U.S. District Judge Irene Berger
CHARLESTON – A federal judge has dismissed a challenge to West Virginia’s $125 annual fee for people listed on the state’s sex offender registry.
In a May 4 opinion and order, U.S. District Judge Irene Berger granted the motion to dismiss filed by West Virginia State Police Superintendent James L. Mitchell. She found the plaintiffs did not plausibly allege the charge is an excessive fine or an irrational wealth‑based penalty on indigent offenders.
The class action has been filed last year by Philip Kaso, Stephen Basham and Roderick Patton. All three are lifetime registrants under the West Virginia Sex Offense Registration Act and had sought to block enforcement of the 2025 statute requiring registrants to pay the $125 annual “registry fee” or face judgment liens on their property.
Berger’s ruling also terminates the plaintiffs’ motion for a preliminary injunction and dismisses the case without prejudice.
“The registry fee imposes an annual charge on all sex offenders who are required to register under West Virginia law,” Berger wrote. “Failure to pay does not constitute violation of the registration requirements, nor does it incur any criminal penalty.”
Kaso, Basham and Patton sued on behalf of a proposed class of all individuals required to register as sex offenders in West Virginia, arguing the annual fee violates the Eighth Amendment’s Excessive Fines Clause and the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
State law directs the money collected “enhance mental health services for current and former employees of the West Virginia State Police,” with any remainder available “for any other use essential to the general operations of the State Police” rather than to fund operation of the registry itself.
The complaint emphasized West Virginia does not provide individualized risk assessments or any mechanism for deregistration based on post‑offense conduct, and the flat fee applies regardless of ability to pay, with nonpayment automatically triggering a judgment lien.
Basham, one of the named plaintiffs, is disabled, indigent and dependent on public benefit programs, which he says illustrates the fee’s impact on people with no realistic ability to pay. They asked the court to certify a class, declare the fee unconstitutional, enjoin its enforcement and award attorney fees and costs.
On the Eighth Amendment claim, Berger assumed for purposes of the motion that the registry charge could potentially be treated as a punitive “fine” despite the Legislature’s statement the Sex Offender Registration Act is “regulatory in nature and not penal.”
She noted the fee shares some features of a sanction: it is imposed only on people with qualifying sex offense convictions and is earmarked for State Police mental health services rather than the administrative costs of the registry.
However, she concluded the plaintiffs’ challenge failed at the second step of the excessive‑fines analysis because the complaint did not allege facts showing the fee is “grossly disproportionate” to the gravity of the underlying offenses.
“The court cannot find that the $125 annual fee is grossly disproportionate to even the least culpable of sex offenders, and even to those who may be required to pay it every year for several decades with lifetime registration,” she wrote, citing a Seventh Circuit decision upholding a comparable $100 annual registration fee.
Berger rejected the state’s argument the claim failed simply because the plaintiffs did not use the words “grossly disproportionate” in their pleading, but found that describing the amount of the fee and the seriousness of the offenses, without more, was insufficient to plausibly establish an excessive‑fines violation.
Turning to the equal protection and due process claims, Berger framed the question under the Supreme Court’s line of cases dealing with indigent litigants and criminal defendants who cannot afford fees or fines.
She contrasted decisions invalidating practices that effectively barred poor defendants from appeals, divorces or parental rights proceedings with cases upholding routine fee requirements subject only to rational‑basis review. Because the registry charge results only in a civil judgment lien and does not itself lead to criminal penalties or loss of a fundamental right, Berger said the plaintiffs were not entitled to heightened scrutiny.
Under rational‑basis review, Berger found the Legislature could reasonably have concluded imposing a uniform $125 annual charge on all registrants was an acceptable way to help defray registry‑related costs and fund mental health services for State Police personnel. She noted the statute does not expressly distinguish between indigent and non‑indigent registrants, and lawmakers are not obligated to create an indigency exception or individualized hearing process before imposing a civil fee.
“Ultimately, the Fourteenth Amendment claim(s) rest on the premise that the Constitution requires an indigency exception for governmental fees or monetary charges,” she wrote. “The Plaintiffs have cited no authority for that proposition.”
Because the fee is imposed automatically on all registrants and the entry of a lien does not depend on any factual dispute, Berger also rejected the plaintiffs’ procedural due process theory the state must provide a hearing or mechanism to contest application of the charge.
U.S. District Court for the Southern District of West Virginia case number 2:25-cv-00603
