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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept. of Public Safety v. Doe I (8/10/2018) sp-7270

State, Dept. of Public Safety v. Doe I (8/10/2018) sp-7270

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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@akcourts.us.  



                       THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



STATE  OF  ALASKA,
                                                 )  

                                                                    )     Supreme Court Nos.  S-15821/16403  

DEPARTMENT  OF  PUBLIC  SAFETY                                                                              

                                                               ,
 

                                                                    )     (Consolidated)  

                     Appellant,                                     )  

                                                                    )     Superior Court No. 3AN-14-08325 CI  

                                                                                                                                   

           v.                                                       )  

                                                                    )     O P I N I O N  

                                                                                              

JOHN DOE I,                                                         )  

                     

                                                                    )     No. 7270 - August  10, 2018  

                                                                                                                

                     Appellee.                                      )  

                                                                    )  

                                                                    )  

JOHN DOE II,                                                        )  

                     

                                                                    )     Superior Court No. 3AN-15-04577 CI  

                                                                                                                                   

                     Appellant,                                     )  

                                                                    )  

           v.                                                       )  

                                                                    )  

STATE OF ALASKA,                                                    )  

                    

DEPARTMENT OF PUBLIC SAFETY                                         )  

                                                 

                                                                    )  

                     Appellee.                                      )  

                                                                    )  



                     Appeal in File No. S-15821 from the Superior Court of the  

                                                                                                                

                                  

                     State of Alaska, Third Judicial District, Anchorage, Catherine  

                                                                                                      

                     M. Easter, Judge.  

                                       



                     Appeal in File No. S-16403 from the Superior Court of the  

                                                                                                                

                     State of Alaska, Third Judicial District, Anchorage, Erin B.  

                                                                                                                 

                     Marston, Judge.  

                                     


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

                            Appearances in File No. S-15821:                                         John J. Novak, Assistant          

                            Attorney               General,              Criminal                Division              Central             Office,  

                            Anchorage,    and    Craig    W.    Richards,    Attorney    General,  

                            Juneau, for Appellant State of Alaska, Department of Public                                                      

                            Safety.   John Doe I, pro se, Pacific, Washington, Appellee.                                           



                            Appearances   in   File   No.   S-16403:     Darryl   L.   Thompson,  

                            Darryl L. Thompson, P.C.,                                  Anchorage, for Appellant John                            

                            Doe II.         John J. Novak, Assistant Attorney General, Criminal                                         

                            Division Central Office, Anchorage, and Jahna Lindemuth,                                              

                            Attorney   General,   Juneau,   for   Appellee   State   of   Alaska,  

                            Department of Public Safety.                   



                            File   No.   S-15821   before:     Stowers,   Chief   Justice,   Fabe,  

                            Maassen,               and         Bolger,            Justices.             [Winfree,              Justice,            not  

                            participating]  



                            File No. S-16403 before:  Stowers, Chief Justice, Maassen,  

                                                                                                                                      

                            Bolger, and Carney, Justices, and Matthews, Senior Justice.*  

                                                                                                                                                            

                                                                           

                            [Winfree, Justice, not participating]  



                                       

                            PER CURIAM.
  

                                                                                     

                            STOWERS, Chief Justice, concurring.
  

                                                                                                             

                            FABE, Justice, concurring in File No. S-15821.
  

                                                                                                                                            

                            MATTHEWS, Senior Justice, concurring in File No. S-16403.
  



I.            INTRODUCTION  



                                                                                                                                                                                 

                            John Doe I and John Doe II are two separate individuals being required by  



                                                                                                                                                                                 

the Department of Public Safety (DPS) to register as sex offenders in Alaska based on  



                                                                                                                                                                              

their  out-of-state  convictions.                                 DPS  argues  that  Doe  I's  Washington  convictions  and  



                                                                                                                                                                         

Doe II's California conviction are "similar" to the Alaska offense of attempted sexual  



                                                                                                                                                                             

abuse of a minor under AS 11.31.100 and AS 11.41.436(a)(2), making both Doe I and  



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



Constitution and Alaska Administrative Rule 23(a).                                              



                                                                                        -2-                                                                                7270  


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

 Doe II subject to Alaska's sex offender registration requirement.                                                                                                                                                                                                                                                                                One superior court                                                        



judge  determined  that  Doe  I  is  not  required  to  register;  another  superior  court  judge  



 determined   that Doe                                                                                       II   is   required   to   register.    The   cases have                                                                                                                                                                    been   consolidated   on  



 appeal.   We conclude that neither the Washington nor the California laws under which                                                                                                                                                                                                                                                                                                                                  



 Doe I and Doe II were convicted are similar to the relevant Alaska law and therefore hold                                                                                                                                                                                                                                                                                                                                       



 that neither Doe I nor Doe II is required to register under Alaska law.                                                                                                                                                                                                                                                                



 II.                               FACTS AND PROCEEDINGS                                                     



                                   A.                               DPS v. Doe I                                                    , S-15821   



                                                                     In June 2011, at the age of 51, John Doe I pleaded guilty to two counts of                                                                                                                                                                                                                                                                                             



 "communicating with a minor for immoral purposes" in violation of the Revised Code of                                                                                                                                                                                                                                                                                                                                                       



 Washington (RCW) 9.68A.090; violation of this statute is a gross misdemeanor.                                                                                                                                                                                                                                                                                                                                          In his  



 guilty plea, Doe I admitted that "between October 1, 2009 and October 31, 2009, on two                                                                                                                                                                                                                                                                                                                                              



  separate occasions, [he] communicated with [an 11-year-old] . . . for an immoral purpose                                                                                                                                                                                                                                                                                                                      



 of a sexual nature."                                                                               The Washington superior court sentenced Doe I to two consecutive                                                                                                                                                                                                                        



 twelve-month   sentences   and   suspended   the   sentences,   ordering   three   months   of  



 confinement for each count and four years of probation.                                                                                                                                                                                                                                The court ordered him to obtain                                                                                                 



 a sexual deviancy evaluation, to have no contact with the victim and "no unsupervised                                                                                                                                                                                                                                                                                              

 contact with minors," and to register as a sex offender.                                                                                                                                                                                                                            1  



                                                                                                                                                                                                                                                                                                                                                                                                        

                                                                     In  April  2014  Doe  I  formally  petitioned  the  Alaska  DPS  Sex  Offender  



                                                                                                                                                                                                                                                                                                                                                                                                            

 Registry for a determination whether he would be required to register as a sex offender  



                                   1                                 Doe I was required to register as a sex offender in his county of residence                                                                                                                                                                                                                                                        



 in Washington for a period of ten years.                                                                                                                                                                   Doe v. State                                                      , 352 P.3d 500, 502 (Idaho 2015).                                                                                                                                           

 Because   RCW   9.68A.090   is   a   misdemeanor,   under   Washington   law   his   registration  

 information was to be "used only for law enforcement purposes" and was not available                                                                                                                                                                                                                                                                                                                    

 "on the publicly accessible Washington sex offender website."                                                                                                                                                                                                                                                             Id.   Doe I acknowledged     

 during oral argument before our court that                                                                                                                                                                             Doe v. State                                                     , decided by the Idaho Supreme                                                                                   

 Court in June 2015, "is [his] case as well."                                                                                                                                            



                                                                                                                                                                                                                      -3-                                                                                                                                                                                                       7270
  


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

in Alaska.   He represented that he had an upcoming work project in Alaska that was  

                                                                                                                                     



unlikely  to  require  more  than  30  days  in  the  state  but  that  he  also  had  other  work  

                                                                                                                                   



prospects  in  Alaska  as  well  as  family  that  he  would  like  to  visit.                                 He  indicated  that  

                                                                                                                                     



"[p]rior to spending more time in Alaska, [he] wish[ed] to understand if [his] presence  

                                                                                                                              



[would] trigger a  registration  requirement."   In  June  2014  DPS informed Doe  I that,  

                                                                                                                                     



because  of  his  two  convictions  in  Washington,  he  must "register  [as  a  sex  offender]  

                                                                                                                             



quarterly, for life, while . . . work[ing] or liv[ing] in Alaska."  

                                                                                    



                     Doe  I  subsequently  filed  a  complaint  in  the  Alaska  Superior  Court  for  

                                                                                                                                       



declaratory judgment and injunctive relief, asking for a declaration that his conviction  

                                                                                                                           



under  RCW  9.68A.090  "is  not  'similar'  to  an  Alaska  sex  offense  as  defined  by  

                                                                                                                                       



AS 12.63.100" and that he was therefore not required to register as a sex offender in  

                                                                                                                                        



Alaska.  The superior court heard oral argument and issued an order ruling that Doe I was  

                                                                                                                                      



not required to register.  DPS appeals.  

                                                 



           B.        Doe II v. DPS , S-16403  

                                               



                     In October 2014 John Doe II was convicted of violating California Penal  

                                                                                                                                   



Code 647.6(a), "[a]nnoying or molesting child under 18."  After pleading no contest, he  

                                                                                                                                        



was sentenced to two years of probation; upon successfully completing probation, he  

                                                                                                                                        



would be permitted to "apply to the Court to have [his] conviction set aside pursuant to  

                                                                                                                                         



Section 1203.4 of the Penal Code."  He was required to register as a sex offender if he  

                                                                                                                                        



resided in California.  

                  



                     Doe II moved to Alaska prior to sentencing and did not register as a sex  

                                                                                                                                      



offender. In December 2014, upon determining that his California conviction was similar  

                                                                                                                                 



to the Alaska offense of attempted sexual abuse of a minor in AS 11.41.436(a)(2), DPS  

                                                                                                



informed him that he was required to register in Alaska.  He argued through a letter from  

                                                                                                                                    



his attorney to DPS that he was not a sex offender as defined in AS 12.63.100(5).  DPS  

                                                                                                                                     



treated  the  letter  as  an  administrative  appeal  and  sent  him  a  letter  affirming  its  

                                                                                                                                       



                                                                   -4-                                                             7270
  


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

determination that he must register as a sex offender in Alaska annually for 15 years                                                                                                     



based on his California conviction.                    



                               Doe II appealed to the superior court and the court granted him a limited                                                                             



stay   of   the   DPS   decision.    The   stay   required   him   to   register   but enjoined                                                                               DPS   from  



publically   disseminating   any   identifying   information   about   him   on   the   sex   offender  



website.    Oral argument was held and a written decision was issued affirming DPS's                                                                                                   



decision.   Doe II appeals.             



III.            STANDARD OF REVIEW                        



                               "Where the superior court acts as an appellate court reviewing a decision                                                                          



by   an   administrative   agency, we                                         independently   review   the   underlying   administrative  



                       2  

decision."                                                                                                                                                                                   

                            DPS argues that its agency decision involves agency expertise and is thus  



                                                                                  3  

                                                                                                                                                                            

subject to the "reasonable basis" test,  because DPS "has been responsible for interpreting  



                                                                                                                                                                                                   

and administering the Alaska Sex Offender Registration Act ('ASORA') ever since it  



                                                                                                                                                                                           

came  into  effect  in  1994."  However,  "where  the  agency's  expertise  provides  little  



                                                                                                                                                                                    

guidance to the court or where the case concerns statutory interpretation or other analysis  



                                                                                                                                                                                                

of legal relationships about which courts have specialized knowledge and expertise," the  



                                                                                                   4  

                                                                                                                                                                                     

                                                                                                         The  question  whether  a  law  of  another  

substitution  of  judgment  standard  applies. 



               2               State, Dep't of Nat. Res. v. Alaska Riverways, Inc.                                                                 , 232 P.3d 1203, 1207                   



(Alaska 2010).   



               3              Id.  



               4  

                                                                                                                                                                                   

                               Grimmett v. Univ. of Alaska, 303 P.3d 482, 487 (Alaska 2013) (quoting  

                                                                                                                                                                                             

N. Alaska Envtl. Ctr. v. State, Dep't of Nat. Res. , 2 P.3d 629, 633 (Alaska 2000)); see also  

                                                                                                                                                                                                 

Konecky  v.  Camco  Wireline,  Inc. ,  920  P.2d  277,  280  n.8  ("[W]hen  the  'issue  to  be  

                                                                                                                                                           

resolved turns on statutory interpretation rather than formulation of fundamental policy  

                                                                                                                                                                       

involving particularized expertise of administrative personnel, . . . we shall independently  

                                                                                                                                                                                                  

consider the meaning of the statute.' " (second alteration in original) (quoting Hood v.  

                                                                                                                                   

State, Workmen's Comp. Bd., 574 P.2d 811, 813 (Alaska 1978))).  



                                                                                                -5-                                                                                        7270
  


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

jurisdiction   is   "similar"   to   a   specified   Alaska   statute   is   a   question   of   statutory  



                                                                                                                                           5  

interpretation and is thus "within the scope of the court's special competency"                                                                      

                                                                                                                                             and "is  



                                                                                                                 6  

                                                                                                                                             

a question of law to which we apply our independent judgment."                                                      "We interpret statutes  



                                                                                                                                                     

 'according to reason, practicality, and common sense, considering the meaning of the  



                                                                                                              7 

                                                                                                            

 statute's  language, its  legislative  history, and  its  purpose.'  "                                                                    

                                                                                                                  Questions of statutory  



                                                                                                                                           

interpretation are decided on a sliding scale, which means that "the plainer the language  



                                                                                                                                       8  

                                                                                                                                 

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



IV.         DISCUSSION  



                                                                          

            A.          "Similar Law Of Another Jurisdiction"  



                                                                                                                                                    

                        When  interpreting  a  statute,  "we  begin  with  the  plain  meaning  of  the  



                           9  

                                                                                                                                                         

 statutory text."             ASORA requires 15 years of registration for individuals convicted of a  



                                                                                                                                                       

 single non-aggravated sex offense, and lifetime registration for individuals convicted of  



                                                                                                                     10  

                                                                                                                                            

two   or   more   sex   offenses   or   a   single   aggravated                                        offense.               Alaska         Statute  



                                                                                                                                                      

 12.63.100(6)(C)  defines  "sex  offense"  as  "a  crime,  or  an  attempt,  solicitation,  or  



            5           Union Oil Co. of Cal. v. Dep't of Revenue                                 , 560 P.2d 21, 23 (Alaska 1977)               



(citing  State v. Aleut Corp.                   , 541 P.2d 730, 736-37 (Alaska 1975)).                  



            6           Hendricks-Pearce v. State, Dep't of Corr. , 323 P.3d 30, 35 (Alaska 2014)  

                                                                                                                                                

(citing  Native  Vill.  of  Tununak  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  

                                                                                                                                                      

 Children's Servs., 303 P.3d 431, 440 (Alaska 2013)).  

                                                                                  



            7           Attorneys Liab. Prot. Soc'y, Inc. v. Ingaldson Fitzgerald, P.C. , 370 P.3d  

                                                                                                                                                  

 1101, 1105 (Alaska 2016) (quoting Municipality of Anchorage v. Stenseth , 361 P.3d 898,  

                                                                                                                                                   

904 (Alaska 2015)).  

                        



            8  

                                                                                                                                         

                        City of Valdez v. State, 372 P.3d 240, 248 (Alaska 2016) (quoting Peninsula  

                                                                                       

Mktg. Ass'n v. State , 817 P.2d 917, 922 (Alaska 1991)).  



            9  

                                                                                                                                                  

                        Hendricks-Pearce ,  323  P.3d  at  35  (citing  Ward  v.  State,  Dep't  of  Pub.  

                                                          

Safety, 288 P.3d 94, 98 (Alaska 2012)).  



            10          AS 12.63.020(a).  

                                



                                                                           -6-                                                                   7270
  


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

 conspiracy   to   commit   a   crime,   under   [one   of   the   listed   statutes]   or   a   similar   law   of  



 another jurisdiction                              ."    (Emphasis added.)                                 Because "similar" modifies "law of another                                                 



jurisdiction," based on the plain language of the statute, it is the                                                                                        law  that must be similar.                                     



 We therefore "employ a categorical approach by looking to the statute . . . of conviction,                                                                                                  



rather than to the specific facts underlying the crime" to determine whether that statute                                                                                                                

 is similar to one of the pertinent Alaska sex offenses under AS 12.63.100(6)(C).                                                                                                                       11  



                                                                                                                                                                                                                    

                                  Under the categorical approach, we compare the elements of the statute of  



                                                                                                                                                              12  

                                                                                                                                                                                           

 conviction to the elements of the allegedly similar Alaska statute.                                                                                                As in the presumptive  



                                                                                                                                                                                                      

 sentencing context, if the out-of-state statute is "more restrictive than the Alaska statute"  



                                                                                                                                                                                                                

 in such a way that "any offender who could be convicted under the [out-of-state] law  



                                                                                                                                                                                                                  

would be subject to conviction under the elements of the Alaska statute," the elements are  



                         13  

 "similar."                                                                                                                                                                                                                

                                However, "[e]ven if there might be conduct that would be penalized by the  



                                                                                                                                                                                                                

 [out-of-state]  statute,  but  not  Alaska's,  that  does  not  prevent  a  conclusion  that  the  



                                                                14  

                                           

 elements . . . are similar." 



                 11               See Esquivel-Quintana v. Sessions                                                   , 137 S. Ct. 1562, 1568 (2017) (alteration                                



 in original) (quoting                              Kawashima v. Holder                                    , 565 U.S. 478, 483 (2012)).                      



                 12               See Borja v. State                          , 886 P.2d 1311, 1313 (Alaska App. 1994).                                                  



                 13  

                                                                                                                                                                                                                     

                                  State v. Delagarza, 8 P.3d 362, 366 (Alaska App. 2000) (quoting Martin v.  

                                                                                                                                                                                                                    

State, 704 P.2d 1341, 1342 (Alaska App. 1985)); cf. Esquivel-Quintana, 137 S. Ct. at  

                                                                                                                                                                                                                  

 1568 ("Under [the categorical] approach, we ask whether ' "the state statute defining the  

                                                                                                                                                                                                                     

 crime  of  conviction"  categorically  fits  within  the  "generic"  federal  definition  of  a  

                                                                                                                                                                                               

 corresponding aggravated felony.'  In other words, we presume that the state conviction  

                                                                                                                                                                                                 

 'rested upon . . . the least of th[e] acts' criminalized by the statute, and then we determine  

                                                                                                                                                                                                                

whether that conduct would fall within the federal definition of the crime."  (second and  

                                                                                                                                                                                                                

 third alterations in original) (citation omitted) (first quoting Moncrieffe v. Holder , 569  

                                                                                                                                                                                                   

U.S. 184, 190 (2013); then quoting Johnson v. United States , 559 U.S. 133, 137 (2010))).  



                 14  

                                                                                       

                                  Delagarza , 8 P.3d at 367.  



                                                                                                         -7-                                                                                                 7270
  


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

                           In addition to considering the meaning of the language of a statute, we also                                                               



                                                                                     15  

consider its legislative history and purpose.                                                                                                                          

                                                                                          DPS argues that the legislative history and  



                                                                                                                                                                        

purpose  of ASORA  support "an evaluation of the full picture -  the elements of the  



                                                                                                                                                                    

offense as well as the facts of the actually engaged in conduct - so as to be able to make  



                                                                                                                                                                      

fully informed registration requirement decisions, rather than decisions restricted to only  



                       

comparing elements."  



                                                                                                                                                            

                           The  legislature  made  the  following  legislative  findings  when  enacting  



ASORA:  



                                        (1) sex offenders pose a high risk of reoffending after  

                                                                                                                                          

                           release from custody;  

                                                     



                                        (2)  protecting  the  public  from  sex  offenders  is  a  

                                                                                                                                                

                           primary governmental interest;  

                                                                         



                                        (3) the privacy  interests of persons convicted of sex  

                                                                                                                                            

                           offenses are less important than the government's interest in  

                                                                                                                                                

                           public safety; and  

                                                        



                                        (4)   the   release   of   certain   information   about   sex  

                                                                                                                                           

                           offenders to public agencies and the general public will assist  

                                                                                                                                         

                           in protecting the public safety.[16]  

                                                                           



                                                                                                                                                                    

                           Although the approach argued for by DPS might be consistent with these  



                                                                                                                                                      

legislative findings, the strict categorical approach also serves a protective purpose and  



                                                                                                                                                                       

is  not  contrary  to  the  legislative  findings.                                        We  disagree  with  DPS's  approach.                                         We  



                                                                                                                                                         

conclude that the plain meaning of the statute is not overcome by contrary legislative  



history.  



              15          Attorneys Liab. Prot. Soc'y, Inc. v. Ingaldson Fitzgerald, P.C.                                                                , 370 P.3d     



 1101, 1105 (Alaska 2016) (quoting                                    Municipality of Anchorage v. Stenseth                                     , 361 P.3d 898,       

904 (Alaska 2015)).       



              16  

                                                                                                                                                                          

                           Doe v. State , 189 P.3d 999, 1015-16 (Alaska 2008) (quoting Ch. 41,  1,  

           

SLA 1994).  



                                                                                    -8-                                                                             7270
  


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

                                 Having determined that AS 12.63.100(6)(C) requires a comparison of laws,                                                                                              



we next turn to the question of the meaning of "similar."                                                                               ASORA provides no definition                        



of "similar," so we look to the plain meaning of the term.                                                                     



                                We   find   it   useful   to   consider   how   other   states   define   the   standard   of  



comparative resemblance between their home statutes and those of other jurisdictions.                                                                                                                                



Idaho's sex offender registration statute employs a "substantially equivalent" standard for                                                                                                                  



determining whether a person convicted of a crime in another jurisdiction must register                                                                                             



                      17  

in Idaho.                                                                                                                                                                              

                            Under Idaho law, "substantially equivalent" in the sex offender registration  



                                                                                                                                                                                                             

context  "means  any  sex  offense  related  crime,  regardless  of  whether  a  felony  or  



                                                                                                                                                                                              

misdemeanor, that consists of similar elements defined in Title 18 of the Idaho Criminal  



                                                                                                                                                               18  

                                                                                                                                                                                                          

Code.  It does not mean exactly the same, nor exactly identical to."                                                                                                 Texas requires that  



                                                                                                                                                                                                           

the  out-of-state  violation  must  "contain[]  elements  that  are  substantially  similar"  for  



                                                                                                                                                                           19  

                                                                                                                                                                                                

registration to be required under its sex offender registration statutes.                                                                                                          New Mexico  



                                                                                                                                                                                                               

defines "sex offense" by listing specific offenses and indicating that "their equivalents in  



                                                                                                                                      20  

                                                                                                                                                                                              

any  other  jurisdiction"  are  included  in  its  definition.                                                                              And  Massachusetts  requires  



                                                                                                                                                                          21  

                                                                                                                                                                                                        

registration for any "like violation of the laws of another [jurisdiction],"                                                                                                  which has been  



                                                                                                                                                                                                           

defined  as  meaning  "a  conviction  in  another  jurisdiction  of  an  offense  of  which  the  



                                                                                                                                                                                                             

elements  are  the  same  or  nearly  the  same  as  an  offense  requiring  registration  in  



                17               Idaho Code Ann.  18-8304(1)(c) (2016).
                                           



                18              Doe v. State , 352 P.3d 500, 504 (Idaho 2015) (quoting Idaho Admin. Code.
  

                                                                                                                                                                                                     

r.  11.10.03.010.05 (2015)).  

                                              



                19  

                                 Tex.  Code  Crim.  Proc.  Ann.  art.  62.001(5)(H)  (West  2016).  



                20              N.M.  Stat.  Ann.     29-11A-3(I)  (West  2013).  



                21               Mass. Gen. Laws Ann. ch. 6,  178C (West 2016).  

                                                                                                                                            



                                                                                                      -9-                                                                                              7270
  


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

                                       22  

 Massachusetts."                               The   operative   wording   in   these   states'   statutes   ("substantially  



 equivalent," "substantially similar," "equivalents," "like violation") suggests a higher                                                                                                        



 degree of resemblance than does Alaska's use of the unqualified term "similar."                                                                                        



                                We also find it useful to consider dictionary definitions when assessing the                                                                                             

plain meaning of a term.23  The American Heritage Dictionary of the English Language  



                                                                                                                                                                                                         

 defines "similar" as "[h]aving a resemblance in appearance or nature; alike, though not  



                         24  

 identical."                                                                                                                                                                   

                                Webster's II New College Dictionary defines "similar" as "[r]esembling  



                                                                                 25  

                                                                                                                                                                                               

though not completely identical."                                                       And Merriam-Webster's online dictionary defines  



                                                                                                                                                                                                            26  

                                                                                                                                                                                  

 "similar" as "having characteristics in common" or as "alike in substance or essentials." 



                                                                                                                                                                                             

                                 Consistent  with  the  dictionary  definitions,  "a  similar  law  of  another  



                                                                                                                                                                                                     

jurisdiction" does not mean that the elements of the offense must be identical or even  



                                                                                                                                                                                                          

 substantially  equivalent,  but  the  elements  do  have  to  be  categorically  alike  with  no  



                                                                                                                                                                                                         

 significant differences.  A relatively broad reading of "similar" is also supported by the  



                                                                                                                                                                                                         

 legislative history and purpose of ASORA, because a broad reading helps promote the  



                22              Doe v. Sex Offender Registry Bd.                                              , 925 N.E.2d 533, 538 (Mass. 2010).                                                    Like  



 Idaho, Massachusetts also qualifies its definition by noting that "[t]he elements of the                                                                                                                

 offense   in   another   jurisdiction   need   not   be   precisely   the   same   as   the   elements   of   a  

 Massachusetts sex offense in order for it to constitute a 'like violation.' "                                                                                                 Id.  



                23  

                                                                                                                                                                  

                                See Benavides v. State, 151 P.3d 332, 335-36 (Alaska 2006).  



                24  

                                                     

                                Similar,                THE           AMERICAN                      HERITAGE                     DICTIONARY                         OF        THE          ENGLISH  

 LANGUAGE  (5th ed. 2011).                       



                25              Similar, WEBSTER'S  II N                                    EW  COLLEGE  DICTIONARY  (1st ed. 1995).                                            

                                                     



                26              Similar, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary  

                                                                                                       

/similar (last visited Apr. 19, 2018).  

                                                                       



                                                                                                    -10-                                                                                            7270
  


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

                                                                                                                                                                                                                            27  

 "primary governmental interest" of "protecting the public from sex offenders."                                                                                                                                                   We  



 construe the plain meaning of "similar" used in AS 12.63.100(6)(C) to require a relatively                                                                                                                        



broad standard for the degree of resemblance necessary                                                                                                         for sex offenders from                                           other  



jurisdictions to be subject to sex offender registration in Alaska.                                                                                        



                   B.                DPS v. Doe I                        , S-15821   



                                     Doe   I was                    convicted   of   two   counts   of communicating                                                                           with   a   minor for   



 immoral purposes in violation of RCW 9.68A.090, which provides that "a person who                                                                                                                                                 



 communicates with a minor for immoral purposes, or a person who communicates with                                                                                          



 someone the person believes to be a minor for immoral purposes, is guilty of a gross                                                                                                                                           



 misdemeanor."    Under RCW                                                         9.68A.011(5), a "minor"                                               is "any person under eighteen                                



 years of age."                          According to Washington case law, "communicate" means "conduct as                                                                                                                               



                                           28                                                                                                                                                   29  

 well as words,"                                                                                                                                            

                                                 and "immoral purpose" means "sexual misconduct." 



                                                                                                                                                                                                                             

                                     The allegedly similar Alaska offense is attempted sexual abuse of a minor  



                                                                                                                                                                                                                  

 in the second degree under AS 11.31.100 and AS 11.41.436(a)(2).  Under AS 11.31.100,  



                                                                                                                                                                                                                                      

 "[a] person is guilty of an attempt to commit a crime if, with intent to commit a crime, the  



                                                                                                                                                                                                                                         

person engages in conduct which constitutes a substantial step toward the commission of  



                                                                                                                                                                                                                             

 that crime."  Under AS 11.41.436(a)(2), sexual abuse of a minor is committed if, "being  



                                                                                                                                                                                                                                          

 16 years of age or older, the offender engages in sexual contact with a person who is  



                                                                                                                                                                                                                                         

 under 13 years of age or aids, induces, causes, or encourages a person under 13 years of  



                                                                                                                                                                                                                                         

 age to engage in sexual contact with another person."  "[S]exual contact" is defined in  



                   27                Doe   v.   State ,   189   P.3d   999,   1015   (Alaska   2008)   (quoting   Ch.   41,      1,  



 SLA 1994).   



                   28  

                                                                                                                                                          

                                     State v. Hosier, 133 P.3d 936, 941 (Wash. 2006).  



                   29  

                                                                                                                                                                                                      

                                     Id. ; State v. McNallie, 846 P.2d 1358, 1364 (Wash. 1993) ("[T]he statute   

prohibits communication with children for the predatory purpose of promoting their                                                                                                                                               

 exposure to and involvement in sexual misconduct.").                                                        



                                                                                                                  -11-                                                                                                           7270
  


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

AS 11.81.900(b)(59)(A) as "the defendant's (i) knowingly touching, directly or through                                                                                        



clothing, the victim's genitals, anus, or female breast; or (ii) knowingly causing the victim                                                                                    



to touch, directly or through clothing, the defendant's or victim's genitals, anus, or female                                                                                   



breast."  



                             A  comparison  between  RCW  9.68A.090  and  the  Alaska  offense  of  

                                                                                                                                                                                        



attempted sexual abuse of a minor in the second degree reveals some similarity in that  

                                                                                                                                                                                      



both involve sexual misconduct that is directed at a child victim.   However, there are  

                                                                                                                                                                                        



significant  differences  between  the  statutes,  such  as  the  fact  that  the  Alaska  statute  

                                                                                                                                                                                



requires conduct whereas the Washington statute may be violated through either conduct  

                                                                                                                                                                              

or words.30  

                                                                                                                                                                                        

                            The Alaska statute specifically requires attempted sexual contact, but the  



                                                                                                                                                                                       

Washington  statute  is  broader,  "prohibit[ing]  communication  with  children  for  the  



                                                                                                                                                                              

predatory   purpose   of   promoting   their   exposure   to   and   involvement   in   sexual  



                             31  

misconduct."                                                                                                                                                                            

                                   And the Alaska statute requires a victim to be under age 13 whereas the  



                                                                                                                                                                                 

Washington statute requires only that a victim be under age 18 or an adult victim whom  



                                                                                32  

                                                                                                                                                                   

the offender believes to be under 18.                                                 Because the Washington statute is significantly  



                                                                                                                                                                                           

broader than and different from the Alaska statute, Washington's statute is not similar to  



                                                                                                                                                                            

the Alaska offense of attempted sexual abuse of a minor in the second degree for purposes  



               30            See Hosier              , 133 P.3d at 941.            



               31  

                                                                                                                                                                                       

                             McNallie , 846 P.2d at 1364; see, e.g., Hosier , 133 P.3d 936 (affirming two  

                                                                                                                                                                         

convictions of communicating with a minor for immoral purposes where the defendant  

                                                                                                                                                                                            

left sexually explicit notes about a 13-year-old girl in the girl's front yard, and wrote a  

                                                                                                                                                                        

sexually  explicit  message  on  a  pair  of  underpants  left  in  the  fence  of  a  children's  

                                                                                                                  

playground where it was found by a group of small children).  



               32  

                                                                                                                                                                                

                             Because we conclude that the Washington statute is not similar to the Alaska  

                                                                                                                                                                                

statute on grounds distinct from the age of the victim, we do not decide in this appeal  

                                                                                                                                                                                   

whether  the  age  differences  in  themselves  make  the  laws  dissimilar  under  a  strict  

                          

categorical approach.  



                                                                                           -12-                                                                                     7270
  


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

of sex offender registration.  Doe I is therefore not required to register as a sex offender                                                                                                                                                                                                                                                                      



in Alaska, and we affirm the superior court's decision.                                                                                                                                                      



                               C.                           Doe II v. DPS                                                     , S-16403   



                                                             Doe    II    was    convicted    of    violating    California    Penal    Code    647.6(a)  



("Annoying or molesting child under 18"), which reads as follows:                                                                                                                                                                                                        



                                                                                           (a)(1) Every person who annoys or molests any child                                                                                                                                                                       

                                                             under 18 years of age shall be punished by [a fine of up to                                                                                                                                                                                                           

                                                             $5,000 and/or imprisonment for up to a year].                                                                                                                                  



                                                                                           (2)   Every   person who, motivated by an unnatural or                                                                                                                                                                                 

                                                             abnormal sexual interest in children, engages in conduct with                                                                                                                                                                                               

                                                             an adult whom he or she believes to be a child under 18 years                                                                                                                                                                                           

                                                             of age, which conduct, if directed toward a                                                                                                                                                               child under 18                                           

                                                             years   of age, would                                                                         be   a   violation   of this                                                                         section, shall be                                               

                                                             punished by [a fine of up to $5,000 and/or imprisonment for                                                                                                                                                                                                       

                                                             up to a year].              



In  People v. Phillips                                                                        , the California Court of Appeal interpreted California Penal Code                                                                                                                                                                                                                 



647.6(a) as consisting of four elements:                                                                                                                                            (1) "objectively and unhesitatingly irritating or                                                                                                                                                          



annoying conduct" that is "(2) motivated by an abnormal sexual interest in children in                                                                                                                                                                                                                                                                                                          



general or a specific child" and is (3) "directed at a child or children, though no specific                                                                                                                                                                                                                                                                          



child or children need be the target of the offense"; furthermore, "(4) a child or children                                                                                                                                                                                                                                                                         



                                                                                            33  

 [must   be]   victims."                                                                                                                                                                                                                                                                                                                                                     

                                                                                                              Doe  II's  conviction  does  not  specify  whether  it  was  under  



                                                                                                                                                                                                                                                                                                                                                                         

 subsection  (a)(1) (which  requires  a  victim  under age  18) or subsection  (a)(2) (which  



                                                                                                                                                                                                                                                                                                                                                                               

allows for an adult victim whom the offender believes to be under 18), so any facts found  



                                                                                                                                                                                                                                                                                                                                                                                               

by a court of law or conceded by Doe II could be considered for the limited purpose of  



                              33                              116  Cal.  Rptr.  3d  401,  411  (Cal.  App.  2010).  



                                                                                                                                                                                            -13-                                                                                                                                                                                    7270  


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

determining which subsection he was convicted under, but no such facts are available in                                                                                                                                                     

this case.               34  



                                                                                                                                                                                                                                              

                                     Again, the allegedly similar Alaska offense is attempted sexual abuse of a  



                                                                                                                                                                                                                                           

minor in the second degree under AS 11.31.100 and AS 11.41.436(a)(2), as described in  



                                                                                                                                                                                                                         

detail in the previous section.   Like RCW 9.68A.090, California Penal Code 647.6(a)  



                                                                                                                                                                                                                                          

broadly resembles the Alaska offense in that it involves sexual misconduct directed at an  



                                                                                                                                                                                                                                                   

underage victim. But again, there are significant differences between the statutes as well:  



                                                                                                                                                                                                                    

while  the  Alaska  offense  requires  an  attempt  at  actual  sexual  contact,  the  California  



                                                                                                                                                                                                                                      

statute has been interpreted to include engaging in offensive conduct with the intent that  



                                                                                                     35 

                                                                                                                                                                                                                     

it be observed by a child or children.                                                                     And the Alaska statute applies where the victim  



                                                                                                                                                                                                                                        

is under age 13 while the California statute applies where the victim is under 18 or the  



                                                                                                                        36  

                                                                                                                                                                                                                       

offender believes the victim to be under 18.                                                                                    Thus, the California offense of annoying  



                   34                A "modified categorical approach" is employed for divisible statutes, which                                                                                                                 



define multiple separate crimes.                                                             See Mathis v. United States                                                      , 136 S. Ct. 2243, 2249                             

(2016) (citing                         Descamps v. U.S.                                   , 133 S. Ct. 2276, 2283 (2013));                                                          Esquivel-Quintana v.   

Sessions, 137 S. Ct. 1562, 1568 n.1 (2017) (citing                                                                                     Gonzales v. Duenas-Alvarez                                                    , 549 U.S.     

 183, 187 (2007)).                                 Under the modified categorical approach, "the court may review the                                                                                                                   

charging documents, jury instructions, plea agreement, plea colloquy, and similar sources                                                                                                                                   

to determine the actual crime [of conviction]."                                                                                Esquivel-Quintana , 137 S. Ct. at 1568 n.1                                                                

(citing   Gonzales, 549 U.S. at 187).                                                                This permissible modified categorical approach is                                                                                      

different from the approach DPS urges us to adopt; it looks to the facts on record only to                                                                                                                                                 

determine which statutory crime was committed, and not when comparing that crime to                                                                                                                                                        

the allegedly similar Alaska statute.                                          



                   35  

                                                                                                                                                                                                                               

                                     People  v.  Phillips ,  116  Cal.  Rptr.  3d  401,  409,  412  (Cal.  App.  2010)  

                                                                                                                                                                                                                                      

(upholding a conviction for violating California Penal Code 647.6(a)(1) because it was  

                                                                                                                                                                                                                                  

reasonable for the jury to infer that the defendant "intend[ed] to be observed by some  

                                                                                                                                                                                                                                           

child" when he was "masturbating in his car while parked at the curb directly in front of  

                                                                                                                                             

a high school, on a school day, at school dismissal time").  



                   36  

                                                                                                                                                                                                                              

                                     Because we conclude that the California statute is not similar to the Alaska  

                                                                                                                                                                                                            (continued...)  



                                                                                                                   -14-                                                                                                            7270
  


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

or molesting a child under 18 is different from and substantially broader than the Alaska                                                                                        



offense of attempted sexual abuse of a minor in the second degree, and we conclude that                                                                                                  



                                                                                                                                          37  

the two are not similar for purposes of sex offender registration.                                                                                                                        

                                                                                                                                                Doe II is therefore not  



                                                                                                                                                             

required to register as a sex offender in Alaska, and the decision of the superior court is  



                                                                                                                                                                                     

reversed.  Doe II is remanded to the superior court for that court to address its stay order  



                                                                                                                                                                           

and order DPS to remove Doe II's information from the Alaska sex offender registry.  



V.             CONCLUSION  



                                                                                                                                                                                            

                              We  AFFIRM  the superior court's decision that Doe I is not required to  



                                                                                                                                                                                 

register as a sex offender in Alaska and REVERSE and REMAND the superior court's  



                                                                                                                                          

decision that Doe II is required to register as a sex offender in Alaska.  



               36(...continued)  



statute on grounds distinct from the age of the victim, we do not decide in this appeal  

                                                                                                                                                                                  

whether  the  age  differences  in  themselves  make  the  laws  dissimilar  under  a  strict  

                                                                                                                                                                                     

categorical approach.  

                          



               37  

                                                                                                                                                                                           

                              It  is  well  within  the  legislature's  prerogative  to  enact  a  definition  of  

                                                                                                                                                                                              

"similar" or amend AS 12.63.100(6)(C) or amend the underlying sex offense crimes if it  

                                                                                                                                                                    

wishes to broaden the scope of sexual offenses that require registration in Alaska.  



                                                                                            -15-                                                                                     7270
  


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

 STOWERS, Chief Justice, concurring.                                                                     



                                                    I agree with the court's opinion.                                                                                             I write separately to comment on Senior                                                                                              



Justice Matthews's proposed approach to determining whether an out-of-state sexual                                                                                                                                                                                                                                     



offense law is "similar" to an Alaska sexual offense law such that registration would be                                                                                                                                                                                                                                               



required in Alaska under the Alaska Sex Offender Registration Act.                                                                                                                                                                                     



                                                    As explained in the court's main opinion, AS 12.63.100(6)(C) defines "sex                                                                                                                                                                                                   



offense" as "a crime, or an attempt, solicitation, or conspiracy to commit a crime, under                                                                                                                                                                                                                                 



 [one   of   the   listed   sex   offense   statutes]   or   a   similar   law   of   another   jurisdiction."   



(Emphasis added.)                                                           Today's opinion applies a strict categorical approach in comparing                                                                                                                                                         



the elements of Alaska's relevant sex offense statute with the elements of the out-of-state                                                                                                                                                                                                         



 sex offense statute under which the person was convicted to determine whether the two                                                                                                                                                                                                                                            



laws are similar.                                                    The court does so because "it is the                                                                                                                law  that must be similar" and                                                                          



therefore "we compare the elements of the statute of conviction to the elements of the                                                                                                                                                                                                                                              



                                                                                                                                 1  

allegedly similar Alaska statute."                                                                                                    



                                                    Senior Justice Matthews argues that the court's approach is too narrow. He  

                                                                                                                                                                                                                                                                                                                                     



 suggeststheanalyticalapproachshould beginwith thiscategorical statutory comparison,  

                                                                                                                                                                                                                                                                                                 



but if the comparison does not yield a conclusion that the two statutory offenses are  

                                                                                                                                                                                                                                                                                                                                    



 similar, then a second-stage analysis should ensue: the court should consider the factual  

                                                                                                                                                                                                                                                                                                                       



conduct underpinning the out-of-state conviction to determine whether that conduct  

                                                                                                                                                                                                                                                                                                                

would have constituted a sexual offense under Alaska law.2  To determine these facts,  

                                                                                                                                                                                                                                                                                                     



the court could permissibly consider the complaint or indictment, jury instructions, court  

                                                                                                                                                                                                                                                                                                                             



                          1                         Op.  at  7  (emphasis  in  original).  



                          2                         Matthews,  Senior  Justice,  Conc.  at  21-22.  



                                                                                                                                                                 -16-                                                                                                                                                                         7270  


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

                                                                                                                                                            3  

findings of fact in a judge-tried case, and plea and sentencing transcripts.                                                                                    Senior Justice   



Mathews argues that this law-plus-conduct approach better promotes the legislature's                                                                               



intent in enacting ASORA and that the court's strict categorical approach "thwart[s] the                                                                                                



legislature's   intent   because   it   would   prevent   [our]   law   from   reaching   some   of   the  



offenses identified by the [legislature] only because of idiosyncracies in the criminal                                                                                     



                                                                    4  

codes of foreign jurisdictions."                                         



                             As a purely theoretical matter, I agree with Senior Justice Matthews.  The  

                                                                                                                                                                                      



law-plus-conduct approach suggested by Senior Justice Matthews - like that employed  

                                                                                                                                                                         

by the New Mexico Supreme Court in State v. Hall5 - would result in more out-of-state  

                                                                                                                                                                      



convicted sex offenders being required to register with the Alaska sex offender registry  

                                                                                                                                                                              



and likely would better accomplish the policy goals the legislature envisioned when it  

                                                                                        



enacted ASORA.  The problem is that the legislature used specific language when it  

                                                                                                                                                                                           



crafted the statute requiring similarity: the legislature defined "sex offense" as "a crime,  

                                                                                                                                                                                 



or an attempt, solicitation, or conspiracy to commit a crime, under [one of the listed sex  

                                                                                                                                                                                       

                                                                                                                              6     Had the legislature wanted  

offense statutes] or a similar law of another jurisdiction."                                                                                                                   

                                                                                                  



to  ensure  that  the  conduct  underlying  the  out-of-state  conviction  should  also  be  

                                                                                                                                                                                        



considered, it could have said so.  

                                                                            



                             For example,ifthelegislaturewanted tocraft anevenmorebroad-sweeping  

                                                                                                                                                            



sex offender registry statute, it could take the approach suggested by the New Mexico  



Supreme Court in Hall .  The court in Hall adopted an approach like that advocated by  

                                                                                                                        



               3             Matthews, Senior Justice, Conc. at 23-26, 23 n.11.                                                  



               4  

                                                                                                                                                                                     

                             Matthews, Senior Justice, Conc. at 27-28 (quoting State v. Lloyd, 970 N.E.  

                                          

2d 870, 877 (Ohio 2012)).  



               5  

                                                                              

                             294 P.3d 1235 (N.M. 2012).  



               7  

                                                                                                   

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



                                                                                           -17-                                                                                     7270
  


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

Senior Justice Matthews, permitting New Mexico trial courts to consider the charging                                                               



documents, the plea agreement, and the transcript of the plea hearing to determine the                                                                        



                                                                                                                                                                  7  

actual conduct that supported a defendant's sex offense conviction from another state.                                                                               



                                                                                                                         

But even under this approach, the New Mexico Supreme Court warned:  



                                                                                                                                 

                         We realize that in some cases, such as a guilty plea in which there  

                                                                                                                                              

                         was  no  allocution,  there  will  be  no  factual  findings  for  a  New  

                                                                                                                                                    

                         Mexico court to review. In that instance, the court will be limited to  

                                                                                                                                                  

                         comparing the elements of the foreign sex offense to those of the  

                                                                                                                                     

                         enumerated   offenses   under   [the   New   Mexico   sex   offender  

                                                                                                                                                 

                         registration act]. In some cases, this will mean that out-of-state sex  

                                                                                                                                          

                         offenders will not have to register in New Mexico, even for serious  

                                                                                                                                                

                         offenses. If the Legislature is disturbed by this possibility, it is free  

                                                                                                                                

                         to amend SORNA once again.  Several states have passed laws  

                                                                                                                                                

                         requiring out-of-state sex offenders to register for any offense that  

                                                                                                                                               

                         was registrable in the state of conviction. See, e.g., Ind. Code Ann.  

                                                                                                                                     

                          11-8-8-5(b)(1) (West 2012) (The term "sex or violent offender"  

                                                                                                                                          

                         includes "a person who is required to register as a sex or violent  

                                                                                                                         

                         offender in any jurisdiction."); Mont. Code Ann.  46-23-502(9)(b)  

                                                                                                                                                   

                         (2007)  (A  "sexual  offense"  includes  "any  violation  of a  law  of  

                                                                                                                                                     

                         another state, a tribal government, or the federal government that is  

                                                                                                                                                   

                         reasonably equivalent to a violation listed in subsection (9)(a) or for  

                                                                                                                                               

                         which the offender was required to register as a sexual offender after  

                                                                                                                            [8]  

                                                                                                            

                         an adjudication or conviction."  (Emphasis added)). 



                         Alaska'sstatutecontainsnocomparablelanguagerequiringout-of-statesex  

                                                                                                                                                              



offenders to register in Alaska for any offense for which they were required to register  

                                                                                                                                                      



as a sex offender in the state of conviction, nor does Alaska's statute permit the court to  

                                                                                                                                                                 



consider the factual conduct giving rise to the out-of-state sex offense conviction.  

                                                                                                                                      



             7           294  P.3d  at   1240.  



             8           Id .  at   1240-41  (bold  emphasis  added).  



                                                                              -18-                                                                        7270  


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

                                                                                           Senior Justice Matthews's approach is, in my opinion, a rational approach                                                                                                                                                                                                                                                                                                                                                                      



and one that the Alaska Legislature may well wish to consider going forward.                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Or the   



legislature may wish to consider a more inclusive approach like that taken in Montana                                                                                                                                                                                                                                                                                                                                                                                                                                                     



or Indiana.                                                               But whatever approach is taken is a policy decision, and policy decisions of                                                                                                                                                                                                                                                                                                                                                                                                                                



this kind are decisions the legislature, not this court, should make. The strict categorical                                                                                                                                                                                                                                                                                                                                                                                                                               



approach applied by this court in this case is faithful to the language of the current                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  



 statute, and I therefore agree with the court's opinion.                                                                                                                                                                                                                                                          



                                                                                                                                                                                                                                                                                                              -19-                                                                                                                                                                                                                                                    7270
  


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

FABE, Justice, concurring                                                                                                          .  

                                                                  I agree with the result of the court's opinion.1  

                                                                                                                                                                                                                                                                                               But I also agree with Part IV                                                                                                  



of Senior Justice Matthews's concurring opinion and would not resolve the question                                                                                                                                                                                                                                                                                                             



whether we should apply the categorical approach or an approach that permits reference                                                                                                                                                                                                                                                                                                       



to court documents in deciding this case.  As Senior Justice Matthews points out, "the  



 statutes being compared are not similar under either approach that might be used." And                                                                                                                                                                                                                                                                                                                              



as he suggests, our cases "have frequently counseled against deciding questions in the   



abstract." Thus, I join his view that we should "defer[] the decision as to which approach                                                                                                                                                                                                                                                                                                    



is preferable to a case in which the choice actually makes a difference."                                                                                                                                                                                                                                                                                           



                                 1                                I am                     participating in only                                                                                     one of the cases in this consolidated opinion,                                                                                                                                              



State, Dep't of Publ Safety v. Doe,                                                                                                                                       S-15821 (Case No. 3AN-14-08325 CI).                                                                                                                                             



                                                                                                                                                                                                            -20-                                                                                                                                                                                                    7270  


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

MATTHEWS, Senior Justice, concurring.                       



I.           INTRODUCTION  



                          Today the court holds that only statutory language can be consulted when  

                                                                                                                                                             



determining whether a foreign conviction was committed under a statute similar to an  

                                                                                                                                                                  



Alaska statute listed in ASORA.  In my opinion, a foreign statute should be regarded as  

                                                                                                                                                                   



similar to a narrower Alaska statute for ASORA purposes when it covers the same  

                                                                                                                                                             



conduct as the Alaska statute, as well as other conduct, if in a particular case it is clear  

                                                                                                                                                              



that the foreign conviction was based on conduct that would satisfy the elements of the  

                                                                                                                                                                 



Alaska statute.   Since sometimes court records can show this, I would not preclude  

                                                                                                                                                      



referring to them in limited circumstances.  The legislature intended ASORA to apply  



broadly in order to best achieve its public safety purposes.  The approach I favor should  

                                                                                                                                                          



be adopted rather than the strict approach taken by the court because it is more consistent  

                                                                                                                                                    



with this intent.  It is also in accord with the overwhelming majority of cases decided  

                                                                                                                                                        



under SORA statutes in other jurisdictions.  

                                                           



II.          HOW I WOULD DECIDE THIS CASE  

                                                                                   

                          I agree with the result of the court's opinion.1                                          But I do not think that it is  

                                                                                                                                                                    



enough to say that the California "annoying or molesting" statute is not similar to the  

                                                                                                                                                                 



Alaska sexual abuse of a minor statute merely because the California statute covers, for  

                                                                                                                                                                  

example, indecent exposure as well as sexual contact crimes.2  

                                                                                                        



                          The approach I favor would first compare the statutory language.  If the  

                                                                                                                                                                 



California statute is similar to the Alaska statute, but broader because it covers additional  

                                                                                                                                                    



conduct,  further  inquiry  would  be  called  for.                                            Specifically,  the  question  would  be  

                                                                                                                                                                  



             1            I am participating only in one of the cases in this consolidated proceeding,                                           



Doe v. State, Dep't of Pub. Safety                               , S-16403 (Case No. 3AN-15-04577 CI) ("Doe II").                                                    



             2            Op. at 14-15.  

                                       



                                                                                -21-                                                                         7270
  


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

whether, based on the court records in the California proceeding, Doe II's conviction in                                                                                                                                        



California was necessarily based on conduct similar to that required for a conviction                                                                                                                 



under the Alaska statute identified as similar by the Department, attempted sexual abuse                                                                                                                              



of a minor in the second degree under AS 11.41.436(a)(2).                                                        



                                   The first step, statutory comparison for similarity, might be met in the                                                                                                                 



present case. The "annoying or molesting" and the sexual abuse of a minor statutes have                                                                                                                                  



                                                                                                                                                                                                                                  3  

similar purposes - protecting minors from inappropriate sexual behavior by others.                                                                                                                                                     



The conduct forbidden under the California law - conduct "so lewd or obscene that the  

                                                                                                                                                                                                                             

normal person would unhesitatingly be irritated by it"4 -  is broader than the conduct  

                                                                                                                                                                                                                



forbidden under AS11.41.436(a)(2),butitwouldencompass such conduct -knowingly  

                                                                                                                                                                                                         



sexually touching a child under 13 or causing such a child to sexually touch herself or  

                                                                                                                                                                                                                               



                                         5                                                                                                                                                                                         6  

                                             Further, both statutes require violators to register as sexual offenders.   

another person.                                                                                                                                                                                         

                      



                                   Of course, there are differences between the two statutes apart from the  

                                                                                                                                                                                                                            



broader scope of the conduct prohibited under the California statute.  The difference in  

                                                                                                                                                                                                                                



                                                                                                                                                               7                                              8  

                                                                                                                                                                                                                 - may  

                                                                                                                                                                  and 12 in Alaska                                        

the maximum age of the potential victims - 17 in California                                                                                                                                 

                                                                                                                                    



                  3                While   the   Department   determined   Doe   II's   conviction   was   similar   to  



attempted                      sexual               abuse,               I      consider                   only    the                  substantive                        elements                    set         out          in  

AS   11.41.436(a)(2)  and  not  those  in  the  attempt  statute  in  making  the  comparison.  



                  4                People  v.  Carskaddon,  318  P.2d  4,  5  (Cal.   1957)  (en  banc).  



                  5                AS   11.41.436(a)(2),  AS   11.81.900(a)(59).   



                  6                AS   12.63.010,  .100(5)-(6); Cal. Penal Code  290(c) (West  2014  &  Supp.  



2018).  



                  7                Cal.  Penal  Code     647.6(a)(1).  



                  8                AS  11.41.436(a)(2).  

                                              



                                                                                                             -22-                                                                                                       7270
  


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

                                                                                                                   9  

 be significant.          The fact that the California offense is a misdemeanor                                      and the Alaska     



                               10  

offense is a felony                                                                                                                

                                   could also be significant.  An accused might much more readily  



                                                                                                                                     

plead guilty or no contest to charges under the California statute than to charges under  



                                                                                                                             

the Alaska statute. But I will assume for the purpose of discussion that these differences  



                                                                                                                                   

would not render the laws dissimilar for registration purposes, and go to the second  



                                                                                    

inquiry as to the nature of the underlying offense.  

                                                                                                                                11  in the  

                                                                                                                                         

                      If it were clear from the facts established by the court records 



California proceeding (1) what the nature of Doe II's conduct was that formed the basis  

                                                                                                                                       



for his conviction and (2) that such conduct was necessarily similar to conduct that  

                                                                                                                                        



would  constitute  attempted  sexual  abuse  of  a  minor  in  the  second  degree  under  

                                                                                                                                    



subsection .436(a)(2) in Alaska, the statutory standard for registration would be met, in  

                                                                                                                                            



my opinion.  It would then be fair to say that Doe II was convicted of a "sex offense" as  

                                                                                                                                            



that term is used in ASORA, because Doe II's crime would be similar to attempted  

                                                                                                                              



sexual abuse of a minor and would have been committed under a statute that, except for  

                                                                                                                                          



the greater breadth of its coverage, is similar in its purpose and its applicable elements  

                                                                                                              



to Alaska's statute.  

                     



                      But the conduct on which Doe II's conviction was based is not established  

                                                                                                                             



by the California court records.  For this reason I agree that there is no permissible basis  

                                                                                                                                       



in this case for concluding that Doe II's conviction in California was for a sex offense  

                          



as that term is defined under ASORA and thus he is not a "sex offender" with a duty to  

                                                                                                                                            



register.  



           9          Cal.  Penal  Code      17(a),   1170(h),  647.6(a).  



           10         AS   11.41.436(b).  



           11         By  this  I  mean  the  complaint  or  indictment,  jury  instructions,  court  findings  



in  a  judge-tried  case,  and  plea  and  sentencing  transcripts.  



                                                                    -23-                                                              7270
  


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

                                 All states now have SORAs.                                              Almost all state courts that have ruled on the                                                         



                                                                                                                                                        12  

issue have adopted some variant of the approach that I favor.                                                                                                                                              

                                                                                                                                                               I will quote from three  



                                                                                                                                                                     

 other jurisdictions to give the reader a better sense of this body of law:  



                                                                                        

                 !               Washington Court of Appeals:  



                                                                                                                                                          

                                                  To  determine  whether  an  out-of-state  conviction  

                                                                                                                                                                     

                                  qualifies as a "sex offense," a trial court compares the out-of- 

                                                                                                                                                                         

                                  state statute with comparable laws of this state. This is a two- 

                                                                                                                                                                             

                                  step  process,  addressing  both  the  legal  definitions  of  the  

                                                                                                                                                                              

                                  crimes and the facts underlying the convictions.   First, the  

                                                                                                                                                        

                                 trial  court  must  examine  the  elements  of  the  out-of-state  

                                                                                                                                                         

                                  crime and compare them to the elements of the comparable  

                                                                                                                                   

                                 Washington crime.  If the crimes have similar elements, the  

                                                                                                                                                                

                                  analysis is complete. But, "[i]f the elements are not identical,  

                                                                                                                                                      

                                  or  the  foreign  statute  is  broader  than  the  Washington  

                                                                                                                                                                               

                                  definition of the particular crime," then, as a second step, the  

                                                                                                                                                                        

                                 trial court may examine the facts of the out-of-state crime  

                                                                                                                                                                  [13]  

                                                                                                                                                                

                                  " 'as evidenced by the indictment or information.' " 



                 12              See    Tracy    Bateman    Farrell,    Annotation,    Validity,    Construction,    and  



Application of State Statutory Requirement that Person Convicted of Sexual Offense in                                                                                                                             

 Other   Jurisdiction   Register   or   Be   Classified   as   Sexual   Offender   in   Forum   State,   34  

A.L.R.6th   171      25-26   (2008)   (Westlaw)   (database   updated   March   2017).     The  

Annotation   cites   only   three   jurisdictions   (Arizona,   Massachusetts,   and   Ohio)   as  

 supporting the view that a court may not look beyond the statutory language.                                                                                                                   See id.               

26.   But in light of                        State v. Lloyd                    , 970 N.E.2d 870 (Ohio 2012), Ohio should no longer be                                                                             

included, and the Arizona case cited by the Annotation,                                                                                   State v. Kuntz                     , 100 P.3d 26, 30                   

n.3   (Ariz.   App.   2004),   indicates   that   the   criminal   complaint   upon   which   a   foreign  

conviction   is   based   can   be   considered   if   incorporated   in   the   judgment.     Further,   the  

Arizona legislature, after the decision in                                                        Kuntz , largely mooted the effect of that decision                                               

by amending the Arizona SORA to require registration of any offender who has been                                                                                                                          

required to register in another jurisdiction.                                                              See State v. Lowery                                , 287 P.3d 830, 835-36                 

 (Ariz. App. 2012).                            Case law in Massachusetts does support the opinion of the court.                                                                                               See  

Doe v. Sex Offender Registry Bd.                                                  , 925 N.E.2d 533 (Mass. 2010).                                



                 13  

                                                                                                                                                                                                  

                                 State v. Howe, 212 P.3d 565, 567 (Wash. App. 2009) (alteration in original)  

                                                                                                                                                                                      (continued...)  



                                                                                                       -24-                                                                                                7270
  


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

                    !                  New Mexico Supreme Court:                                           



                                       When   the   elements   of   the   out-of-state   sex   offense   are  

                                       precisely the same elements of a New Mexico sex offense,                                                                                                

                                       the inquiry is at an end.                                               However, even when the elements                                               

                                       are    dissimilar,    courts   should    consider    the    defendant's  

                                       underlying   conduct   to   determine   whether   the   defendant's  

                                       conduct would have required registration in New Mexico as                                                                                                                 

                                       a sex offender.     



                                                                                                                         . . . .  



                                                           The remaining question is how should a New Mexico                                                                                     

                                       court    determine    the    actual    conduct    that    supported    the  

                                       defendant'sconviction ofasex offenseinanother jurisdiction                                                                                     

                                       when   deciding   equivalency   under   SORNA.   .   .   .   When   a  

                                       defendant   enters  a   plea   of   guilty   or   nolo   contendere,   the  

                                       charging document, plea agreement, or transcript of the plea                                                                                                        

                                       hearing should establish the factual basis for the plea. A New                                                                                                     

                                       Mexico   court   should   consider   the   facts   stated   in  such  

                                       documentswhendetermining whether theconductunderlying                                                                                            

                                       the plea would have constituted a violation of one of the                                                                                                             

                                       twelve    enumerated    SORNA    offenses    that    require    sex  

                                       offender registration.                                          In essence, the question is whether the                                                                

                                       out-of-state fact-finder necessarily must have found facts that                                                                                                       

                                       would   have   proven   the   elements   of   the   New   Mexico  

                                       registrable   offense.     If   so,   the   alleged  sex   offender   has  

                                       committed the equivalent of an enumerated New Mexico sex                                                                                                               

                                       offense.  



                                                                                                                                 

                                                                                                                         . . . .  



                    13(...continued)  



(citations omitted) (quoting State v. Morley, 952 P.2d 167, 175-76 (Wash. 1998)).  It is  

                                                                                                                                                                                                                                                          

worthy of note that Doe II agrees with the approach outlined in Howe .  This serves to  

                                                                                                                                                                                                                                                        

illustrate the point made later in this concurring opinion that deciding between the court's  

                                                                                                                                                                                                                                           

"categorical approach" and the approach I prefer is not necessary to the outcome of this  

                                                                                                                                                                                                                                                    

case.  See infra p. 29.  

                                                      



                                                                                                                         -25-                                                                                                                   7270
  


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

                                       We realize that in some cases, such as a guilty plea in                                             

                          which  there   was   no   allocution,   there   will   be   no   factual  

                          findings for a New Mexico court to review.                                           In that instance,     

                          the   court   will  be   limited   to   comparing   the   elements   of   a  

                          foreign sex offense to those of the enumerated offenses under                                             

                          SORNA.   In some cases, this will mean that out-of-state sex                                                  

                          offenders will not have to register in New Mexico, even for   

                          serious offenses.               [14]  



             !            Ohio Supreme Court:  

                                                        



                          We conclude that in order to determine whether an out-of- 

                                                                                                                                 

                          state conviction is substantially equivalent to a listed Ohio  

                                                                                                                                    

                          offense,  a  court  must  initially  look  only  to  the  fact  of  

                                                                                                                                         

                          conviction and the elements of the relevant criminal statutes,  

                                                                                                                               

                          without  considering  the  particular  facts  disclosed  by  the  

                                                                                                                                        

                          record of conviction.  If the out-of-state statute defines the  

                                                                                                                                        

                          offense in such a way that the court cannot discern from a  

                                                                                                                                            

                          comparison   of   the   statutes   whether   the   offenses   are  

                                                                                                                                      

                          substantially equivalent, a court may go beyond the statutes  

                                                                                                         

                          and rely on a limited portion of the record in a narrow class  

                                                                                                              

                          of cases where the factfinder was required to find all the  

                                                                                                                                        

                          elements  essential  to  a  conviction  under  the  listed  Ohio  

                                                                                                                                    

                          statute.  To do so, courts are permitted to consult a limited  

                                                                                                                                

                          range of material contained in the record, including charging  

                                                                                                                              

                          documents, plea agreements, transcripts of plea colloquies,  

                                                                                                                         

                          presentence reports, findings of fact and conclusions of law  

                                                                                                  

                          from a bench trial, jury instructions and verdict forms, or  

                                                                                                                            

                          some comparable part of the record.[15]  

                                                                                   



                          Here are the reasons I think that the approach I favor should be preferred  

                                                                                                                                                       



to the court's categorical approach. First, the criminal statutes of the several states come  

                                                                                                                                                              



in many forms, and it is to be expected that many individual statutes will cover both  

                                                                                                                                                               



conduct requiring registration in Alaska and conduct that does not require registration.  

                                                                                                                                                                          



             14           State  v.  Hall,  294  P.3d   1235,   1239-40  (N.M.  2012).  



             15           Lloyd ,  970  N.E.2d  at  877.  



                                                                                -26-                                                                          7270  


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

 Any thoughtful lawmaker would be aware of this fact.                                                                                                             Second, the Alaska Legislature                               



 wanted   offenders   who   had  committed   crimes   elsewhere   that   are   similar   to   crimes  



                                                                                                                                                                                                                                                            16  

 requiring registration in Alaska to register as sex offenders when moving to Alaska.                                                                                                                                                                              



                                                                                                                                                                                                                                     

 Third, as the court notes, the legislature by its use of the unmodified term "similar"  



                                                                                                                                                                                                                                                  

 intended  that  Alaska's  standard  should  be  given  "a  relatively  broad  reading"  and,  



                                                                                                                                                                                                                                           

 relatedly, suggested that it desired Alaska to be more inclusive with respect to out-of- 



                                                                                                                                                                                                                            

 state crimes than states using comparative phrases such as "substantially equivalent,"  

                                                                                                                                                                                   17         But  the  court's  strict  

                                                                                                                                                                                                                                                

 "substantially  similar,"  "equivalents,"  or  "like  violation." 



                     16                 This observation is supported by common sense - What else could the                                                                                                                                            



 legislature have intended? - as well as the legislative history of ASORA.                                                                                                                                              Staff Counsel   

 Doug Wooliver, representing the prime sponsor of the legislation, referred to registration                                                                                                                                    

 of out-of-state offenders in his                                                              explanatory   statements to two legislative committees.                                                                                                             

 Wooliver   listed   the   Alaska   crimes   that   would   be   covered   and   added   that   crimes  

 committed elsewhere would also be covered when the person convicted moved to Alaska:                                                                                                                                                     



                                        Mr.   Wooliver   explained   the   bill   covered   crimes   of   sexual  

                                        assault in the first, second, and third degree; sexual abuse of                                                                                                            

                                        a   minor   in   the   first,   second,   and   third   degree;   promoting  

                                        prostitution   in   the   first   degree;   and   incest   and   unlawful  

                                        exploitation of a minor.                                                 He also explained the bill covered                                              

                                        crimes   not   only   committed   in   Alaska   but   those   in   other  

                                       jurisdictions when those persons moved to Alaska.                                                                               



 Minutes, Sen. Judiciary Comm. Hearing on H.B. 69, 18th Leg., 1st Session, Tape 93-43,                                                                                                                                                        

 side   A,   no.   505   (Apr.   14,   1993).     This   clearly   implies   that   those   convicted   in   other  

jurisdictions of crimes like those listed for Alaska would also have to register.                                                                                                                                                  Wooliver  

 made a similar statement to the Senate Finance Committee.                                                                                                                       See  Minutes, Sen. Finance                              

 Comm. Hearing on H.B. 69, Tape SFC-93, #69, side 2, no. 225 (Apr. 28, 1993).  I have                                                                                                                                   

 seen   no   other   reference   to   registration   for   out-of-state   convictions   in   my   review   of  

 ASORA's history.   



                     17  

                                                                                                                                                                                                                                                          

                                        Op. at 9-10.  New Mexico, which permits consulting court documents in  

                                                                                                                                                                                                                                                   

 individual cases, see Hall, 294 P.3d at 139-40, is among the jurisdictions the court cites  

                                                                                                                                                                                                                         (continued...)  



                                                                                                                           -27-                                                                                                                   7270
  


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

approach needlessly limits the number offoreignconvictions that                                                                  qualify as asex offense        



and thus poorly serves the legislature's intent. As the Ohio Supreme Court has observed,                                                                   



such an approach "thwart[s] the legislature's intent because it would prevent [our] law                                                                                



from reaching                  some   of   the   offenses   identified   by   the   [legislature]   only   because   of  

idiosyncracies in the criminal codes of foreign jurisdictions."                                                            18  



                           Although I have explained above how I think this case should be decided,  

                                                                                                                                                             



and why, a number of additional comments seem appropriate.  

                                                                                                     



III.          COMMENTS ON THE DEPARTMENT'S APPROACH  

                                                                                                            



                           The approach taken by the Department of Public Safety in this case cannot  

                                                                                                                                                                 



be  justified.               In  deciding  whether  Doe  II  was  required  to  register,  the  Department  

                                                                                                                                                                                



gathered investigative reports from California law enforcement authorities concerning  

                                                                                                                                                        



Doe II's conduct.  The Department decided that in light of the conduct shown in the  

                                                                                                                                                                        



reports and the elements of the California annoying or molesting statute, "the California  

                                                                                                                                                          



offense as to which [Doe II was] convicted is similar to the Alaska offense of attempted  

                                                                                                                                                           



sexual abuse of a minor in violation of AS 11.41.436(a)(2)."   But the investigative  

                                                                                                                                                    



reports on which the Department relied detailed a wide range of alleged misbehavior,  

                                                                                                                                                    



only some of which might meet the elements of attempted sexual abuse of a minor as set  

                                                                                                                                                                         



out in this statutory subsection.   The reports did not necessarily show what conduct  

                                                                                                                                                             



Doe II was convicted of.  The complaint to which he pled no contest was conclusory  

                                                                                                                                                        



only, and did not detail any conduct. Moreover, in order to rely on the reports consistent  

                                                                                                                                                          



with due process, the Department should have given Doe II notice and an opportunity  



to rebut them. This was not done, nor are there regulations that call for such a procedure.  

                                                                                                                                                                                



              17(...continued)  



                                                    

in this discussion.  Op. at 9-10.  



              18           Lloyd , 970 N.E.2d at 877.  

                                                                      



                                                                                   -28-                                                                             7270
  


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

Further, any suggestion that the Department must conduct a trial-like proceeding in order                                                                                                                                                                                       



to determine what a defendant was convicted of seems implausible in light of the expense                                                                                                                                                                               



and inefficiency involved, yet that is what due process would require.                                                                                                                                                                   And again, even                         



if such an approach were taken, it would show, at best, only what a potential registrant                                                                                                                                                                          



did, not, as required by ASORA, what he was convicted of.                                                                                                                                                  



IV.	                  ITISNOTNECESSARYTOCHOOSEBETWEEN                                                                                                                                                          THECATEGORICAL   

                      APPROACH AND THE APPROACH THAT PERMITS REFERENCE TO                                                                                                                                                                                                             

                       COURT DOCUMENTS.   



                                             It is not necessary to decide in this case whether the court's approach of                                                                                                                                                                   



reviewing only the statutory language or the two-step approach I have described should                                                                                                                                                                                     



be adopted.                              All that needs to be said is that the statutes being compared are not similar                                                                                                                                                    



under either approach that might be used.                                                                                                            This has the advantage of deferring the                                                                                          



decision as to which approach is preferable to a case in which the choice actually makes                                                                                                                                                                                    



                                         19  

a difference.                                                                                                                                                                                                                                                                      

                                                 Experience teaches that this would be desirable because the pros and cons  



                                                                                                                                                                                                                                                                  

of a rule announced based on hypothetical facts may well look different in a concrete  

setting.20  



                                                                                                                                                                                                   

V.	                    COMMENTS CONCERNING THE COURT'S OPINION  



                                                                                                                                                                                                                                                                                    

                                             The opinion's rationale seems to be encapsulated in the following two  



                                                                                                                                                                                                                                                                                 

sentences:  "Because 'similar' modifies 'law of another jurisdiction,' based on the plain  



                                                                                                                                                                                                                                                                                             

language of the statute it is the  law that must be similar.   We therefore 'employ a  



                       19	                   I would join in an opinion so holding.                                                            



                      20  

                                                                                                                                                                                                                                                                                      

                                             Our  cases  have  frequently  counseled  against  deciding  questions  in  the  

                                                                                                                                                                                                                                                                                   

abstract.  See, for example, State v. American Civil Liberties Union of Alaska, 204 P.3d  

                                                                                                                                                                                                                                                       

364,  371-73  (Alaska  2009),  and  cases  there  cited.                                                                                                                            "Courts  worry  that  unnecessary  

                                                                                                                                                                                                                                                                     

lawmaking should be avoided, both as a matter of defining the proper role of the judiciary  

                                                                                                                                                                                                                                                                                        

in society and as a matter of reducing the risk that premature litigation will lead to ill- 

                                                                                                                                                                                                                                                                            

advised adjudication." Id. at 372 (quoting Brause v. State, Dep't of Health & Soc. Servs. ,  

                                                                                                                  

21 P.3d 357, 359 (Alaska 2001)).  



                                                                                                                                          -29-	                                                                                                                                  7270
  


----------------------- Page 30-----------------------

categorical approach by looking to the statute . . . of conviction, rather than to the                                                                             



specific facts underlying the crime' to determine whether that statute is similar to one of                                                                          



                                                                                                                         21  

the pertinent Alaska sex offenses under AS 12.63.100(6)(C)."                                                                  



                                                                                                                                                       

                          This rationale may be read as simply concluding that because "similar"  



                                                                                                                                                                

modifies "law of another jurisdiction" we are necessarily limited to consulting only  



                                                                                                                                                                 

statutory terms because of the constraints of the English language. Or the rationale may  



                                                                                                                                                           

be that there is something compelling about the line of cases from which the quoted  



                                                                                                                                                     

language is taken that requires us to limit our inquiry to the statutory terms.  



                                                                                                                                                                     

                          Taking the first possibility, the phrase "similar law" is broad enough to  



                                                                                                                                                                      

encompass  two  statutes  having  similar  purposes  that  cover  the  same  conduct  in  a  



                                                                                                                                                                           

particular case, even if one may cover conduct that the other does not in other situations.  



                                                                                                                                                  

Of course, a narrower meaning is also possible.  But one would expect an explanation  



                                                                                                                                                                      

for choosing the narrower meaning, especially when the legislature has indicated a  



                                                                                                                                                             

preference for inclusivity and our case law has rejected application of a strict plain- 



                                   22  

                   

meaning analysis. 



                          The second possible meaning - that the line of cases represented by the  

                                                                                                                                                                   



quote from Esquivel-Quintana v. Sessions is compelling in the context of ASORA -  

                                                                                                                                                                    



requires an examination of the case law.  

                                                                                



             21           Op. at 7 (alteration in original) (emphasis in original)                                                  (quoting  Esquivel- 



Quintana v. Sessions, 137 S. Ct. 1562, 1568 (2017)).  

                                                                                       



             22  

                                                                                                                                                             

                          See, e.g., Blas v. State, Dep't of Labor & Workforce Dev., Div. of Emp't  

                                                                                                                                                

Sec., 331 P.3d 363, 373-74 (Alaska 2014) (using "sliding scale" in statutory interpretation  

                                                                                                                                          

and   considering                    legislative   history                   to     construe            "knowingly"                 in     unemployment  

                                                                                                                                                                   

compensation disqualification statute).   In contrast, the U.S. Supreme Court does not  

                                                                                                                                                                      

consult legislative history to interpret statutes if it determines the statutory language is  

                                                                                                               

plain.  See, e.g., Lamie v. U.S. Tr. , 540 U.S. 526, 532-34 (2004).  



                                                                                -30-                                                                           7270
  


----------------------- Page 31-----------------------

                           Esquivel-Quintana   involved   a   removal   proceeding   against   a   lawful  



permanent resident based on the government's contention that he had been convicted of                                                                                       



"an aggravated felony," a term that explicitly included "sexual abuse of a minor," under                                                                             

                                                                                         23   The petitioner had pleaded no contest to  

the Immigration and Nationality Act (INA).                                                                                                                                  



a California statutory rape offense criminalizing "unlawful sexual intercourse with a  

                                                                                                                                                                             

minor who [was] more than three years younger than the perpetrator."24  The question  

                                                           



was whether this offense fell within the meaning of "sexual abuse of a minor" under the  

                                                                                                                                                                          

INA.25  As there is no explicit statutory definition of "sexual abuse of a minor" under the  

                                                                                                                                                                          



INA, the court used a "generic" definition - based on the rule in most states - that  

                                                                                                                                                                        

required the victimto be younger than 16.26  Under the California statute the victimcould  

                                                                                                                                                                     

have been as old as 17.27   Applying the "categorical approach," which forbids the court  

                                                                                                                                                                      



from looking at the actual age of the victim and requires the court to evaluate whether  

                                                                                                                     



"the least of the acts criminalized by the state statute falls" within a corresponding  

                                                                                                                                                  



"generic federal definition" of the crime, the court concluded that a conviction under the  

                                                                                                                                                                          

California statute was not necessarily sexual abuse of a minor under the INA.28  

                                                                                                                                                    



              23            137 S. Ct. at 1567.
         



              24  

                                                                                                                          

                           Id.  (quoting Cal. Penal Code  261.5(c) (West 2014)).
  



              25           Id.
  



              26  

                                                    

                           Id.  at 1569, 1571-72.  



              27  

                                       

                           Id.  at 1568.  



              28  

                                       

                           Id.  at 1568-72.  



                                                                                    -31-                                                                              7270
  


----------------------- Page 32-----------------------

                       The court noted that the categorical approach it employed was set forth in                                                    



                                             29  

Taylor   v.   United   States,                                                                                                       

                                                 an  early  example  of  a  case  interpreting  the  sentencing  



                                                                                                                                         

enhancement provisions of what is now called the Armed Career Criminal Act (ACCA),  



                                                                                                                                    

which increases the sentences of federal defendants who have three prior convictions  

                                                                                                                  30  Courts interpreting  

                                                                                                                                    

"for a 'violent felony' " including "burglary, arson, or extortion." 



ACCA also use "generic" definitions to determine whether a state conviction qualifies  

                                                                                                                                          

as one of these crimes.31                      Consulting state court records to determine the nature of a  

                                                                                                                                                      



given conviction is generally prohibited, except in cases where a statute is said to be  

                                                                                                                                                    

"divisible," that is one that lists elements of the offense in the alternative.32  

                                                                                                              



                       Neither the INA nor ACCA resembles ASORA in form, purpose, or effect.  

                                                                                                                                                          



Further,  the  Esquivel-Quintana  and  Taylor  line  of  cases  does  not  purport  to  be  

                                                                                                                                                   



expressing  a  constitutional  principle  that  would  be  binding  on  state  courts  when  

                                                                                                                                              



interpreting SORAs.  They are simply interpreting particular federal statutes.  I do not  



think they provide an analogy that is useful to this case.  The opinion of the court does  

                                                                                                                                                



not explain why the court believes they do.  

                                                                       



                       The court may also be implying that, because the court of appeals compares  

                                                                                                                                        



statutoryelements and not theunderlying facts ofan offense when applying the sentence- 

                                                                                                                                        



enhancing provisions of Alaska's presumptive sentencing law, this court should observe  

                                                                                                                                           



            29         Id.  at 1568 (citing             Taylor v. United States                 , 495 U.S. 575 (1990)).         



            30  

                                                                                                                                                    

                       See Mathis v. United States, 136 S. Ct. 2243, 2247-48 (2016) (quoting 18  

                             

U.S.C.   924(e) (2012)).  



            31          Taylor, 495 U.S. at 598.  

                                                           



            32         See  Descamps  v.  United  States,  570  U.S.  254,  257  (2013)  (describing  

                                                                                                                                    

modified categorical approach and its application).  

                                                                                            



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----------------------- Page 33-----------------------

                                                                   33  

a similar limitation under ASORA.                                       But the presumptive sentencing law, like the INA                                       



and ACCA, is different from ASORA in form, purpose, and effect.                                                                    Thus the approach     



taken by the court of appeals does not mean that the same approach is appropriate under                                                                     

                  34   Again, the opinion of the court has offered no explanation as to why it may  

ASORA.                                                                                                                                                         



             33           Op. at 8.          



             34  

                                                                                                                                                              

                          The Court of Appeals of New York addressed the question whether a strict  

                                                                                                                                                            

approach  taken  under  a  law  that  served  to  increase  sentences  should  be  used  when  

                                                                                                                                                              

interpreting New York's SORA.  See North v. Bd. of Exam'rs of Sex Offenders of N.Y.,  

                                                                                                                                                       

871 N.E.2d 1133 (N.Y. 2007). The court concluded that there was no persuasive analogy:  



                                                                                                                                       

                                      We are unpersuaded that the Legislature intended that  

                                                                                                                                     

                          the SORA "essential elements" inquiry involve the same strict  

                                                                                                                         

                          equivalency                approach             used        in      the      criminal            enhanced  

                                                                 

                          sentencing context.  



                                                                                      

                                                                               . . . .  



                                                                                                                                   

                                       .  .  .  Certainly  words  or  phrases  used  in  the  same  

                                                                                                                                       

                          legislation  or  statutory  scheme  are  commonly  ascribed  the  

                                                                                                                                 

                          same  meaning.                     Here,  however,  the  language  on  which  

                                                                                                                                         

                          petitioner  relies  appears  in  distinct  legislation  enacted  in  

                                                                                                                     

                          separate statutory schemes that fulfill different functions.  



                                                                                                                        

                                      As  part  of  the  penal  system,  enhanced  sentencing  

                                                                                                                                           

                          statutes serve to extend the term of incarceration attending a  

                                                                                                                                 

                          criminal conviction.  In contrast, SORA is not a penal statute  

                                                                                                                                               

                          and the registration requirement is not a criminal sentence.  

                                                                                                                                          

                          Rather than imposing punishment for a past crime, SORA is  

                                                                                                                                           

                          a remedial statute intended to prevent future crime; its aim is  

                                                                                                                             

                          to  "protect[] communities by notifying them of the presence  

                                                                                                                                       

                          of individuals who may present a danger and enhancing law  

                                                                                                                                  

                          enforcement authorities' ability to fight sex crimes."  While  

                                                                                                                 

                          application of a strict equivalency standard is understandable  

                                                                                                                                           

                          in  the  enhanced  sentencing  context  where  the  length  of  a  

                                                                                                                                         

                          defendant's incarceration is to be determined, it may not be  

                                                                                                                                               

                          the optimal vehicle to effectuate SORA's remedial purposes.  

                                                                                                                                             (continued...)  



                                                                                -33-                                                                         7270
  


----------------------- Page 34-----------------------

be concluding that cases interpreting sentence-enhancing provisions should guide our                                                                                                                                                     



interpretation of ASORA.                        



                   34(...continued)  



                                      The legislative history of SORA does not disclose any intent  

                                                                                                                                                                                              

                                     by lawmakers to import the test from the Penal Law.  

                                                                                                                                                                          



Id . at 1137-38 (alteration in original) (citations omitted).  

                                                                                                                                                                



                                                                                                                           -34-                                                                                                      7270
  

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