Skaggs v. Nebraska State Patrol

F rederick SkaggS, appellant, v. nebraSka
State patrol , an agency oF the State
oF nebraSka , appellee .
804 N.W.2d 611
Filed September 2, 2011. 	No. S-10-348.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the decision made by the court below.
2. Administrative Law: Judgments: Appeal and Error. A judgment or final order
rendered by a district court in a judicial review pursuant to the Administrative
Procedure Act may be reversed, vacated, or modified by an appellate court for
errors appearing on the record.
3. ____: ____: ____. When reviewing an order of a district court under the
Administrative Procedure Act for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by competent evidence,
and is not arbitrary, capricious, or unreasonable.
4. Judgments: Appeal and Error. Whether a decision conforms to law is by defi-
nition a question of law, in connection with which an appellate court reaches a
conclusion independent of that reached by the lower court.
5. ____: ____. An appellate court, in reviewing a district court judgment for errors
appearing on the record, will not substitute its factual findings for those of the
district court where competent evidence supports those findings.
6. Statutes: Appeal and Error. Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and unambiguous.
Appeal from the District Court for Lancaster County: Steven
d. burnS, Judge. Affirmed.
D.C. Bradford and Justin D. Eichmann, of Bradford &
Coenen, L.L.C., for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
heavican, c.J., connolly, gerrard, Stephan, MccorMack ,
and M iller-lerMan, JJ.
gerrard, J.
This appeal involves a decision by the Nebraska State
Patrol to require the petitioner-appellant, Frederick Skaggs,
to register under the Nebraska Sex Offender Registration Act
(SORA). After the State Patrol’s decision, Skaggs requested a
154 	282 NEBRASkA REPORTS
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www.nebraska.gov/apps-courts-epub/
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determination of the applicability of SORA to him, a hearing
was held, and a hearing officer determined that Skaggs was
required to register. The State Patrol adopted the recommenda-
tion of the hearing officer in full, and Skaggs petitioned for
judicial review of the State Patrol’s decision, but the district
court agreed that Skaggs was required to register as a sex
offender. Though Skaggs argued before the hearing officer and
the district court that SORA was unconstitutional as applied to
him, the district court declined to address the issue, noting that
Skaggs had failed to raise the issue in his petition for judicial
review. Skaggs timely appeals. For the following reasons, we
affirm the judgment of the district court.
BACkGROuND
In 1985, Skaggs was convicted in the State of California of
attempted forcible rape, kidnapping, robbery, and the unlaw-
ful taking of a vehicle. In 1992, Skaggs was paroled from
California to Nebraska. Though Skaggs was required to register
as a sex offender in California before the transfer of his parole
to Nebraska, Skaggs was not required to register in Nebraska
in 1992, because Nebraska had not yet enacted a sex offender
registry. Skaggs’ parole records were not made part of the
record here, because they were destroyed per the Nebraska
Department of Correctional Services’ recordkeeping policy.
Skaggs lived and worked in Nebraska for several years follow-
ing the transfer of his parole.
Skaggs went to Florida some time in 2003, but the parties
dispute the extent to which he lived there. Skaggs was arrested
in Florida three times during 2003 and 2004. Skaggs was placed
on probation in Florida for a misdemeanor in 2004, and at that
time, he had a Florida driver’s license. At some point, the
California Department of Justice contacted Florida authorities
to inform them that Skaggs was a convicted sex offender, and
on January 31, 2006, Skaggs was arrested for failing to register
as a sex offender in the State of Florida. On April 18, Skaggs
registered as a sex offender in Florida and signed a registration
form which listed his permanent and temporary addresses as
two different addresses in Florida. In October, Skaggs updated
his address with the Florida sex offender registry to Nuevo
SkAGGS v. NEBRASkA STATE PATROL 	155
Cite as 282 Neb. 154

Vallarta, Mexico. But Skaggs then lived at an apartment in
Omaha, Nebraska, from December 15, 2006, to July 31, 2007,
and although his address after that time is unclear, it appears
from the record that he was still in Omaha, and he was found
living at another Omaha address in January 2008.
Skaggs was located because the Douglas County sheriff’s
office had been notified in October 2007 that Skaggs was a
Florida-registered sex offender living in Omaha. On January
24, 2008, a Douglas County deputy sheriff arrested Skaggs for
violating SORA by failing to register in Nebraska, and Skaggs
was later notified by the State Patrol of his obligation to regis-
ter as a Level 3 sex offender. Skaggs petitioned the State Patrol
for a hearing and challenged whether SORA applied to him,
challenged his classification as a Level 3 sex offender, and
claimed that SORA was unconstitutional as applied to him.
A State Patrol hearing officer determined that Skaggs was
required to register under Neb. Rev. Stat. § 29-4003(1)(b)
(Reissue 2008). The hearing officer noted that § 29-4003(1)(d)
might also require Skaggs to register, but did not make a final
determination on that issue. The State Patrol adopted the rec-
ommendation of the hearing officer, and Skaggs petitioned for
judicial review of the State Patrol’s decision. On review, the
district court determined that Skaggs’ classification as a Level
3 offender was moot, as SORA had been amended on January
1, 2010, to remove the classification system. However, the
court determined that Skaggs was still required to register as
a sex offender, pursuant to § 29-4003(1)(b) (Reissue 2008).
Though Skaggs argued that SORA was unconstitutional as
applied to him, the court declined to address the issue, not-
ing that Skaggs failed to raise the issue in his petition for
judicial review, as required by Neb. Rev. Stat. § 84-917 (Cum.
Supp. 2010). Skaggs appeals pursuant to the Administrative
Procedure Act.1
ASSIGNMENTS OF ERROR
Skaggs assigns that (1) the State Patrol and the district court
erred in determining SORA was applicable to Skaggs, (2) the
1 See Neb. Rev. Stat. § 84-918 (Reissue 2008).
156 	282 NEBRASkA REPORTS

application of SORA to Skaggs is unconstitutional because it
denies him his 14th Amendment right to travel freely between
the several states, and (3) the district court erred in refusing to
consider Skaggs’ constitutional challenge.
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below.2
[2-5] A judgment or final order rendered by a district court
in a judicial review pursuant to the Administrative Procedure
Act may be reversed, vacated, or modified by an appellate court
for errors appearing on the record.3 When reviewing an order
of a district court under the Administrative Procedure Act for
errors appearing on the record, the inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence,
and is not arbitrary, capricious, or unreasonable.4 Whether a
decision conforms to law is by definition a question of law, in
connection with which an appellate court reaches a conclusion
independent of that reached by the lower court.5 An appellate
court, in reviewing a district court judgment for errors appear-
ing on the record, will not substitute its factual findings for
those of the district court where competent evidence supports
those findings.6
ANALySIS
§ 29-4003
As a preliminary matter, we note that § 29-4003 has been
amended twice since Skaggs received notice that he was
required to register as a sex offender in Nebraska.7 Both
2 State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010), cert. denied 560 u.S.
945, 130 S. Ct. 3364, 176 L. Ed. 2d 1256.
3 McCray v. Nebraska State Patrol, 271 Neb. 1, 710 N.W.2d 300 (2006).
4 Id.
5 Id.
6 Slansky v. Nebraska State Patrol, 268 Neb. 360, 685 N.W.2d 335 (2004).
7 See 2009 Neb. Laws, L.B. 97 and L.B. 285.
SkAGGS v. NEBRASkA STATE PATROL 	157
Cite as 282 Neb. 154

amendments took effect in May 2009.8 (Section 29-4003 has
since been amended again, effective August 27, 2011,9 but that
change is minor and does not affect our reasoning here.) At
Skaggs’ hearing, in September 2009, § 29-4003 (Cum. Supp.
2010) was in effect, but the hearing officer applied § 29-4003
(Reissue 2008). The district court, on judicial review, also
applied § 29-4003 (Reissue 2008). On appeal, Skaggs con-
tends that under § 29-4003 (Cum. Supp. 2010), SORA does
not apply to him. The State concedes that the hearing officer
and district court applied the wrong version of the statute, but
argues that even under the amended statute, SORA still applies
to Skaggs.
The State relies upon § 29-4003(1)(a)(iv) (Cum. Supp.
2010), which makes SORA applicable to anyone who, on or
after January 1, 1997, “[e]nters the state and is required to reg-
ister as a sex offender under the laws of another village, town,
city, state, territory, commonwealth, or other jurisdiction of the
united States.” Skaggs makes two arguments in response: that
he (1) did not “enter” Nebraska on or after January 1, 1997, and
(2) was not required to register under the laws of California or
Florida. We find no merit to either argument.
Skaggs argues that he did not “enter” Nebraska after 1997
because he entered the state in 1992, and Nebraska has been
his permanent home from 1992 to the present. Though Skaggs
admits that he lived in Florida for a period of time, he claims
he never broke ties with Nebraska, as he voted and owned
property in Nebraska.
Though Skaggs was present in Nebraska before 1997, it is
undisputed that Skaggs left Nebraska in 2003 and was present
in Florida for a substantial amount of time between 2003 and
2006. And Skaggs’ Florida sex offender registration form indi-
cated that both his temporary and permanent addresses were
in Florida. The hearing officer determined that the evidence
indicated that Skaggs left Nebraska in 2003 and then entered
Nebraska in 2006 under the meaning of § 29-4003(1)(b)
(Reissue 2008). We agree with that determination and find it
8 Id.
9 See 2011 Neb. Laws, L.B. 61, § 2.
158 	282 NEBRASkA REPORTS

equally applicable under the language of § 29-4003(1)(a)(iv)
(Cum. Supp. 2010).
[6] Skaggs claims that his permanent residence has remained in
Nebraska since 1992, but we determine that § 29-4003(1)(a)(iv)
(Cum. Supp. 2010) has no residency requirement. The plain
language of the statute merely requires that Skaggs had entered
the state after 1997. Evidence in the record certainly supports
that Skaggs left Nebraska in 2003 and returned some time in
2006. Though Skaggs characterized his return to Nebraska as
“re-entry,”10 and not “entry” within the meaning of the statute,
we find Skaggs’ characterization meritless. Statutory language
is to be given its plain and ordinary meaning, and an appellate
court will not resort to interpretation to ascertain the mean-
ing of statutory words which are plain, direct, and unambig-
uous.11 The plain language of “[e]nters” within the meaning of
§ 29-4003(1)(a)(iv) (Cum. Supp. 2010) is satisfied by Skaggs’
return to Nebraska in 2006.
We also reject Skaggs’ argument that he was not required
to register in another state. Skaggs contends that he was not
required to register in California, because California vacated
his registration requirement when his parole was transferred
to Nebraska. We note that the record contains a letter from the
office of the Attorney General of California disagreeing with
that assertion, stating that Skaggs’ conviction requires “life-
time registration” in California. But more important, as noted
above, Skaggs was indisputably registered as a sex offender
in Florida. Skaggs’ argument is a technical one: He contends
that although he registered in Florida, he was not “required” to
do so within the meaning of § 29-4003(1)(a)(iv) (Cum. Supp.
2010)—instead, he claims that he did so “voluntarily” to avoid
legal trouble in Florida, but was not actually “required” to do
so under Florida law.12
We do not read § 29-4003(1)(a)(iv) (Cum. Supp. 2010) so
narrowly. Skaggs was arrested in Florida and charged with
10 See brief for appellant at 15.
11 See In re Interest of Matthew P., 275 Neb. 189, 745 N.W.2d 574 (2008).
12 Reply brief for appellant at 3-4.
SkAGGS v. NEBRASkA STATE PATROL 	159
Cite as 282 Neb. 154

failing to register. He was informed by Florida law enforce-
ment that he was required to register, and he did so. We decline
Skaggs’ implicit invitation to parse Florida law and determine
whether the conclusion of Florida authorities was correct under
Florida law, nor are we persuaded that registrants would “vol-
untarily” register as sex offenders in the absence of a require-
ment that they do so. Instead, we find that a sex offender
registrant’s actual registration under another jurisdiction’s law
is conclusive evidence that the registrant was “required” to
register within the meaning of § 29-4003(1)(a)(iv) (Cum.
Supp. 2010). Skaggs was required to register as a sex offender
in Florida.
In short, the evidence establishes beyond reasonable dis-
pute that Skaggs was required to register as a sex offender
in another state and entered Nebraska after January 1, 1997.
Therefore, although our reasoning differs somewhat from that
of the hearing officer and the district court, we agree with their
conclusion that SORA applies to Skaggs.
SkaggS’ conStitutional claiMS
Skaggs contends that SORA’s registration requirement is
an unconstitutional violation of his 14th Amendment right
to travel between the several states. However, Skaggs failed
to raise his constitutional question in his petition for judicial
review, as required by § 84-917(2)(b). The district court thus
did not decide the 14th Amendment issue. However, Skaggs
now argues that his failure to raise the issue in his petition
for judicial review should not prevent appellate review of
the constitutionality of SORA as applied to Skaggs under
§ 84-917(5)(b)(i), which reads: “If the court determines that
the interest of justice would be served by the resolution of
any other issue not raised before the agency, the court may
remand the case to the agency for further proceedings.” Though
§ 84-917(5)(b) indeed permits the district court to remand the
case back to the agency for further proceedings, that is per-
missible only where it is necessary in the interest of justice to
resolve an issue not raised before the agency. Here, the record
reflects that Skaggs raised the constitutional issue during the
agency hearing.
160 	282 NEBRASkA REPORTS

Section 84-917(5)(b)(i) permits the district court to review
only matters which were not properly raised in the proceedings
before the agency. And in any event, the question here is not
whether the issue was not properly presented to the agency—it
is whether the issue was properly presented to the district
court. Section 84-917(2)(b) requires that a petition for judicial
review set forth, among other things, “the petitioner’s reasons
for believing that relief should be granted” and “a request for
relief, specifying the type and extent of the relief requested.”
An issue that has not been presented in the petition for judicial
review has not been properly preserved for consideration by the
district court.13
In other words, a party to an administrative appeal who
wishes to raise an issue in district court, whether or not that
issue was presented to the agency, must still present that
issue to the court in its petition for judicial review. Skaggs
did not. The district court thus did not err when it refused to
address the issue of constitutionality, and because the issue
was not properly preserved for judicial review, we too do not
address the issue of whether SORA, as applied to Skaggs, was
unconstitutional.
CONCLuSION
For the foregoing reasons, we affirm the judgment of the
district court.
aFFirMed.
Moore, Judge, participating on briefs.
Wright, J., not participating.
13 See, Hauser v. Nebraska Police Stds. Adv. Council, 269 Neb. 541, 694
N.W.2d 171 (2005); Moore v. Nebraska Dept. of Corr. Servs. Appeals Bd.,
8 Neb. App. 69, 589 N.W.2d 861 (1999).
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Cite as 282 Neb. 154