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Alaska Supreme Court: ‘Set Aside’ Conviction From 1997 Is Not ‘Conviction’ Triggering Lifetime ASORA Registration

The Supreme Court of the State of Alaska determined that a 1995 Department of Public Safety regulation, defining prior sex offenses to include convictions that were set aside, was improperly issued as it was beyond the agency’s authority to enact.

Kelley Maves was convicted of two sexual assaults in Colorado in 1997. He spent 60 days in jail on third-degree sexual assault and was placed on probation for second-degree sexual assault. After completing five years of probation, the Colorado court allowed him to withdraw his plea, and the charge was dismissed with prejudice.

Maves moved to Alaska in 2015 and was notified by the Department of Public Safety that he was required to register for life because of his two prior convictions, regardless of the fact that one had been “set aside.” Maves challenged this determination arguing on appeal that the department issued its 1995 regulation, 13 AAC 09.900(a)(2), including “set aside” offenses, without the authority to do so. With only one conviction, Maves would be required to register for only fifteen years.

The Alaska Supreme Court noted that this decision was a review of the application of law, not a decision which must factor in the “level of agency expertise involved.” As such, the Court exercises its own “independent judgement, substituting [its] own judgement for that of the agency even if the agency’s interpretation has a reasonable basis in law.” Alaska Ass’n of Naturopathic Physicians v. State, Dep’t. of Commerce, 414 P.3d 630 (Alas. 2018).

When it passed the Alaska Sex Offenders Registration Act (“ASORA”) in 1994, the Legislature authorized the department to promulgate regulations “necessary to carry out the purposes of [ASORA].” Ch. 41, § 5, SLA 1994. ASORA requires persons with a conviction for a sex offense to register but left the term “conviction” undefined.

In 1995, the department promulgated 13 AAC 09.900(a)(2), which defines “conviction” to include a guilty plea, no contest plea, or other finding of guilt “whether or not the judgement was thereafter set aside under AS 12.55.085 or a similar procedure in another jurisdiction.” Only later, in 1999, did the Legislature change the law to define “conviction” this way.

This timing is important because the Alaska Supreme Court’s decision in Doe v. Dep’t. of Public Safety, 444 P.3d 116 (Alas. 2019), held that ASORA’s “requirements are both punitive and regulatory” and thus may not be applied retroactively.

In this case, Maves asked the Court to apply its test limiting agency regulations adopted in Manning v. State, Dep’t. of Fish & Game, 355 P.3d 530 (Alas. 2015). Under this test, the Court must consider “whether [the agency] exceeded its statutory authority in promulgating the regulation.”

The Alaska Supreme Court faced a similar situation in Doe v. State, Dep’t. of Public Safety, 92 P.3d 398 (Alas. 2004). In that case, the Court considered a person whose conviction had occurred, and had been set aside, prior to the enactment of ASORA in 1994. The Court stated that such treatment was “typically reserved for low-risk, first-time offenders” who are most likely to satisfy “the terms and conditions of [their] probation without incident.” These circumstances are at odds with ASORA’s “assumption that persons convicted of sex offenses pose a significant danger of committing new sex offenses” and that this assumption was “fundamentally inconsistent with the individualized findings of fact a court makes before setting aside a particular offender’s conviction.” Therefore, persons whose convictions had been set aside prior to ASORA’s enactment had “the settled expectation that the State could no longer use ‘the conviction or the underlying misconduct as grounds for compelling the defendant to act as though he remains convicted, has never been rehabilitation, and continues to pose a public danger.’” Doe.

Given this “fundamental” inconsistency between tracking dangerous offenders and requiring registration of convictions which had been set aside, the Court determined that “[a]dding those offenders by [the 1995] regulation was therefore not reasonably necessary to implement ASORA.” Thus, the Court ruled that the department exceeded its statutory authority when it enacted the 1995 regulation.

The Court further stated that the 1999 amendment “confirms that identifying those who are subject to the law’s severe strictures is an important policy choice that must originate with the legislature.”

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Related legal case

Maves v. State, Dep’t. of Public Safety



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