of Doug Wooliver at 49:50-50:30, Hearing on H.B. 69 Before 



the Sen. Judiciary Comm., 18th Leg., 1st Sess. (Apr. 14, 1993). 



       41     BLACK 'S LAW DICTIONARY  1384 (9th ed. 2009). 



                                            -18-                                       6721
 


----------------------- Page 19-----------------------

                3.      Other portions of ASORA's legislative history 



                Ward and Boles also argue that the following explanation of ASORA's 



intended retroactive applications during a committee hearing supports their interpretation 



of the statute: 



                (Unknown committee member):   The ten year retroactive, is 

                that to all registration, or just for the ones that would expire 

                after 15 years? 



                Mr. Wooliver:        If you have been convicted of two or more 

                sex offenses, then it doesn't matter when those sex offenses 

                occurred.  So if you were convicted once in 1970 and once in 

                1980 of sex offenses, you would still be required to register 

                for life.[42] 



This testimony explained that ASORA was intended to be indefinitely retroactive for 



individuals convicted of two or more sex offenses. 



                Wooliver's testimony has little bearing on the interpretive issue here; the 



testimony does not support Ward and Boles's interpretation of the statute.  In discussing 



"two or more sex offenses," Wooliver chose to provide an example in which an offender 



was "convicted once" of a sex offense and then convicted again of another sex offense 

ten years later.43   Wooliver used this illustration to explain ASORA's retroactive effect; 



it was not offered to explain the term "two or more offenses."                No party disputes that 



individuals convicted of two sex offenses in separate prosecutions must register for life, 



and Wooliver's use of this example is not probative evidence that the legislature intended 



a meaning that would be contrary to the statute's plain language. 



        42      Testimony of Doug Wooliver at 25:00-25:35, Hearing on H.B. 69 Before 



the House Finance Comm., 18th Leg., 1st Sess. (Mar. 29, 1993). 



        43      Id. 



                                                  -19-                                               6721 


----------------------- Page 20-----------------------

                The most relevant portion of ASORA's legislative history also does not 



provide   a   clear   expression   of   legislative   intent.  After   the   "two   or   more   offenses" 



provision   was   added   to   H.B.   69,   Representative   Gene   Therriault,   a   member   of   the 



subcommittee that had revised the draft bill, explained the changes: "We've changed the 



duty to register now so that you have to register for life only if you've been convicted 



of two or more sex offenses.   And all other sex offenders will be required to register for 

a period of 15 years following unconditional discharge."44  Representative Therriault's 



explanation of the "two or more offenses" provision is consistent with the statute's plain 



language,     and   does   not   support    the  interpretation    proposed     by  Ward     and   Boles. 



                ASORA's 1993 legislative history provides no insight into the meaning of 



the provision at issue here. It provides no evidence that the legislature intended the "two 



or more offenses" language to include a chronological requirement. And the occasional 



comments about "repeat offenders" are not inconsistent with the plain meaning of the 



statute's words.      ASORA's legislative history does not contain evidence of a contrary 

legislative purpose sufficient to justify a departure from the statute's plain language.45 



                4.      Legislative history underlying 1998 amendments to ASORA 



                We   have   also   reviewed   the   legislative   history   of   amendments   made   to 

ASORA   in   1998.46       The   amendments   distinguished         between   aggravated   and   non- 



aggravated sex offenses, but they did not alter the relevant language of the provision - 



        44      Testimony of Representative Therriault at 5:25-5:40, Hearing on H.B. 69 



Before the House Finance Comm., 18th Leg., 1st Sess. (Mar. 29, 1993). 



        45      See Bartley v. State, Dep't of Admin., Teacher's Ret. Bd., 110 P.3d 1254, 



1258 (Alaska 2005). 



        46      Chs. 81, 106, SLA 1998. 



                                                  -20-                                             6721
 


----------------------- Page 21-----------------------

AS   12.63.020(a)(1)(B)   -   at   issue   in   these   appeals.47      Nonetheless,   during   a   1998 



legislative     committee      hearing,    an    assistant   attorney    general     directly   discussed 



AS 12.63.020(a)(1)(B) in a manner that might be read to support Ward and Boles's 



interpretation of the provision.        In response to questioning by members of the House 



Judiciary     Committee,   the     assistant   attorney    general   explained     that   she  understood 

ASORA, as originally enacted, to require "recidivous sex offenders to register for life."48 



The   summary   minutes   of   the   hearing   state   that   the   assistant   attorney   general   then 



informed the committee that  "Alaska's approach . . . is to treat recidivists who have had 



a   chance   to reform but to no avail,  as well as people convicted of the most serious 

offenses, as if they are predators, requiring verification of address every 90 days."49 



                 We   do   not   consider   testimony   given   after   a   statute's   passage   to   be   a 

relevant component of that statute's legislative history.50           ASORA was enacted in 1994. 



The     comments      we    discuss   here    were   made     in  1998.    Testimony       given    during 



consideration of amendments to a statute may be relevant to interpreting the specific 



        47       Ch. 106,  12, SLA 1998. 



        48       Minutes, House Jud. Comm. Hearing on H.B. 252, 20th Leg., 2d. Sess., 



#2261    (Feb. 16, 1998). 



        49      Id. at 2321. 



        50      See Marlow v. Municipality of Anchorage, 889 P.2d 599, 603 n.2 (1995) 



(holding that later statements of legislators are not relevant to legislative history); Dep't 

of Cmty. & Reg'l Affairs v. Sisters of Providence in Wash., 752 P.2d 1012, 1015 (Alaska 

1988) (holding that letter written by legislator three years after enactment was irrelevant 

to   legislative   history);  see    also 2A     NORMAN     J.  SINGER    &  J.D.  SHAMBIE       SINGER , 

STATUTES      &  STATUTORY        CONSTRUCTION           48:16   (7th   ed.   2007)   ("[P]ostenactment 

statements   made   by   a   legislator   as   to   legislative   intent   do   not   become   part   of   the 

legislative history of the original enactment."). 



                                                   -21-                                              6721
 


----------------------- Page 22-----------------------

provisions to be amended,51 but that is not the situation here:           AS 12.63.020(a)(1)(B)'s 



"two or more offenses" language was not amended in 1998, nor was there any discussion 



of amending the relevant text at issue here.   And although the assistant attorney general 



was   asked   to   explain   the   amendments   during   the   committee   hearing,   her   testimony 

regarding   the   "two   or   more   offenses"   provision   was   not   specifically   elicited.52  In 



response   to   a   legislator's   question  about   aggravated   sexual   offenses,   the   assistant 



attorney general explained that ASORA already required "recidivous sex offenders to 



register for life" and that the new bill would require aggravated offenders to do the 

same.53   She was not asked to specifically explain the "two or more offenses" provision; 



her   comments   regarding   recidivists   were   made   as   an   aside   and    do   not   affect   our 

analysis.54 



                Moreover, the assistant attorney general did not state that persons convicted 



of two offenses in the same proceeding are not required to register for life; she merely 

noted    that  recidivists  must   register    for  life.55 Her    testimony    clearly   evinces   her 



        51      See Rogers v. Frito-Lay, Inc., 611 F.2d 1074, 1080-81 (5th Cir. 1980) 



(discussing possible distinction between general irrelevance of post-enactment legislative 

history and potential relevance of post-enactment legislative history relating to statutory 

amendment). 



        52      Minutes, House Jud. Comm., Hearing on H.B. 252, 20th Leg., 2d. Sess., 



#1888-0672 (Feb. 16, 1998). 



        53      Id. at #2261. 



        54      Cf. Nelson v. Municipality of Anchorage, 267 P.3d 636, 641 (Alaska 2011) 



(holding attorney's committee testimony may be given weight when related to issue 

specifically elicited). 



        55      Minutes, House Jud. Comm., Hearing on H.B. 252, 20th Leg., 2d. Sess., 



#2321 (Feb. 16, 1998). 



                                                 -22-                                            6721
 


----------------------- Page 23-----------------------

understanding that those offenders "who have had a chance to reform but to no avail"56 



are required to register for life, but it does not demonstrate that she believed offenders 



convicted of multiple offenses in a single prosecution were only required to register for 



15 years.    Given that the assistant attorney general's comments need not necessarily be 



read to foreclose lifetime registration for offenders like Ward and Boles, they are not 



conclusive evidence of a contrary legislative intent that would be sufficient to overcome 



the   statute's   plain   language.  Accordingly,   we   conclude   that   the   legislative   history 



underlying the 1998 amendments provides no basis for departing from the plain meaning 



of AS 12.63.020(a)(1)(B). 



        C.	     Our     Cases    Interpreting      Sentence-Enhancement            Statutes    Are Not 

                Probative To Our Interpretation Of ASORA. 



                Ward and Boles argue that our interpretation of ASORA should be guided 



by cases interpreting other Alaska statutes.          They specifically identify Alaska cases in 



which this court and the Alaska Court of Appeals have interpreted various sentence- 



enhancement statutes containing "multiple conviction" provisions to mean that offenders 

must be convicted in separate prosecutions.57            Boles and Ward argue that this line of 



authority creates a "general rule" that "a conviction must precede a second conviction 



before some type of penalty[]enhancement is permitted."  The Department responds that 



the   statutes   considered   in   the   cases   cited   by  Ward   and  Boles   contained    language 



        56	     Id. 



        57      See   Gonzales   v.   State,   582   P.2d   630,   636   (Alaska   1978)   (interpreting 



mandatory minimum sentencing provision);  State v. Carlson, 560 P.2d 26, 30 (Alaska 

1977) (interpreting former "habitual criminal" statute); Smith v. State, 83 P.3d 12, 15-16 

(Alaska App. 2004) (interpreting presumptive sentencing statute); Sawyer v. State, 663 

P.2d 230, 231 (Alaska App. 1983) (same); State v. Rastopsoff, 659 P.2d 630, 640-41 

(Alaska App. 1983) (same). 



                                                  -23-	                                           6721
 


----------------------- Page 24-----------------------

suggesting the necessity of a "previous conviction";              ASORA, the Department argues, 



contains no such language pertinent to Ward and Boles. 



                The  Ward superior court evaluated the sentence-enhancement cases by 



looking to the language of the statutes at issue in those cases.            The superior court read 

the statutes considered in State v. Carlson,58 Gonzales v. State,59 and State v. Rastopsoff60 



and found that each provided for sentence enhancements only "when a defendant was 



'previously' convicted of other offenses."          The superior court reasoned that "ASORA, 



by contrast, contains no temporal element as to multiple convictions" and declined to 



read the sentence-enhancement cases "in isolation from the language of the statutes those 



courts were interpreting." 



                The Boles superior court determined that the sentence-enhancement cases 



were "relevant to the construction of the phrase 'two or more sex offenses.' "   The court 



held   that   ASORA   was   a   penal   statute   and   noted   that   cases   interpreting   other   penal 



statutes were relevant to its own analysis.   The court then ruled that "[a]pplying Carlson 



to ASORA's 'two or more offenses' provision means that two offenses sentenced at the 



same time, standing alone, would not result in . . . lifetime registration."                The Boles 



superior court did not discuss the text of the statutes. 



                We agree with the superior court in Ward that "the general principle set out 



in Carlson, Gonzale[s], and Rastopsoff cannot be read in isolation from the language of 



the statutes those courts were interpreting."  Because the sentence-enhancement statutes 



considered      in  those   cases   contained    explicit   temporal    requirements     not   found    in 



AS 12.63.020(a)(1)(B), the  Carlson line of cases is irrelevant to the issue presented 



        58      560 P.2d at 30. 



        59      582 P.2d at 636. 



        60      659 P.2d at 640. 



                                                  -24-                                               6721 


----------------------- Page 25-----------------------

here.61  Unlike those statutes, subsection .020(a)(1)(B) contains no language hinting at 



a requirement of sequential convictions.  The term "previously convicted" is absent from 



subsection .020(a)(1)(B), and there is no indication that "convicted of . . . two or more 

sex offenses" means "convicted and sentenced on two or more separate occasions."62 



Subsection .020(a)(1)(B) is not analogous to the statutes interpreted in the Carlson line 



of cases. 



                But   the  Carlson  line   of   cases   does   tend   to   support   the   Department's 



interpretation     of   ASORA.     Alaska     courts  follow   the  settled  principle   of   statutory 



construction     that  "when     a  legislature  adopts    specific  statutory   language    that  has 



previously been interpreted . . . in connection with other statutes involving a similar 



subject    matter,   the  legislature  is  presumed     to  have   intended   to  adopt   the  court's 

interpretation of that language."63      In these appeals, the opposite may be true:         had the 



legislature intended AS 12.63.020(a)(1)(B) to require sequential convictions when it 



enacted the text in 1994, we think it is likely it would have adopted language similar to 



that used in the sentence-enhancement statutes interpreted before 1994 by this court and 



by the court of appeals.   Notably, the legislature did use the term "previous conviction" 



        61      See Gonzales, 582 P.2d at 632 n.2, 636 (interpreting provision with phrase 



"previously been convicted"); Carlson, 560 P.2d at 27 n.2 (interpreting same phrase as 

Gonzales);     Wooley v. State, 221 P.3d 12, 17 (Alaska App. 2009) (interpreting language 

"convicted and sentenced on two or more separate occasions"); Smith, 83 P.3d at 15-16 

(interpreting phrase "previously been convicted two or more times"); State v. Andrews, 

707 P.2d 900, 905 (Alaska App. 1985), aff'd State v. Andrews, 723 P.2d 85, 86 (Alaska 

 1986) (considering provision that read "convicted of two or more crimes before the 

judgment on either has been entered");  Sawyer,  663 P.2d at 231 (interpreting phrase 

"previously convicted"); Rastopsoff , 659 P.2d at 633-34 (interpreting same statute as 

Sawyer). 



        62      Wooley, 221 P.3d at 17. 



        63      Rastopsoff , 659 P.2d at 635. 



                                                 -25-                                           6721
 


----------------------- Page 26-----------------------

elsewhere in ASORA, when it defined the circumstances under which indecent exposure 

offenses     would    be  considered     sex  offenses.64    The    legislature's   failure  to  include 



equivalent   language   in   AS   12.63.020(a)(1)(B)   indicates   that   it   intended   ASORA's 



lifetime registration requirement to apply to offenders like Ward and Boles. 



        D.	     Policy Considerations Do Not Compel The Adoption Of Ward And 

                Boles's Interpretation Of ASORA . 



                Ward   and   Boles   encourage   us   to   "consider   what   adopting   the   state's 



interpretation of the statute might lead to," arguing that it would be inadvisable to require 



"low risk" offenders to register for life although they do not pose "any danger to the 



public."    Because   we   have   determined   that   "the   language,   structure,   and   legislative 



history" of AS 12.63.020(a)(1)(B) require Ward and Boles to register for life, we decline 

to address the policy arguments they advance.65           When a statute unambiguously requires 



a certain result, policy arguments advocating for a different result "are better addressed 

to the legislature."66    "It is not a court's role to decide whether a particular statute or 



ordinance is a wise one; the choice between competing notions of public policy is to be 

made by elected representatives of the people."67             But we also note that the "multiple 



convictions" interpretation they propose would mean that a serial offender charged and 



convicted in a single proceeding of many sex offenses against many victims would not 



be required to register for life.   We think, given the history of the statute, that could not 



have been the legislature's intention. 



        64	     AS 12.63.100(6)(C)(iv). 



        65      See State v. Saathoff, 29 P.3d 236, 242 (Alaska 2001) (declining to address 



policy arguments when language and legislative purpose made statute's meaning clear). 



        66	     Id. 



        67      Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough, 



527 P.2d 447, 452 (Alaska 1974). 



                                                  -26-	                                            6721
 


----------------------- Page 27-----------------------

        E.	     Because AS 12.63.020(a)(1)(B) Is Unambiguous, The Rule Of Lenity 

                Does Not Apply. 



                Ward and Boles argue that we should apply the rule of lenity in interpreting 



AS 12.63.020(a)(1)(B). The Ward superior court determined that because the provision 



was   unambiguous,   the   rule   did   not   apply   to   its   analysis. The  Boles  superior   court 



determined that the provision was ambiguous and applied the rule of lenity in its process 



of statutory interpretation. 



                Under the rule of lenity, "[i]f a statute establishing a penalty is susceptible 



of more than one meaning, it should be construed   so as to provide the most lenient 

penalty."68   But the rule "comes into play only when, after employing normal methods 



of   statutory   construction,   the   legislature's    intent   cannot   be   ascertained   or   remains 

ambiguous."69      Because the plain language of AS 12.63.020(a)(1)(B) unambiguously 



requires Ward and Boles to register for life, and because our examination of the statute's 



legislative   history   does   not   reveal   a   contrary   legislative   intent,   there   is   no   basis   for 

applying the rule of lenity to "provide the most lenient penalty" in these appeals.70                We 



therefore do not need to decide whether ASORA is a "penal statute" for the purposes of 



the rule of lenity. 



        F.	     Ward And Boles Have Not Raised A Due Process Claim. 



                Ward and Boles argue that this court should construe ASORA "in a narrow 



sense in order to avoid . . . due process concerns."   In support, they cite a case in which 



the Hawaii Supreme Court held that its sex offender registration statute violated due 



        68      State v. Andrews, 707 P.2d 900, 907 (Alaska App. 1985) (adopted by State 



v. Andrews , 723 P.2d 85, 86 (Alaska 1986)). 



        69      De Nardo v. State , 819 P.2d 903, 907 (Alaska App. 1991). 



        70      Andrews , 707 P.2d at 907. 



                                                  -27-	                                            6721
 


----------------------- Page 28-----------------------

process.71    At oral argument, counsel for Ward and Boles clarified that they included 



these    constitutional     arguments     only   to  demonstrate      the  potential    consequences       of 



requiring low-risk offenders to register for life; they explicitly acknowledged in oral 



argument that Ward and Boles have not raised a free-standing constitutional claim before 



this court. 



                 In Doe v. State, Department of Public Safety (Doe I) we considered the 

constitutionality of ASORA as applied to individuals with set-aside convictions.72                    After 



considering       "the   potentially     destructive    practical    consequences        that  flow    from 



registration," we determined that ASORA violated the protected liberty interests of sex 

offender registrants with set-aside convictions.73            We held: 



                 Because ASORA compels affirmative post-discharge conduct 

                 under     threat    of  prosecution,      because     this   conduct     is 

                 equivalent     to  that  often   required    by   criminal    judgments, 

                 because this sort of conduct could not be compelled absent a 

                 criminal adjudication or its equivalent, because the conviction 

                 (since set aside) is the event that triggers these duties, and 

                 because the requirement impairs one's post-set-aside freedom 

                 to   be   let   alone,   we   conclude   that   it   violates   Doe's   liberty 

                 interests to require him to register under ASORA . . . .[74 ] 



                 Careful review of Ward and Boles's briefs reveals that they do not raise any 



constitutional challenge apart from their unsuccessful interpretive argument.                     We have 



determined   that   AS   12.63.020(a)(1)(B)   unambiguously   requires   Ward   and   Boles   to 



register for life, and we have not been asked to consider the statute's constitutionality as 



        71       State v. Guidry, 96 P.3d 242, 244 (Haw. 2004). 



        72       92 P.3d 398, 404 (Alaska 2004). 



        73       Id. at 410. 



        74       Id. 



                                                    -28-                                              6721
 


----------------------- Page 29-----------------------

applied   to   individuals   convicted   of   two   sex   offenses   in   a   single   prosecution.   It   is 



therefore unnecessary to consider what effect Doe I might have, if any. 



V.      CONCLUSION 



               We AFFIRM the order in  Ward that affirmed the Department's decision 



that Ward must register for life as a sex offender, REVERSE the order in Boles  that 



reversed the Department's decision that Boles must register for life as a sex offender, and 



REMAND for entry of an order affirming the Department's decision regarding Boles. 



                                               -29-                                           6721
 

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