More Than Citation to Supplemental Authority is Required to Present Argument on Appeal

Yesterday, the Supreme Court affirmed a Violent Sexual Predator designation even though it had previously declared the VSP designation process unconstitutional in Smith v. Sexual Offender Classification Bd., 146 Idaho 822, 203 P.3d 1221 (2009).

Evan Morgan pleaded guilty to lewd and lascivious conduct with a minor and to possession of sexually exploitative material. After Morgan received a tentative parole date, the SOCB designated him as a VSP. Morgan appealed to the district court.

In the district court, Morgan was given access to a summary of the information that the SOCB relied on in making its decision, but he also filed a motion seeking access to the actual documents reviewed by the SOCB. The district court denied Morgan’s request and upheld the designation. Morgan appealed. The Court of Appeals affirmed, but the Supreme Court sua sponte granted review of the decision of the Court of Appeals.

Presumably the sua sponte review order was done in light of the Smith case, which was pending before the Court. About three months after acceptance of review, the Court issued Smith, which held that the SOR Act is constitutionally infirm in part because it denies offenders access to the full record relied upon by the SOCB and instead allows access only to the summary of that information. "Unlike the offender in Smith, however, Morgan did not advance a constitutional claim before the district court." Moreover, "Morgan did not file a brief with this Court following our sua sponte grant of review from the decision of the court of appeals." Instead, he submitted a letter citing Smith as additional authority. This letter, the Court held, did not "cure Morgan’s waiver of constitutional claims."

The Supreme Court then rejected Morgan's non-constitutional argument that he should have received the original documents. It also held that, even though Morgan is confined to a wheelchair, there was still substantial evidence to support the VSP designation.

Morgan v. Sexual Offender Classification Board, http://www.isc.idaho.gov/opinions/Morgan%20v.%20SOCB,%2035913.pdf