SUPERVISORY WRIT TO THE JUVENILE COURT, PARISH OF ORLEANS
CRICHTON, J. [*]
granted the writ in this matter primarily to address the
constitutionality of mandatory lifetime sex offender
registration as applied to a juvenile. This appeal
arises from an application for post-conviction relief in
which the juvenile argued that mandatory lifetime sex
offender registration pursuant to R.S. 15:542,  as applied to a
fourteen-year-old juvenile, violates the Eighth Amendment
prohibition of inflicting "cruel and unusual
punishments." U.S. Const. amend. VIII. Finding that A.N.
did not have a right to file for post-conviction relief
because he was not in custody at the time of his application,
we affirm the denial of A.N.'s post-conviction relief
application by the juvenile court. Since A.N. is denied
relief on the basis of custody, all remaining issues
presented by his writ application, including whether R.S.
15:542 is unconstitutional under the Eighth Amendment, are
AND PROCEDURAL HISTORY
was adjudicated delinquent in Orleans Parish Juvenile Court
for the crime of aggravated incest involving his sister, J.N.
The petition charging A.N. alleged that J.N. was between the
ages of seven and eleven and that A.N. was between the ages
of twelve and sixteen when the offending acts occurred. The
investigation began in 2011 when J.N. submitted a poem she
wrote for school expressing her anger at her older brother
for molesting her. J.N.'s teacher passed the poem to a
social worker who later confirmed with J.N. that she had been
sexually abused by her brother. A.N. admitted that he and
J.N. engaged in sexual acts but stated it was consensual.
to the delinquency hearing in March 2012, A.N. filed a motion
to be exempt from sex offender registration, or, in the
alternative, to declare R.S. 15:542, et seq., which
requires lifetime sex offender registration for certain
juvenile offenders, unconstitutional as applied to a
fourteen-year-old. The juvenile court denied the motion. A.N.
was ultimately adjudicated delinquent for committing
aggravated incest in violation of R.S. 14:78.1. As a result
of this adjudication and a finding that A.N. was fourteen
years old at the time of the offense, the juvenile court
ordered A.N. to be placed in secure care with the Office of
Juvenile Justice until he turned twenty-one years old, to
register as a sex offender for the remainder of his life
pursuant to R.S. 15:542, and to participate in "sexual
predators counseling." On appeal, A.N. argued that the
sex offender registration and notification requirements as
applied to a juvenile offender are punitive and not
rehabilitative. He also argued that the evidence was
insufficient to establish that the aggravated incest occurred
after he turned fourteen years of age and, therefore, he
should not be subject to sex offender registration and
notification requirements upon release from custody.
court of appeal upheld his adjudication and disposition, and
this Court denied writs. State in Interest of A.N.,
12-1144 (La.App. 4 Cir. 8/28/13), 123 So.3d 824, 825,
writ denied, 13-2287 (La. 11/8/13), 125 So.3d 1095.
Because the juvenile was twenty years old at the time of the
adjudication and was released early, he was held in secure
care for only six months. He remains, however, subject to the
requirement that he maintain sex offender registration for
life pursuant to R.S. 15:542.
timely filed a petition for post-conviction relief in
juvenile court on November 7, 2014, challenging the
constitutionality of sex offender registration as applied to
a juvenile. Notably, the petition does not list a place of
confinement or a custodian to be served, as A.N. was no
longer in secure care. The juvenile court held a hearing on
January 11, 2018 and summarily denied the application for
post-conviction relief. The judge read the victim's
poem-which contained the allegations of abuse that began the
initial investigation in 2011-into the record and stated that
she was "not going to reconsider [her] decision at that
time that [A.N.] register as a sex offender."
court of appeal denied A.N.'s writ application, finding
that his arguments were without merit for the following
reasons: (1) pursuant to C.Cr.P. art. 928, it is within the
discretion of the district court to dismiss an application
for post-conviction relief without requiring an answer; (2)
the previous denial of A.N.'s Eighth Amendment challenge
on direct review is the law of the case; and (3) A.N. is
not in custody and therefore cannot seek post-conviction
relief. State in Interest of A.N., 18-0219 (La.App.
4 Cir. 8/23/18) (unpub'd).
are several threshold issues this Court must examine before
we can reach the merits of A.N.'s application -
i.e., the Eighth Amendment question. Finding that
A.N. was not in custody at the time of his post-adjudication
petition and as such not entitled to post-adjudication
relief, we ultimately do not reach the constitutional issue.
preliminary matter, the Attorney General argues that the
Orleans Parish Juvenile Court was an improper venue to
determine whether to relieve A.N. of sex offender
registration. The Attorney General cites R.S. 15:544.1, which
provides in pertinent part:
Any petition for injunctive relief or for declaratory
judgment regarding the application or interpretation
of the registration and notification requirements of this
Chapter . . . shall be filed through ordinary civil
proceedings in the district court for the parish where the
state capitol is situated.
according to the plain language of R.S. 15:544.1, the 19th
Judicial District Court is the proper venue for challenging
the "application or interpretation" of the
registration requirements set forth in Title 15, Chapter 3-B,
which includes R.S. 15:542. See also State v. Cook,
16-1518 (La. 5/3/17), 226 So.3d 387 (finding that defendant
should have brought action in 19th J.D.C. where alleging R.S.
15:540, et seq., does not apply to those found not
guilty of a sexual crime by reason of insanity). In the
instant case, however, A.N. does not seek relief regarding
the "application or interpretation" of R.S. 15:542.
Instead, A.N. (1) concedes that, as written, R.S. 15:542
does apply to him, and (2) that such application
violates the Eighth Amendment. Since the issue presented by
A.N.'s petition and writ application to this Court is not
one of application or interpretation, R.S. 15:544.1 is
inapplicable. The juvenile court, therefore, was a proper
venue for A.N.'s petition for post-conviction relief, and
this argument is without merit.
Attorney General also argues that this matter should be
remanded to the juvenile court for an evidentiary hearing
because the Department of Justice was not served in the lower
court proceedings. In support of this argument, the Attorney
General cites C.C.P. art. 1880, which requires service upon
the Attorney General of any written pleading challenging the
constitutionality of state statutory authority in the context
of a petition for declaratory relief. That article provides:
When declaratory relief is sought, all persons shall be made
parties who have or claim any interest which would be
affected by the declaration, and no declaration shall
prejudice the rights of persons not parties to the
proceeding. In a proceeding which involves the validity of a
municipal ordinance or franchise, such municipality shall be
made a party, and shall be entitled to be heard. If the
statute, ordinance, or franchise is alleged to be
unconstitutional, the attorney general of the state shall
also be served with a copy of the proceeding and be entitled
to be heard.
C.C.P. art. 1880 (emphasis added).
A.N. did allege in his post-conviction petition that R.S.
15:542 is unconstitutional as applied to a fourteen-year-old
juvenile, we find that C.C.P. art. 1880 does not mandate
service upon the Attorney General in this case. Article 1880
is found within the Code of Civil Procedure, and the Attorney
General fails to successfully argue why this particular
civil procedural article should be applied to a
post-conviction criminal proceeding established by
and defined in the Code of Criminal Procedure. Moreover, the
reason for which the legislature would have mandated that
parties provide notice to the Attorney General in a civil
matter is clear, as civil matters generally involve disputes
among private parties, and in such cases the State would not
otherwise have any actual or constructive notice that a party
is assailing the constitutionality of a "statute,
ordinance, or franchise." In a criminal matter, by
contrast, the State is always a party to the proceeding
through its district attorneys. See C.Cr.P. art. 61
("Subject to the supervision of the attorney general, as
provided in C.Cr.P. art. 62, the district attorney has entire
charge and control of every criminal prosecution instituted
or pending in his district, and determines whom, when, and
how he shall prosecute."); C.Cr.P. art. 927 ("If an
application alleges a claim which, if established, would
entitle the petitioner to relief, the court shall order the
custodian, through the district attorney in the parish in
which the defendant was convicted, to file any
procedural objections he may have, or an answer on the merits
if there are no procedural objections, within a specified
period not in excess of thirty days.") Any concern we
may have had that the Attorney General's interest should
be represented in criminal court proceedings related to the
constitutionality of a statute is thus quelled by our
understanding that the State - through its acting district
attorney - is on notice of any constitutional argument made
in the district court, and the State's interests are thus
represented in all criminal matters. State v.
Hatton, 2007-2377 (La. 7/1/08), 985 So.2d 709, 721
(recognizing the purpose of procedural requirements for
challenging the constitutionality of a statute is "to
give the parties an opportunity to brief and argue the
constitutional grounds and to prepare an adequate record for
review."). Furthermore, nothing prohibits the Attorney
General from exercising his statutory authority to
participate in such proceedings if he believes the
circumstances warrant his intervention. C.Cr.P. art.
62(B). This argument is without merit.
the State does not argue otherwise, we must first address
whether the Louisiana Children's Code provides a right to
Code art. 803 mandates that where procedures are not provided
in Title VIII thereof, the court shall proceed in accordance
with the Code of Criminal Procedure. See also Ch. C.
art. 104 ("Where procedures are not provided in this
Code, or otherwise by law, the court shall proceed in
accordance with: (1) The Code of Criminal Procedure in a
delinquency proceeding."). While Ch. C. art. 909 of that
title permits a juvenile court to modify any order of
disposition, such power does not provide relief to a juvenile
equivalent to post-conviction relief, C.Cr.P. art 924, et
seq., and is instead analogous to relief obtained
through a motion to reconsider sentence. See C.Cr.P.
art. 881.1; State v. J.R.S.C., 00-2108 (La. 6/1/01),
788 So.2d 424, 424-425 (noting that the sole difference
between motions under the Ch. C. art. 909 and C.Cr.P. art.
881.1 "is that the juvenile may file his motion to
modify the judgment of disposition at any time while the
disposition is in force, whereas an adult offender's
motion to reconsider sentence must be filed within 30 days of
original sentencing unless the trial court enlarges that time
distinction between C.Cr.P. art. 924, et seq., and
Ch. C. art. 909 is the ability in a post-conviction petition
not only to seek modification of the sentence - in a juvenile
proceeding, the "disposition" - but also to
overturn the conviction - in a juvenile proceeding, the
"adjudication." Applications for post-conviction
relief are defined under C.Cr.P. art. 924 as "a petition
filed by a person in custody after sentence following
conviction for the commission of an offense seeking to have
the conviction and sentence set aside."
Id. (emphasis added). In Ch. C. art. 909, by
contrast, the only possible relief to be granted is a
modification of the disposition.
foregoing reasons, it is clear that Title VIII of the
Children's Code does not provide for post-conviction
relief for a juvenile, i.e., post-adjudication
relief. The legislature has therefore directed through Ch. C.
art. 803 that the courts impute C.Cr.P. art. 924, ...