State v. Harris

214 	284 NEBRASKA REPORTS
State of NebraSka, appellee, v.
JaSoN H arriS, appellaNt.
817 N.W.2d 258
Filed July 27, 2012. 	No. S-11-527.
1. Constitutional Law: Statutes: Judgments: Appeal and Error. The constitu-
tionality and construction of a statute are questions of law, regarding which an
appellate court is obligated to reach conclusions independent of those reached by
the court below.
2. Constitutional Law: Statutes: Presumptions. A statute is presumed to be con-
stitutional, and all reasonable doubts are resolved in favor of its constitutionality.
3. Constitutional Law: Standing. Standing to challenge the constitutionality of a
statute under the federal or state Constitution depends upon whether one is, or is
about to be, adversely affected by the language in question; to establish standing,
the contestant must show that as a consequence of the alleged unconstitutionality,
the contestant is, or is about to be, deprived of a protected right.
4. Constitutional Law: Convictions: Statutes. A defendant is prohibited from
attempting to circumvent or avoid conviction under a particular statute by assert-
ing a constitutional challenge to another, collateral statute which is irrelevant to
the prosecution.
5. Constitutional Law: Statutes: Proof. A challenge to a statute, asserting that no
valid application of the statute exists because it is unconstitutional on its face, is
a facial challenge. But a plaintiff can only succeed in a facial challenge by estab-
lishing that no set of circumstances exists under which the act would be valid,
i.e., that the law is unconstitutional in all of its applications.
6. Constitutional Law: Statutes: Waiver. In order to bring a constitutional chal-
lenge to the facial validity of a statute, the proper procedure is to file a motion to
quash, and all defects not raised in a motion to quash are taken as waived by a
defendant pleading the general issue.
7. Constitutional Law: Statutes: Pleas. Challenges to the constitutionality of a
statute as applied to a defendant are properly preserved by a plea of not guilty.
8. Constitutional Law: Appeal and Error. The Nebraska Supreme Court ordinar-
ily construes Nebraska’s ex post facto clause to provide no greater protections
than those guaranteed by the federal Constitution.
9. Constitutional Law: Statutes: Sentences. Both U.S. Const. art. I, § 10, and
Neb. Const. art. I, § 16, provide that no ex post facto law may be passed. A law
which purports to apply to events that occurred before the law’s enactment, and
which disadvantages a defendant by creating or enhancing penalties that did not
exist when the offense was committed, is an ex post facto law and will not be
endorsed by the courts.
10. Constitutional Law: Criminal Law: Other Acts: Time. The retroactive applica-
tion of civil disabilities and sanctions is permitted; it is only criminal punishment
that the Ex Post Facto Clause prohibits.
11. 	Sentences: Statutes: Legislature: Intent. In order to determine whether a
statute imposes civil sanctions or criminal punishment, a court must apply the
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

STATE v. HARRIS 	215
Cite as 284 Neb. 214
two-pronged intent-effects test. It must first ascertain whether the Legislature
intended the statute to establish civil proceedings. This is a question of statutory
construction. If the intention of the Legislature was to impose punishment, that
ends the inquiry. If, however, the intention was to enact a regulatory scheme
that is civil and nonpunitive, a court must further examine whether the statutory
scheme is so punitive either in purpose or effect as to negate the State’s intention
to deem it “civil.”
12. Sentences: Statutes: Legislature: Intent: Proof. Because an appellate court
ordinarily defers to the Legislature’s stated intent, only the clearest proof will
suffice to override legislative intent and transform what has been denominated a
civil remedy into a criminal penalty.
13. Sentences: Statutes: Intent. In determining whether a statutory scheme is so
punitive that it effectively transforms the statute from a civil statute to a criminal
statute, a court refers to the seven factors noted in Kennedy v. Mendoza-Martinez,
372 U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963). The factors are neither
exhaustive nor dispositive but are useful guideposts. The following seven factors
serve as guideposts: (1) whether the sanction involves an affirmative disability or
restraint, (2) whether it has historically been regarded as punishment, (3) whether
it comes into play only on a finding of scienter, (4) whether its operation will pro-
mote the traditional aims of punishment—retribution and deterrence, (5) whether
the behavior to which it applies is already a crime, (6) whether an alternative pur-
pose to which it may rationally be connected is assignable for it, and (7) whether
it appears excessive in relation to the alternative purpose assigned.
14. Appeal and Error. Errors that are assigned but not argued will not be addressed
by an appellate court.
15. Constitutional Law: Equal Protection: Statutes: Presumptions: Proof. Where
a statute is challenged under the Equal Protection Clause, the general rule is that
legislation is presumed to be valid, and the burden of establishing the unconstitu-
tionality of the statute is on the one attacking its validity.
16. Equal Protection. The Equal Protection Clause does not forbid classifications; it
simply keeps governmental decisionmakers from treating differently persons who
are in all relevant aspects alike.
17. Equal Protection: Proof. The initial inquiry in an equal protection analysis
focuses on whether the challenger is similarly situated to another group for the
purpose of the challenged governmental action. Absent this threshold showing,
one lacks a viable equal protection claim. In other words, the dissimilar treatment
of dissimilarly situated persons does not violate equal protection rights.
18. Equal Protection: Statutes. In an equal protection challenge to a statute, the
level of judicial scrutiny applied to a particular classification may be dispositive.
19. Constitutional Law: Statutes. Legislative classifications involving either a sus-
pect class or a fundamental right are analyzed with strict scrutiny, and legislative
classifications not involving a suspect class or fundamental right are analyzed
using rational basis review.
20. Equal Protection: Words and Phrases. The “right to travel” includes at least
three different components: (1) the right of a citizen of one state to enter and to
leave another state, (2) the right to be treated as a welcome visitor rather than an

216 	284 NEBRASKA REPORTS
unfriendly alien when temporarily present in the second state, and (3) for those
travelers who elect to become permanent residents, the right to be treated like
other citizens of that state.
21. Equal Protection: Statutes. When a classification created by state action does
not jeopardize the exercise of a fundamental right or categorize because of an
inherently suspect characteristic, the Equal Protection Clause requires only that
the classification rationally further a legitimate state interest.
22. Constitutional Law: Statutes: Legislature: Intent. Under rational basis review,
an appellate court will uphold a classification created by the Legislature where it
has a rational means of promoting a legitimate government interest or purpose. In
other words, the difference in classification need only bear some relevance to the
purpose for which the difference is made.
23. Equal Protection: Proof. Under the rational basis test, whether an equal protec-
tion claim challenges a statute or some other government act or decision, the
burden is upon the challenging party to eliminate any reasonably conceivable
state of facts that could provide a rational basis for the classification.
Appeal from the District Court for Lancaster County: robert
r. otte, Judge. Affirmed.
Joshua W. Weir, of Dornan, Lustgarten & Troia, P.C., L.L.O.,
for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
H eavicaN, c.J., WrigHt, coNNolly, MccorMack, M iller-
lerMaN, and caSSel, JJ.
M iller-lerMaN, J.
NATURE OF CASE
Jason Harris appeals his Class IV felony conviction under
Neb. Rev. Stat. § 29-4011(1) (Cum. Supp. 2010) based on
his failure to comply with certain registration provisions
of Neb. Rev. Stat. § 29-4004(9) (Cum. Supp. 2010) of
the Sex Offender Registration Act (SORA), Neb. Rev. Stat.
§§ 29-4001 through 29-4014 (Reissue 2008, Cum. Supp.
2010 & Supp. 2011). Harris claims that the district court
for Lancaster County erred when it rejected his constitu-
tional challenges to SORA. We conclude that the challenges
asserted by Harris are without merit, and we therefore affirm
Harris’ conviction.

STATE v. HARRIS 	217
Cite as 284 Neb. 214
STATEMENT OF FACTS
Harris was convicted of sexual assault of a child and third
degree sexual assault in 2001. He was sentenced by the district
court for Sheridan County to imprisonment for 3 to 5 years on
the first count and for 1 year on the second count. The court
found that Harris was not a “‘violent sexual offender.’” At his
sentencing, Harris was given notice that he would be required
to register as a sex offender upon his release from prison and
for the next 10 years thereafter. Harris began registering upon
his release from prison in 2003.
In 2009, Harris began to register as what is commonly
referred to as a “transient” because he was frequently on the
road either for his job as a truckdriver or for his work provid-
ing sound, light, and tour support for national bands. He main-
tained an office and mailing address at an apartment in which
he had lived in Lincoln, Nebraska. As a transient, Harris was
required under § 29-4004(9) to update his registration informa-
tion at least once every 30 days.
Harris updated his registration with the Lancaster County
sheriff on April 5, 2010, and was therefore required to com-
plete his next update by May 5. Harris failed to timely pro-
vide his update. Harris asserted that he intended to update
his information on May 5, but his truck broke down in Iowa
that day, he arrived in Lincoln late on May 5, and he had to
leave on a band tour the next day. Harris did not return to
Lincoln until May 13, and he was not in Lincoln during the
business hours that the sheriff’s office was open to allow him
to update his information. On May 14, the sheriff’s office
contacted Harris to inform him he had not updated his regis-
tration. Harris went to the sheriff’s office to register that day;
he was arrested and charged with failing to timely update his
SORA registration.
The State filed an information in the district court for
Lancaster County charging Harris under § 29-4011(1), which
provides that “[a]ny person required to register under [SORA]
who violates the act is guilty of a Class IV felony.” Although
the State did not cite § 29-4004(9) in the information, it used
the language of § 29-4004(9) when it alleged that Harris
had “fail[ed] to update his . . . registration, in person, to

218 	284 NEBRASKA REPORTS
the sheriff of the county in which he [was] located . . . at
least once every thirty calendar days during the time he . . .
remain[ed] without residence, temporary domicile, or habitual
living location.”
Harris filed a motion to quash the information because “the
statutory scheme from which the criminal complaint arises is
unconstitutional on its face and as applied to [Harris].” In the
motion, he asserted two constitutional challenges to certain
sections of SORA: an ex post facto challenge to §§ 29-4001.01
through 29-4006 and 29-4009 through 29-4013, and a due
process challenge to §§ 29-4009 and 29-4013. Harris gener-
ally challenged amendments made to SORA by two legislative
enactments—2009 Neb. Laws, L.B. 97, which became opera-
tive on May 21, 2009, and 2009 Neb. Laws, L.B. 285, which
became operative on January 1, 2010. With regard to the ex
post facto challenge, Harris contended that the 2009 amend-
ments imposed retroactive and additional punishment for his
2001 convictions. With regard to the due process challenge,
Harris contended that the 2009 amendments violated his due
process rights by eliminating the individual assessment to
determine the level of community notification and by imposing
public Web site notification for all registrants.
The district court overruled Harris’ motion to quash. In
its order ruling on the motion, filed November 16, 2010, the
court noted a case pending in the U.S. District Court for the
District of Nebraska, in which the federal court had prelimi-
narily enjoined the State of Nebraska from enforcing certain
provisions of SORA as amended by L.B. 97 and L.B. 285 as to
those previously convicted of sex crimes but not on probation,
parole, or court-monitored supervision after January 1, 2010.
See Doe v. Nebraska, 734 F. Supp. 2d 882 (D. Neb. 2010). The
court noted in particular that the federal court had enjoined the
enforcement of § 29-4006(2) (requiring consent to search and
installation of monitoring hardware and software) and Neb.
Rev. Stat. § 28-322.05 (Cum. Supp. 2010) (making it crime to
use Internet social networking sites accessible by minors by
person required to register under SORA). The district court
noted that in a subsequent order, the federal court had ordered
that a trial was necessary to determine the constitutionality

STATE v. HARRIS 	219
Cite as 284 Neb. 214
of § 29-4006(1)(k) and (s) (requiring disclosure of certain
identifiers, e-mail addresses, electronic domains, and Internet
sites); § 29-4006(2) (requiring registrant to consent to search
and monitoring of hardware and software); and § 28-322.05
(making it crime to use social networking sites or chat room
services accessible by minors). See Doe v. Nebraska, supra.
The court finally noted that the federal court had concluded
in Doe that there was no merit to the plaintiffs’ constitutional
challenges to all other statutory provisions enacted or amended
by L.B. 97 and L.B. 285. See Doe v. Nebraska, supra. Based
on the federal court’s rulings in Doe, the court concluded that
Harris’ motion to quash should be overruled.
Thereafter, Harris entered a plea of not guilty. After the
State rested its case in a stipulated bench trial, Harris renewed
the objections he made in the motion to quash and the district
court overruled the motion. After Harris rested his defense,
he moved the court to dismiss the action as unconstitutional
because it violated the Ex Post Facto, Due Process, Equal
Protection, and Commerce Clauses as applied to him. The
court overruled the motion and thereafter found Harris guilty
of violating SORA, a Class IV felony under § 29-4011,
because he had failed to update his registration in violation
of § 29-4004(9). The court sentenced Harris to pay a fine of
$2,500 and costs of the action.
Harris appeals his conviction.
ASSIGNMENTS OF ERROR
Harris claims that the district court erred when it rejected
his constitutional challenges to SORA as amended in 2009.
He specifically asserts that SORA as amended violates the
Ex Post Facto, Due Process, Equal Protection, and Commerce
Clauses of the U.S. and Nebraska Constitutions on its face and
as applied to him.
STANDARD OF REVIEW
[1] The constitutionality and construction of a statute are
questions of law, regarding which we are obligated to reach
conclusions independent of those reached by the court below.
State v. Perina, 282 Neb. 463, 804 N.W.2d 164 (2011).

220 	284 NEBRASKA REPORTS
ANALYSIS
Only Challenges to §§ 29-4004(9) and
29-4011 Are at Issue in This Case.
[2] We note first that a statute is presumed to be con-
stitutional, and all reasonable doubts are resolved in favor
of its constitutionality. Sarpy Cty. Farm Bureau v. Learning
Community, 283 Neb. 212, 808 N.W.2d 598 (2012). We note
that Harris makes constitutional arguments regarding various
provisions of SORA. As an initial matter, we must determine
which constitutional provisions and which portions of SORA
are properly at issue in this appeal.
Harris argued to the district court in his motion to quash
that SORA as amended in 2009 violated the Ex Post Facto and
Due Process Clauses on its face. Harris additionally argued in
his motion to dismiss at trial that the act violated the Ex Post
Facto, Due Process, Equal Protection, and Commerce Clauses
as applied to him. Harris’ arguments on appeal encompass
SORA as a whole, whereas his motion to quash limited his
challenge to §§ 29-4001.01 through 29-4006 and 29-4009
through 29-4013 as violative of ex post facto rights and
§§ 29-4009 and 29-4013 as violative of due process rights and
his motion to dismiss, while less focused on certain SORA
provisions, expanded his constitutional “as applied” rationale.
Much of Harris’ appellate argument focuses on the public noti-
fication provisions of §§ 29-4009 and 29-4013.
[3,4] Standing to challenge the constitutionality of a statute
under the federal or state Constitution depends upon whether
one is, or is about to be, adversely affected by the language
in question; to establish standing, the contestant must show
that as a consequence of the alleged unconstitutionality, the
contestant is, or is about to be, deprived of a protected right.
State v. Cushman, 256 Neb. 335, 589 N.W.2d 533 (1999). A
defendant is prohibited from attempting to circumvent or avoid
conviction under a particular statute by asserting a constitu-
tional challenge to another, collateral statute which is irrelevant
to the prosecution. Id. Although Harris was subject to the pub-
lic notification and other provisions of SORA, and although he
may therefore have had standing to challenge the entirety of
SORA in an action for declaratory judgment, in this criminal

STATE v. HARRIS 	221
Cite as 284 Neb. 214
case, he had standing to challenge only those statutes that were
relevant to the prosecution.
The State charged in the information that Harris violated
§ 29-4011(1), which provides that “[a]ny person required
to register under [SORA] who violates the act is guilty of a
Class IV felony.” Although the State did not cite § 29-4004(9)
in the information, it used the language of § 29-4004(9)
when it alleged that Harris had failed to update his registra-
tion within the time required under this section. Because
§§ 29-4004(9) and 29-4011 were the only portions of SORA
that were relevant to this prosecution, we conclude that they
were the only statutes for which Harris had standing in this
action to raise constitutional challenges. To the extent Harris’
arguments relate to SORA in its entirety or to portions of
SORA other than §§ 29-4004(9) and § 29-4011, they are not
relevant in this appeal. Accordingly, conclusions in this appeal
are limited to §§ 29-4004(9) and 29-4011 and do not deter-
mine the constitutionality of SORA as a whole or necessarily
determine the outcome of different challenges to §§ 29-4004
and 29-4011 or constitutional challenges to other sections
of SORA.
[5-7] We also note that Harris challenges the statutes at issue
under various constitutional provisions and that he fashions
such challenges as facial or as-applied challenges, or both.
We therefore comment on the difference between facial and
as-applied challenges and the differing procedures by which
such challenges are raised and preserved. A challenge to a
statute, asserting that no valid application of the statute exists
because it is unconstitutional on its face, is a facial challenge.
State v. Perina, 282 Neb. 463, 804 N.W.2d 164 (2011). But a
plaintiff can only succeed in a facial challenge by establish-
ing that no set of circumstances exists under which the act
would be valid, i.e., that the law is unconstitutional in all of its
applications. Id. In order to bring a constitutional challenge to
the facial validity of a statute, the proper procedure is to file
a motion to quash, and all defects not raised in a motion to
quash are taken as waived by a defendant pleading the general
issue. See State v. Kanarick, 257 Neb. 358, 598 N.W.2d 430
(1999). A motion to quash is the proper method to challenge

222 	284 NEBRASKA REPORTS
the constitutionality of a statute, but it is not used to question
the constitutionality of a statute as applied. State v. Perina,
supra. Instead, challenges to the constitutionality of a statute
as applied to a defendant are properly preserved by a plea of
not guilty. Id. With these principles in mind, we note that while
Harris preserved the as-applied challenges that he raised to
the district court when he pled not guilty, the only facial chal-
lenges that Harris preserved for appeal are those he raised in
the motion to quash.
Harris’ Facial Challenge Is Limited.
In his motion to quash, Harris stated that the specific stat-
utes he was challenging were: “Neb. Rev. Stat. §§ 29-4001.01
through [29-]4006, and [29-]4009 through [29-]4013 (now
constituting an ex post facto statutory scheme); Neb. Rev. Stat.
§[§] 29-4009 and [29-]4013 (now eliminating the individual
assessment to determine the level of community notification
and imposing website notification for all registrants).” The
challenges he raised in the motion to quash were therefore
an ex post facto challenge to various provisions of SORA
and a due process challenge to the notification provisions of
§§ 29-4009 and 29-4013, the latter two of which, as noted, are
not at issue in this case.
As discussed above, the only statutes that Harris had stand-
ing to challenge in this prosecution were §§ 29-4004(9) and
29-4011. Harris did not raise a facial challenge to § 29-4004(9),
regarding periodic registration, and § 29-4011, regarding the
Class IV felony consequence of violating SORA based on due
process; therefore, the only facial challenge properly raised
and preserved in this action was an ex post facto challenge to
§§ 29-4004(9) and 29-4011, which were within the range of
statutes Harris specified in his motion to quash with regard to
his ex post facto challenge. With regard to his facial challenge,
for completeness, we note that after the State rested its case at
trial, Harris purportedly raised a facial challenge, arguing that
SORA “violates his due process rights and it also constitutes
an ex post facto law on its face.” This reference to due process
was not effective in expanding his facial challenge previously
circumscribed by his motion to quash.

STATE v. HARRIS 	223
Cite as 284 Neb. 214
Harris’ As-Applied Challenge Is Limited.
With regard to Harris’ as-applied challenges, we note that
after he rested his defense, Harris moved “to dismiss this
action as unconstitutional, a violation of his due process rights
as an ex post facto law.” He further moved that “this is a viola-
tion of his equal protection of rights and it’s also in violation of
the commerce clause.” Harris argued that § 29-4004(9) singles
out registrants who are transients and discriminates against
them by placing an undue burden on them by its requirement
to register every 30 days as opposed to nontransients who are
not required to register as frequently. He also argued that the
requirement to register every 30 days placed an undue bur-
den on his interstate travel and commerce as a person who
travels frequently as part of his work. Having pled not guilty
and as a result of these arguments at trial, Harris preserved
his as-applied constitutional challenges based on the Equal
Protection and Commerce Clauses.
With these principles and background in mind, we proceed
to analyze Harris’ constitutional challenges as they relate to
§§ 29-4004(9) and 29-4011.
Harris Has Not Shown That Either § 29-4004(9)
or § 29-4011 Is an Ex Post Facto Punishment
Either on Its Face or as Applied.
Harris first claims that the district court erred when it
rejected his facial and as-applied challenges based on the Ex
Post Facto Clauses of the Nebraska and U.S. Constitutions.
Although Harris aims his arguments at SORA as a whole,
as noted above, the only statutes properly challenged in this
action are §§ 29-4004(9) and 29-4011. We reject Harris’ ex
post facto challenges to these statutes.
[8] Harris first urges is to adopt the proposition that the
Nebraska 	Constitution’s 	ex 	post 	facto 	clause 	provides
greater protection than does the equivalent clause in the U.S.
Constitution. We decline to do so. As we have stated, we
ordinarily construe Nebraska’s ex post facto clause to provide
no greater protections than those guaranteed by the federal
Constitution. State v. Simnick, 279 Neb. 499, 779 N.W.2d 335
(2010). See, also, In re Interest of A.M., 281 Neb. 482, 797

224 	284 NEBRASKA REPORTS
N.W.2d 233 (2011), cert. denied 565 U.S. 919, 132 S. Ct.
341, 181 L. Ed. 2d 214. Harris has not provided a convincing
reason to depart from our ex post facto jurisprudence in our
analysis of Harris’ ex post facto challenges to §§ 29-4004(9)
and 29-4011, and therefore the same analysis applies to both
the Nebraska and the U.S. provisions.
[9] Both U.S. Const. art. I, § 10, and Neb. Const. art. I, § 16,
provide that no ex post facto law may be passed. A law which
purports to apply to events that occurred before the law’s
enactment, and which disadvantages a defendant by creating
or enhancing penalties that did not exist when the offense was
committed, is an ex post facto law and will not be endorsed by
the courts. State v. Simnick, supra.
Section 29-4011 clearly imposes a criminal penalty because
it provides that a person who violates SORA is guilty of a
Class IV felony. However, § 29-4011 on its face and as applied
to Harris does not punish behavior that occurred before the
statute’s enactment. Instead, it operates prospectively to punish
violations of SORA requirements occurring after its enactment.
Section 29-4011 is not additional punishment for the crimes
that resulted in a person’s being subject to SORA; instead, it
punishes the act of failing to comply with SORA once a per-
son is subject to its requirements. Because § 29-4011 does not
punish an offense that occurred before its enactment, we reject
Harris’ ex post facto challenges—facial and as-applied—to
§ 29-4011.
[10,11] By contrast, § 29-4004(9), like other portions of
SORA, imposes requirements on persons based on their past
crimes. The retroactive application of civil disabilities and
sanctions is permitted; it is only criminal punishment that
the Ex Post Facto Clause prohibits. See In re Interest of
A.M., supra. Thus, we must determine whether § 29-4004(9)
imposes civil sanctions or criminal punishment. To do so, we
apply the two-pronged intent-effects test. See In re Interest of
A.M., supra. We must first ascertain whether the Legislature
intended the statute to establish civil proceedings. This is
a question of statutory construction. Id. If the intention of
the Legislature was to impose punishment, that ends the
inquiry. If, however, the intention was to enact a regulatory

STATE v. HARRIS 	225
Cite as 284 Neb. 214
scheme that is civil and nonpunitive, we must further exam-
ine whether the statutory scheme is so punitive either in
purpose or effect as to negate the State’s intention to deem it
“civil.” Id.
[12,13] Because we ordinarily defer to the Legislature’s
stated intent, only the clearest proof will suffice to override
legislative intent and transform what has been denominated a
civil remedy into a criminal penalty. In re Interest of A.M., 281
Neb. 482, 797 N.W.2d 233 (2011), cert. denied 565 U.S. 919,
132 S. Ct. 341, 181 L. Ed. 2d 214. In determining whether the
statutory scheme is so punitive that it effectively transforms
the statute from a civil statute to a criminal statute, we refer to
the seven factors noted in Kennedy v. Mendoza-Martinez, 372
U.S. 144, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963). The factors
are neither exhaustive nor dispositive but are useful guide-
posts. In re Interest of A.M., supra. The following seven fac-
tors serve as our guideposts: (1) whether the sanction involves
an affirmative disability or restraint, (2) whether it has histori-
cally been regarded as punishment, (3) whether it comes into
play only on a finding of scienter, (4) whether its operation
will promote the traditional aims of punishment—retribution
and deterrence, (5) whether the behavior to which it applies is
already a crime, (6) whether an alternative purpose to which
it may rationally be connected is assignable for it, and (7)
whether it appears excessive in relation to the alternative pur-
pose assigned. Id.
This court has had previous occasions to consider ex post
facto challenges with regard to SORA. In State v. Worm, 268
Neb. 74, 680 N.W.2d 151 (2004), we considered whether
lifetime registration requirements for an aggravated offense
violated the Ex Post Facto Clause. In the intent phase of the
analysis, we concluded that “the Legislature intended to cre-
ate a civil regulatory scheme to protect the public from the
danger posed by sex offenders.” 268 Neb. at 84, 680 N.W.2d
at 161. In the effects phase of the analysis, we concluded that
the defendant had “failed to show by the clearest proof that
[SORA’s] registration provisions are so punitive in either pur-
pose or effect as to negate the State’s intention.” 268 Neb. at
88, 680 N.W.2d at 163.

226 	284 NEBRASKA REPORTS
In Slansky v. Nebraska State Patrol, 268 Neb. 360, 685
N.W.2d 	335 	(2004), 	we 	again 	considered 	a 	challenge 	to
SORA’s registration provisions as well as to its notification
provisions. We reaffirmed that the legislative intent was as set
forth in Worm. Slansky v. Nebraska State Patrol, supra. We
further concluded that the adverse effects of SORA’s notifica-
tion provisions were “limited and not so punitive as to negate
the Legislature’s intent to enact a civil regulatory scheme.” 268
Neb. at 383, 685 N.W.2d at 354.
In Welvaert v. Nebraska State Patrol, 268 Neb. 400, 683
N.W.2d 357 (2004), a notification case, we rejected additional
arguments and again concluded that punishment was not the
intent of the Legislature in enacting SORA and that the effects
of the notification provisions were not so punitive as to negate
such intent. Compare State v. Simnick, 279 Neb. 499, 779
N.W.2d 335 (2010), (holding that lifetime community supervi-
sion pursuant to Neb. Rev. Stat. § 83-174.03 (Reissue 2008)
was punishment and was ex post facto as applied to crime
committed before its enactment).
Section 29-4004(9) is part of the registration requirements of
SORA. Our holding in Worm that the registration requirements
of SORA were not punitive in intent or effect applied to the
statute as it then existed. However, SORA has been amended,
and 	therefore, 	we 	must 	consider 	whether 	the 	Legislature
intended the 2009 amendments to SORA to be a punishment or
whether the effects of such amendments are so punitive as to
negate a legislative intent to create a civil regulatory scheme.
As noted earlier in this opinion, § 29-4004(9) is the only por-
tion of SORA’s registration provisions that is at issue in this
case and the notification provisions are not at issue. Therefore,
our analysis does not consider whether any of the 2009 regis-
tration or notification amendments other than the amendment
of § 29-4004(9) were punitive in intent or effect.
Section 29-4004(9) is sometimes referred to as applying to
“transients.” After the 2009 amendments, it provides:
Any person required to register or who is registered under
the act who no longer has a residence, temporary domi-
cile, or habitual living location shall report such change
in person to the sheriff of the county in which he or she

STATE v. HARRIS 	227
Cite as 284 Neb. 214
is located, within three working days after such change
in residence, temporary domicile, or habitual living loca-
tion. Such person shall update his or her registration, in
person, to the sheriff of the county in which he or she is
located, on a form approved by the sex offender registra-
tion and community notification division of the Nebraska
State Patrol at least once every thirty calendar days during
the time he or she remains without residence, temporary
domicile, or habitual living location.
Subsection (9) was not part of § 29-4004 at the time of
our decision in State v. Worm, 268 Neb. 74, 680 N.W.2d 151
(2004). The general substance of the present subsection (9)
was first added to the statute by 2006 Neb. Laws, L.B. 1199,
and was substantially similar to its current form, except that
a registrant was allowed 5 working days to report a change
and was not required to report a change or an update to his
or her registration in person. L.B. 1199 made amendments to
various provisions of the law regarding sex offenses and con-
victed sex offenders. With respect to the addition of what is
now § 29-4004(9), the Introducer’s Statement of Intent stated
that L.B. 1199 was intended in part to “[c]larif[y] certain
requirements under [SORA].” Judiciary Committee, 99th Leg.,
2d Sess. (Feb. 16, 2006). The introducer’s comments to the
Judiciary Committee stated that the bill “clarifies the obliga-
tions of homeless offenders relating to address notification.”
Committee Statement, L.B. 1199, 99th Leg., 2d Sess. 4 (Feb.
16, 2006). We determine that the Legislature’s intent in enact-
ing § 29-4004(9) in 2006 was to clarify the existing civil regu-
latory scheme and that its intent was not punitive.
Regarding the amendments to § 29-4004(9), which changed
5 days to 3 days and added the in-person reporting require-
ment, the Statement of Intent for L.B. 285 in 2009 stated that
SORA was being amended to comply with federal guidelines
and that the amendments had the purpose of creating “a more
comprehensive, nationalized system for registration of sex
offenders.” Judiciary Committee, 101st Leg., 1st Sess. 1 (Mar.
18, 2009). Similar to our holding in Worm, we believe that
the Legislature’s intent with the addition and amendment to
§ 29-4004(9) was to clarify and expand the already established

228 	284 NEBRASKA REPORTS
civil regulatory scheme for sex offenders and that it was not
the Legislature’s intent to punish.
Having 	determined 	that 	the 	Legislature 	did 	not 	intend
§ 29-4004(9) as punishment, we look to the seven factors in
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554,
9 L. Ed. 2d 644 (1963), to determine if the effect of the chal-
lenged statute is punitive. Regarding the Kennedy factors,
Harris claims, summarized, that the registration requirements
of § 29-4004(9) as amended are onerous, punitive, excessive,
and impose a disability. Again, we note that only the clearest
proof of a punitive effect will suffice to overcome our view
that the Legislature intended § 29-4004(9) to operate as a
civil statute.
Foremost among Harris’ arguments that § 29-4004(9) is
punitive is his claim that the in-person reporting requirement
is punitive in effect, generally and specifically, as applied to
him because his work requires extensive travel. As a transient,
Harris is required under § 29-4004(9) as amended to report his
whereabouts to the county sheriff in person at least once every
30 days. He states that the incident that gave rise to the charge
against him in this case resulted from his failure to report,
which was caused by a vehicle breakdown in Iowa that delayed
his return to Nebraska and caused him to miss the 30-day
in-person registration deadline in Nebraska.
In response to Harris’ claim that the in-person registration
requirement is punitive, the State notes in its appellate brief
that § 29-4004(9) requires only that a transient registrant
update his or her registration in person “‘to the sheriff of the
county in which he or she is located.’” Brief for appellee at
11. The State says in its brief that “the county sheriff to whom
Harris must report is where he is located at the time regard-
less if it is a county in Nebraska or not.” Id. at 52. The State
repeated this interpretation at oral argument. With respect to
the incident that gave rise to this case, the State asserts that
Harris could have updated his registration in Iowa. In this
regard, because on this record there is no indication that Harris
attempted to register in Iowa, we make no comment involv-
ing a scenario in which a registrant has in fact unsuccessfully
attempted to register in a location outside of Nebraska. The

STATE v. HARRIS 	229
Cite as 284 Neb. 214
State further notes that § 29-4004(9) provides that a transient
registrant update his or her registration “at least once every
thirty calendar days” rather than “every thirty calendar days,”
meaning that the updating does not have to be done on a spe-
cific day and can be done more than once during any particular
30-day period. Therefore, if a transient registrant knows that it
will be difficult to go to a county sheriff on a particular day or
period of days, he or she may update his or her registration in
advance of that time.
We have reviewed the statutory language of § 29-4004(9).
We agree with the State’s reading of the requirements of
§ 29-4004(9) and conclude that the in-person registration
requirement of § 29-4004(9) is not limited to presenting one-
self to a sheriff in a county in Nebraska. Given our shared
understanding of the statute, we conclude that the in-person
feature of the statute is not excessive nor punitive in effect.
We agree with the observation that “[a]ppearing in person may
be more inconvenient, but requiring it is not punitive.” U.S. v.
W.B.H., 664 F.3d 848, 857 (11th Cir. 2011). This observation
is especially apt where the in-person requirement is not limited
by geography.
We 	have 	examined 	Harris’ 	remaining 	arguments 	that
§ 29-4004(9) is punitive in effect under the Kennedy factors
and find them to be without merit. Section 29-4004(9) imposes
no affirmative disability or restraint; it does not prohibit a sex
offender from doing anything he or she would otherwise be
able to do. See Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155
L. Ed. 2d 164 (2003). Section 29-4004(9) does not further the
traditional punitive justifications of retribution or deterrence;
registration is a legitimate nonpunitive governmental objective.
See State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004). There
are alternative purposes for § 29-4004(9) other than punish-
ment, such as protecting the public and enhancing future law
enforcement efforts. In Worm, we observed that the two main
reasons for originally enacting SORA were the recognition that
sex offenders present a high risk to commit repeat offenses
and, prior to SORA, law enforcement agencies lacked current
information. See American Civil Liberties Union of Nevada v.
Masto, 670 F.3d 1046 (9th Cir. 2012) (discussing reasons for

230 	284 NEBRASKA REPORTS
enacting sex offender registration statutes). The Nebraska stat-
ute is well tailored to further these purposes, and the burdens
in § 29-4004(9) are not onerous. For completeness, we note
that an ex post facto challenge to other provisions of SORA as
amended was rejected in Doe v. Nebraska, 734 F. Supp. 2d 882
(D. Neb. 2010), and the reasoning in Doe is consistent with
our analysis.
We recognize that some of the Kennedy factors may weigh
in favor of § 29-4004(9) as being considered punishment. We
conclude, however, that most of the factors weigh in favor of
§ 29-4004(9) as being a civil statute. Certainly, the evidence to
the contrary does not rise to the clearest proof standard. In this
regard, we have considered Harris’ arguments that the effects
of § 29-4004(9) as applied to him are punitive and we find
them unconvincing. We conclude that § 29-4004(9) is not puni-
tive and thus does not violate the Ex Post Facto Clause.
Having determined that Harris has failed to show that either
§ 29-4004(9) or § 29-4011 is unconstitutional on its face or as
applied to him, we conclude that the district court did not err
when it rejected Harris’ ex post facto challenges.
Harris Makes No Due Process Challenge
to §§ 29-4004(9) and 29-4011.
Harris next claims that the district court erred when it
rejected his due process challenges. As noted above, Harris’
facial challenge based on the Due Process Clause, as set forth
in his motion to quash, was limited to an argument regarding
the notification provisions of §§ 29-4009 and 29-4013. As fur-
ther explained above, neither of those statutes is relevant to the
present criminal prosecution, and in resolving the present case,
we specifically make no comment on whether those statutes
comport with constitutional due process.
Harris does not make a facial due process challenge to the
only statutes at issue in this case—§§ 29-4004(9) and 29-4011.
We further note that Harris does not make any argument with
regard to §§ 29-4004(9) and 29-4011 as being in violation of
the Due Process Clause as applied to him. We therefore con-
clude that the district court did not err when it rejected Harris’
due process challenge.

STATE v. HARRIS 	231
Cite as 284 Neb. 214
Harris’ Commerce Clause Challenge Has Been
Abandoned and Harris’ Equal Protection
Challenge Is Without Merit.
As his final two assignments of error, Harris claims that the
district court erred when it rejected his Equal Protection and
Commerce Clauses challenges to SORA.
Although Harris asserts that SORA violates the Equal
Protection Clauses of the Nebraska and U.S. Constitutions
and the Commerce Clause of the U.S. Constitution on its
face and as applied to him, as we noted above, Harris did
not preserve a facial challenge based on the Equal Protection
and Commerce Clauses, because he did not include such
challenges in his motion to quash. Therefore, Harris has
only preserved as-applied challenges based on these constitu-
tional provisions.
Harris’ Commerce Clause Challenge
Has Been Abandoned.
[14] With regard to his Commerce Clause challenge, Harris
refers to “the Commerce Clause of the U.S. Constitution” in
his assignment of error on appeal; however, in the argument
section of his brief, he does not cite the Commerce Clause
and does not cite to authority that relies on the Commerce
Clause. Instead, in the argument section, he asserts that
SORA violates his right to travel and he cites cases that deal
with an infringement of the fundamental right to travel as a
violation of the Due Process Clause. It is unclear whether
Harris made an argument with regard to the Commerce
Clause to the district court. In any event, to the extent Harris
raised a Commerce Clause challenge below and assigned
error to it on appeal, he has failed to argue a challenge based
on the Commerce Clause and has abandoned such challenge
on appeal. Errors that are assigned but not argued will not
be addressed by an appellate court. State v. McGee, 282
Neb. 387, 803 N.W.2d 497 (2011). Therefore, to the extent
Harris has made a challenge based on the Commerce Clause
elsewhere in these proceedings, we do not address it on
appeal. However, we note that the argument he makes with
regard to a fundamental right to travel is relevant to the equal

232 	284 NEBRASKA REPORTS
protection challenge and will be considered in connection
therewith below.
Harris’ Equal Protection Challenge
Is Without Merit.
In regard to the equal protection challenge, we note Harris’
argument on appeal is directed to § 29-4004(9) and is properly
at issue in this case. We also note that although Harris did not
preserve a facial equal protection challenge, he did preserve
an as-applied equal protection challenge, which we consider
below. In this regard, we recognize that the analysis neces-
sary to address Harris’ as-applied challenge to some extent
requires us to employ the vocabulary of a facial challenge.
Harris argues that that statute’s requirement that he update his
registration in person at least once every 30 days is a viola-
tion of equal protection, because it classifies registrants who
are transient differently from registrants who have a regular
residence and imposes additional reporting requirements on
transient registrants. He asserts that the additional requirements
infringe on certain fundamental rights, particularly, in his case,
the right to travel.
[15-17] Where a statute is challenged under the Equal
Protection Clause, the general rule is that legislation is pre-
sumed to be valid, and the burden of establishing the uncon-
stitutionality of the statute is on the one attacking its validity.
State v. Rung, 278 Neb. 855, 774 N.W.2d 621 (2009). The
Equal Protection Clause of the 14th Amendment, § 1, mandates
that no state shall “deny to any person within its jurisdiction
the equal protection of the laws.” This clause does not forbid
classifications; it simply keeps governmental decisionmakers
from treating differently persons who are in all relevant aspects
alike. State v. Rung, supra. The initial inquiry in an equal pro-
tection analysis focuses on whether the challenger is similarly
situated to another group for the purpose of the challenged
governmental action. Absent this threshold showing, one lacks
a viable equal protection claim. Id. In other words, the dissimi-
lar treatment of dissimilarly situated persons does not violate
equal protection rights. Id.

STATE v. HARRIS 	233
Cite as 284 Neb. 214
[18,19] In an equal protection challenge to a statute, the
level of judicial scrutiny applied to a particular classification
may be dispositive. Id. Legislative classifications involving
either a suspect class or a fundamental right are analyzed with
strict scrutiny, and legislative classifications not involving a
suspect class or fundamental right are analyzed using rational
basis review. Id.
Harris contends that § 29-4004(9) classifies and treats dif-
ferently registrants who are transients compared to registrants
generally. Harris argues that as a registrant who travels for
work, § 29-4004(9) as it applies to him denies him equal
protection. Harris does not attempt to argue that such clas-
sification targets a suspect class. Instead, he argues that the
classification should receive strict scrutiny because it jeop-
ardizes the exercise of fundamental rights, including the right
to travel.
We have recognized that the right to interstate travel has
been characterized as fundamental and that therefore, courts
examine statutes impairing that right using the strict scru-
tiny standard of review. State v. Michalski, 221 Neb. 380,
377 N.W.2d 510 (1985), abrogated on other grounds, State
v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008). We determine
that the reporting requirements of § 29-4004(9) do not impair
such right.
[20] The U.S. Supreme Court has stated that the “‘right to
travel’” includes at least three different components: (1) the
right of a citizen of one state to enter and to leave another
state, (2) the right to be treated as a welcome visitor rather than
an unfriendly alien when temporarily present in the second
state, and (3) for those travelers who elect to become perma-
nent residents, the right to be treated like other citizens of that
State. Saenz v. Roe, 526 U.S. 489, 500, 119 S. Ct. 1518, 143
L. Ed. 2d 689 (1999). Harris does not argue that § 29-4004(9)
infringes the second or third component of the right to travel
noted by the U.S. Supreme Court; instead, he argues that it
infringes the first component, because he cannot travel freely
outside Nebraska and into other states for his work because he
is required to report in person every 30 days.

234 	284 NEBRASKA REPORTS
Although the in-person reporting requirement admittedly
places some burden on Harris, “mere burdens on a person’s
ability to travel from state to state are not necessarily a viola-
tion of their right to travel.” Doe v. Moore, 410 F.3d 1337,
1348 (11th Cir. 2005). In Doe v. Moore, the Court of Appeals
for the 11th Circuit rejected an argument that a sex offender
registry requirement that the registrant notify law enforcement
in person of a permanent or temporary change of residence
infringed the right to travel. The court determined that although
the requirement was “burdensome,” it was not “unreasonable
by constitutional standards, especially in light of the reasoning
behind such registration.” Id. at 348. We similarly determine
that although the requirement of § 29-4004(9) places some
burden on registrants like Harris by requiring them to update
their registrations in person at least once every 30 days, we do
not think it is an unreasonable burden, considering the purpose
of the registration is to keep track of the whereabouts of known
sex offenders.
The burdens of § 29-4004(9) are less onerous than Harris
appears to perceive them to be. As noted above in our ex post
facto analysis, the State suggests, and we agree, that the statute
should be construed such that the registrant may update his
or her registration with the sheriff of the county in which he
or she is located, whether that county is the county in which
he or she normally resides and whether or not the county is in
Nebraska or another state. Further, an update must be made “at
least once” every 30 days rather than exactly every 30th day;
therefore, the update may be done sooner than 30 days after the
last update if necessary for the registrant who plans to travel.
In light of this construction, § 29-4004(9) does not place an
unreasonable burden on a registrant’s right to travel between
Nebraska and other states. See Doe v. Nebraska, 734 F. Supp.
2d 882, 929 (D. Neb. 2010) (in case challenging Nebraska’s
SORA after 2009 amendments, federal district court was “not
persuaded that SORA’s in-person reporting requirements create
an actual barrier to travel”).
Harris also asserts in his appellate brief that SORA impli-
cates other fundamental rights; however, other than the right to
travel, Harris does not identify fundamental rights specifically

STATE v. HARRIS 	235
Cite as 284 Neb. 214
implicated by § 29-4004(9). We therefore determine that, other
than the right to travel, Harris has not shown that the classifica-
tion in § 29-4004(9) involves a fundamental right.
[21-23] Because Harris asserts no suspect classification and
because the statute does not jeopardize a fundamental right,
the classification in § 29-4004(9) treating transient registrants
different than registrants with a regular residence is subject to
a rational basis review for equal protection purposes. When a
classification created by state action does not jeopardize the
exercise of a fundamental right or categorize because of an
inherently suspect characteristic, the Equal Protection Clause
requires only that the classification rationally further a legiti-
mate state interest. State v. Rung, 278 Neb. 855, 774 N.W.2d
621 (2009). Under rational basis review, we will uphold a
classification created by the Legislature where it has a ratio-
nal means of promoting a legitimate government interest or
purpose. Id. In other words, the difference in classification
need only bear some relevance to the purpose for which the
difference is made. Id. Under the rational basis test, whether
an equal protection claim challenges a statute or some other
government act or decision, the burden is upon the challenging
party to eliminate any reasonably conceivable state of facts that
could provide a rational basis for the classification. Id.
On its face, § 29-4004(9) creates a classification based on
whether a registrant “has a residence, temporary domicile, or
habitual living location” and requires that if a registrant does
not, he or she is subject to more frequent updating of his or
her registration than registrants who have a regular residence.
As noted in connection with our ex post facto analysis, the
legislative purpose behind SORA is to create a civil regula-
tory scheme to protect the public from the danger posed by
sex offenders. This is a legitimate government interest or
purpose, and we determine that the classification created by
§ 29-4004(9) is rationally related to such purpose. In order
to protect the public, the registration system is used by law
enforcement to keep track of the whereabouts of known sex
offenders. Insofar as it is more difficult to keep track of reg-
istrants who do not have a regular residence, domicile, or liv-
ing location than it is for those registrants who have a regular

236 	284 NEBRASKA REPORTS
residence, it is rational to require such persons to update their
registration more frequently than other registrants.
In his as-applied challenge, Harris contends that because
he travels frequently for work, he is more heavily burdened
than other registrants by frequent registration requirements.
However, in terms of equal protection analysis, Harris’ travel
profile makes the classification more compelling. Measured
against Harris’ facts, the classification is rationally related to
SORA’s purpose.
We conclude that Harris has not met his burden to show that
§ 29-4004(9) violates equal protection standards. The district
court did not err when it rejected Harris’ equal protection chal-
lenge to the statute.
CONCLUSION
We conclude that the district court did not err when it
rejected 	the 	constitutional 	challenges 	that 	were 	properly
raised by Harris in this criminal proceeding that implicated
§§ 	29-4004(9) 	and 	29-4011. 	We 	therefore 	affirm 	Harris’
Class IV felony conviction under § 29-4011(1) based on his
failure to comply with § 29-4004(9) of SORA.
affirMed.
StepHaN, J., participating on briefs.
State of NebraSka, appellee, v.
tiMotHy gaSkill, appellaNt.
817 N.W.2d 754
Filed July 27, 2012. 	No. S-11-528.
1. Constitutional Law: Statutes: Judgments: Appeal and Error. The constitu-
tionality and construction of a statute are questions of law, regarding which an
appellate court is obligated to reach conclusions independent of those reached by
the court below.
2. Constitutional Law: Statutes: Presumptions. A statute is presumed to be con-
stitutional, and all reasonable doubts are resolved in favor of its constitutionality.
Appeal from the District Court for Lancaster County: robert
r. otte, Judge. Affirmed.