CHARLESTON – A class action lawsuit says an annual $125 fee required by the state for individuals on the West Virginia Sex Offense Registry is unconstitutional.
The complaint, filed October 14 in federal court, says the fee violates the Eighth Amendment of the U.S. Constitution by requiring a punitive fine. Failure to pay the fee will result in a property lien against the registrant.
The plaintiffs in the case are anyone who is listed on the state registry under the West Virginia Sex Offense Registration Act. The named plaintiffs are Philip Kaso, Stephen Basham and Roderick Patton. Colonel James L. Mitchell, as Superintendent of the West Virginia State Police, is the defendant because the WVSP is the state agency responsible for enforcing the act and statute.
“Plaintiffs allege that the statute fails to make provisions for undue financial hardship and indigency that the inability to pay the fee violates due process and the Equal Protection Clause of the Fourteenth Amendment,” the complaint states. “Plaintiffs seek injunctive and declaratory relief to redress the violation of their clearly established constitutional rights.”
According to the statute, persons required to register on the sex offense registry must pay the $125 annual fee between January 1 and June 30 each year to the circuit clerk of the circuit court where he or she currently resides. The registrant must provide written proof of payment of the annual fee within 10 days of payment to the State Police detachment monitoring him or her.
The statute says the State Police is authorized to use the funds collected first to enhance mental health services for current and former State Police employees. After that, the funds can be used for “any other use essential to the general operations of the State Police.”
Failure to pay the fee is not considered a violation of the person’s supervised release, but the property lien can be filed.
“The fee so implemented is a punitive fine,” the complaint states. “None of the fees collected are earmarked to provide for any implementation of registration scheme by a plain reading of the statute.
“Instead, fees go to defray other expenses and is primarily intended to produce additional revenues for the West Virginia State Police. … No fee will be used to defray the costs associated with sex offender notification, registration, verification or compliance.”
Unlike all other states under the U.S. Fourth Circuit Court of Appeals, the plaintiffs also say the West Virginia Sex Offense Registration Act provides no means for risk analysis of individual registrants, tiering, provisions for deregistration or any other meaningful individual assessment.
“Plaintiffs receive no benefit for the fee they are required to pay,” the complaint states. “WV SORA relies entirely on the statutory conviction code for registration requirements, and most registrants are required to register for life.”
The proposed class could include about 6,450 individuals currently on the registry, according to the complaint.
In addition to class certification, the plaintiffs seek a declaratory judgment saying the provision of the law is unconstitutional and an injunction prohibiting the defendant from continuing to enforce it. They also seek attorney fees, court costs and other relief.
The plaintiffs are being represented by Lawrence King with the National Association for Rational Sexual Offense Laws in Raleigh, N.C., as well as by Lonnie C. Simmons of DiPiero Simmons McGinley & Bastress in Charleston.
U.S. District Court for the Southern District of West Virginia case number 2:25-cv-603
