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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 45285

STATE OF IDAHO,

Plaintiff-Respondent,

v.

DAVID CHARLES GLODOWSKI,

Defendant-Appellant.

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Filed: April 16, 2019

Karel A. Lehrman, Clerk

SUBSTITUTE OPINION

THE COURT’S PRIOR OPINION

DATED MARCH 6, 2019, IS

HEREBY WITHDRAWN

Appeal from the District Court of the First Judicial District, State of Idaho, 

Kootenai County. Hon. Scott Wayman, District Judge. 

Appeal from judgment of conviction for failing to update sex offender 

registration, affirmed.

Eric D. Fredericksen, State Appellate Public Defender; Andrea W. Reynolds, 

Deputy Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Russell J. Spencer, Deputy 

Attorney General, Boise, for respondent. 

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BRAILSFORD, Judge

David Charles Glodowski appeals from his judgment of conviction for failing to update 

his sex offender registration, a violation of Idaho Code § 18-8309. For the reasons set forth 

below, we affirm the judgment of conviction.

I.

FACTUAL AND PROCEDURAL BACKGROUND

While living in Wisconsin, Glodowski pled guilty to third degree sexual assault, a 

violation of Wis. Stat. Ann. § 940.225(3) (Wisconsin conviction). As a result, Glodowski was 

required to register in Wisconsin as a sex offender. In 2014, Glodowski relocated to Idaho. The 

Bureau of Criminal Identification (bureau), a division of the Idaho State Police (ISP), reviewed 

Glodowski’s prior Wisconsin conviction to determine whether Glodowski must register as a sex 
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offender under the Idaho Sexual Offender Registration Notification and Community Right-toKnow Act (SORA), I.C. §§ 18-8301 to -8331.

In July 2014, the bureau issued an “Agency’s Findings of Fact, Conclusions of Law, and 

Final Order Regarding Sex Offender Registration” (final order). In this final order, the bureau

found Glodowski’s victim was fourteen years old and concluded that Glodowski’s Wisconsin 

conviction is substantially equivalent to a violation of I.C. § 18-1508, prohibiting lewd conduct 

with a minor child. Further, the bureau concluded that Glodowski’s Wisconsin conviction 

equated to an aggravated offense under I.C. § 18-8303(1) and that Glodowski is required to 

register in Idaho for life. A certificate of service accompanied the bureau’s final order showing 

service on Glodowski by mail on the same day the final order was issued.

The final order informed Glodowski that he could file a motion for reconsideration within 

fourteen days of service or appeal to the district court within twenty-eight days. There is no 

record that Glodowski ever sought reconsideration or appealed the final order. Instead, 

Glodowski registered in Idaho as a sex offender.

After registering, Glodowski was repeatedly warned about his failures to comply with the 

registration rules. When Glodowski failed to return his quarterly address verification form, it 

was discovered in May 2016 that he had moved without providing notice of his new address. As 

a result, the State charged Glodowski with a violation of I.C. § 18-8309 for failing to update his 

registration information.

Before trial, the State filed a motion in limine to obtain a pretrial ruling that Glodowski’s 

Wisconsin conviction is substantially equivalent to I.C. § 18-1508 and also to I.C. § 18-6101, 

defining rape. The day before Glodowski’s trial in April 2017, the district court held a 

telephonic hearing during which it ruled that, as a matter of law, Glodowski’s Wisconsin 

conviction is substantially equivalent to both I.C. §§ 18-1508 and 18-6101. The district court 

also entered a written order stating the same ruling.

The case then proceeded to trial, and the district court instructed the jury that a violation

of Wis. Stat. Ann. § 940.225(3) is substantially equivalent to a violation of I.C. §§ 18-6101 or

18-1508. The jury found Glodowski guilty for failing to update his sex offender registration. 
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Glodowski timely appeals. He challenges only the district court’s ruling that his Wisconsin 

conviction and I.C. § 18-1508 are substantially equivalent.1

II.

STANDARD OF REVIEW

Neither Glodowski nor the State has raised a question of subject matter jurisdiction. 

Regardless, if there is a jurisdictional defect, this Court has both the authority and the obligation 

to address the issue, even if the parties failed to raise it. State v. Lute, 150 Idaho 837, 840, 252 

P.3d 1255, 1258 (2011); State v. Kavajecz, 139 Idaho 482, 483, 80 P.3d 1083, 1084 (2003). A 

question of jurisdiction is fundamental, cannot be ignored, and should be addressed before 

considering the appeal’s merits. Kavajecz, 139 Idaho at 483, 80 P.3d at 1084. The question of 

jurisdiction is a question of law over which this Court exercises free review. Id.; see also In re 

Johnson, 153 Idaho 246, 250, 280 P.3d 749, 753 (Ct. App. 2012).

III.

ANALYSIS

We conclude that the district court lacked authority, and thus it lacked jurisdiction, to 

review and redetermine whether Glodowski’s Wisconsin conviction is substantially equivalent to 

an offense in Idaho. Such a determination is exclusively within the ISP’s authority. SORA 

applies to “any person who . . . has been convicted of any crime . . . in another jurisdiction . . . 

that is substantially equivalent to the offenses listed in [I.C. § 18-8304(1)(a), which includes I.C. 

§§ 18-1508 and 18-6101] and enters this state to establish residence . . . .” I.C. § 18-8304(b). 

The Idaho Legislature delegated to the ISP the authority to promulgate rules to implement

SORA. I.C. § 18-8304(4); Doe v. State, 158 Idaho 778, 782, 352 P.3d 500, 504 (2015). In turn, 

the ISP delegated its authority to the bureau “to issue final orders on [its] behalf in instances 

where the bureau determines an offender’s registration requirement based upon a conviction of a 

substantially similar or substantially equivalent crime.” IDAPA 11.10.03.003.02. The ISP 

regulations clearly provide that “the bureau shall determine if a person’s out-of-jurisdiction 

conviction is substantially equivalent or similar to an Idaho sex related offense . . . for the 

purposes of requiring a person to register in Idaho.” IDAPA 11.10.03.012.08.b. 

 

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In his opening brief, Glodowski also argued that the district court erred when instructing 

the jury. On reply, however, he concedes the invited error doctrine bars this challenge. 
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If an alleged sex offender disagrees with the bureau’s final order determining the 

substantial equivalency of an out-of-jurisdiction conviction with an Idaho sex offense, his 

recourse is to timely appeal that order to the district court. The Idaho Constitution limits the 

district courts’ appellate jurisdiction providing that: “The district court shall have original 

jurisdiction in all cases, both at law and in equity, and such appellate jurisdiction as may be 

conferred by law.” IDAHO CONST. art. V, § 20. Review of an agency action is an appellate 

function, and “[a]ctions by state agencies are not subject to judicial review unless expressly 

authorized by statute.” Johnson, 153 Idaho at 250, 280 P.3d at 753. Without an enabling statute, 

the district court lacks subject matter jurisdiction to review an agency action. See, e.g., Cobbley 

v. City of Challis, 143 Idaho 130, 133, 139 P.3d 732, 735 (2006) (“Judicial review of an 

administrative decision is wholly statutory; there is no right of judicial review absent the 

statutory grant.”).

The Idaho Administrative Procedure Act (APA), I.C. §§ 67-5201 to 5292, is the enabling 

act permitting the district court’s review of the bureau’s final order, and the provisions of the 

APA constrain that review. The ISP’s regulations provide that “the bureau’s determination is a 

declaratory ruling as defined by [the APA]” and that “judicial review of the bureau’s 

determination shall be in accordance with [the APA].” IDAPA 11.10.03.012.08.f., 08.g. Idaho 

Code § 67-5270(3) allows a petition for review of a final order if the petitioner “complies with 

the requirements of sections 67-5271 through 67-5279, Idaho Code.” Importantly, the APA 

limits the timeframe for an appeal of the bureau’s final order. As stated in the bureau’s final 

order, a petition for review must be filed within twenty-eight days of the final order’s service 

date, within twenty-eight days of an order denying reconsideration, or within twenty-one days of 

the agency’s failure to act on a petition for reconsideration, whichever occurs later. I.C. §§ 67-

5273(2), 67-5246(4). The timely filing of the petition for judicial review within this provision is 

jurisdictional. Knox v. State, 162 Idaho 729, 731, 404 P.3d 1280, 1282 (Ct. App. 2017); see also 

Johnson, 153 Idaho at 250, 280 P.3d at 753 (“The failure to file a timely petition for judicial 

review is jurisdictional . . . .”).

Pursuant to the ISP’s delegation of authority to implement SORA, the bureau issued its 

final order on July 1, 2014, determining Glodowski’s Wisconsin conviction is substantially 

equivalent to an offense under I.C. § 18-1508. Accordingly, any timely appeal of that final order 

to the district court would have likely had to occur in 2014. See I.C. § 67-5246(4) (requiring 
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petition for reconsideration within fourteen days of final order); I.C. § 67-5273(2) (requiring 

appeal to district court within twenty-eight days). Whether any such appeal ever occurred is 

unclear from the record. What is clear, however, is that Glodowski did in fact register in Idaho 

as a sex offender, including in January 2016. The fact that he registered more than eighteen 

months after the bureau issued its final order necessarily indicates that Glodowski either never 

challenged the bureau’s final order or, at most, unsuccessfully challenged it. 

Regardless, the bureau’s final order is conclusive as to the determination that 

Glodowski’s Wisconsin conviction is substantially equivalent to a violation of I.C. § 18-1508. 

C.f. Cobbley, 143 Idaho at 134, 139 P.3d at 736 (“[I]f the exclusive and otherwise unavailable 

method is set forth in the provided-for judicial review procedures, one cannot challenge in a 

separate civil suit the action of a board where that board has acted on matters within its 

jurisdiction.”). Glodowski did not timely challenge the bureau’s determination under the APA, 

and he cannot now collaterally attack that determination. See id. The district court lacked 

authority, and thus it lacked jurisdiction, to review and redetermine whether Glodowski’s 

Wisconsin conviction is substantially equivalent to any Idaho offense.

While the district court did not address the question of its jurisdiction, it did rely upon 

Doe, 158 Idaho at 780, 352 P.3d at 502, to guide its substantial equivalency analysis. We note 

that the appeal in Doe arose in a different manner than under the APA as outlined above. Our 

decision in this case, however, is not inconsistent with Doe, which is distinguishable. In that 

case, Doe was a registered sex offender who resided in Washington but was contemplating a 

move to Idaho. Id. at 779, 352 P.3d at 501. Before moving to Idaho, Doe sought a 

determination of whether his Washington conviction was substantially equivalent to an Idaho 

offense, thereby requiring him to register in Idaho. Id. at 780, 352 P.3d at 502. After being 

notified by the ISP’s legal counsel that he would have to register in Idaho, Doe filed a petition in 

district court for declaratory judgment under I.C. § 10-1202 regarding whether his Washington 

conviction was substantially equivalent to an Idaho offense. Doe, 158 Idaho at 780, 352 P.3d at 

502. The district court dismissed the petition, concluding Doe lacked standing because he did 

not live in Idaho, was not yet required to register in Idaho, and had not been threatened with 

prosecution for failing to register in Idaho. Id. at 781, 352 P.3d at 503. 

The Supreme Court in Doe reversed. Id. at 784, 352 P.3d at 506. It reasoned that a 

declaratory judgment is permissible to determine the applicability of an agency rule, as 
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distinguished from a review of an agency’s final order as in this case. Id. at 782, 352 P.3d at 

504. Additionally, the Court reasoned that the ISP did not have a process for providing an 

advisory ruling for a nonresident and that this inadequate remedy was an exception to the 

requirement that Doe must exhaust his administrative remedies. Id. Neither of these reasons, 

however, provides the district court in this case with jurisdiction to redetermine whether 

Glodowski’s Washington conviction is substantially equivalent to an Idaho sex-related offense. 

Unlike Doe, Glodowski lives in Idaho, is required to register in Idaho pursuant to the bureau’s 

final order, and was charged with failing to maintain his registration.

IV.

CONCLUSION

The bureau’s final order concluding that Glodowski’s Wisconsin conviction was 

substantially equivalent to an Idaho sexual offense and that Glodowski is required to register in 

Idaho as a sex offender is final. The district court lacked authority, and thus it lacked 

jurisdiction, to review and redetermine the issue of whether Glodowski is required to register in 

Idaho. Regardless, the district court correctly instructed the jury that Glodowski is required to 

register as a sex offender in Idaho, as the bureau’s final order requires. Therefore, we affirm the 

judgment of conviction.

Judge HUSKEY and Judge LORELLO CONCUR.