John Doe I v. Robert Williams , 61 A.3d 718 ( 2013 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 24
Docket: Ken-11-454
Argued: September 13, 2012
Decided: March 5, 2013
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and
JABAR, JJ.
Majority: SAUFLEY, C.J., and LEVY, MEAD, and GORMAN, JJ.
Dissent: ALEXANDER, SILVER, and JABAR, JJ.
JOHN DOE I et al.
v.
ROBERT WILLIAMS et al.
MEAD, J.
[¶1] John Does I, III, IV, V, VI, VII, VIII, X, XIII, XVI, XVIII, XXIV, and
XLIII, joined by John Does XIX1 and XXIII, appeal from a summary judgment
entered in the Superior Court (Kennebec County, Murphy, J.) in favor of numerous
State officials on the parties’ cross-motions for summary judgment. The Does
challenge the constitutionality of Maine’s Sex Offender Registration and
Notification Act of 1999 (SORNA of 1999), 34-A M.R.S. §§ 11201-11256 (2012).
We affirm the trial court’s judgment, concluding that SORNA of 1999 as amended
1
John Doe XIX was originally John Doe XVIII, but the trial court changed his pseudonym because it
was already assigned to another John Doe.
2
following our decision in State v. Letalien, 2009 ME 130, 985 A.2d 4, does not
violate the constitutional rights of the litigants before us.
I. BACKGROUND2
[¶2] John Doe I was previously before us in Doe v. District Attorney,
2007 ME 139, 932 A.2d 552. John Doe I pleaded guilty to and was convicted of
unlawful sexual contact with a family member, id. ¶ 2, and in 1985 was sentenced
to five years’ imprisonment with all but sixty days suspended and two years’
probation. He has not been convicted of any sex offenses since.
[¶3] In 2005, the Legislature amended SORNA of 1999 to apply
retroactively to all sex offenders sentenced on or after January 1, 1982. P.L. 2005,
ch. 423, § 1 (effective Sept. 17, 2005) (codified at 34-A M.R.S. § 11202(1)
(2012)); see Doe, 2007 ME 139, ¶ 14, 932 A.2d 552. John Doe I sued several
State officials in their official capacities, arguing that the retroactive application of
SORNA of 1999 violated his rights to procedural and substantive due process,
equal protection, and a civil jury trial, pursuant to the Maine and United States
Constitutions. Doe, 2007 ME 139, ¶ 5, 932 A.2d 552. Upon the State officials’
motion to dismiss, the Superior Court (Kennebec County, Studstrup, J.) dismissed
2
Doe v. District Attorney, 2007 ME 139, ¶¶ 10-19, 932 A.2d 552, and State v. Letalien,
2009 ME 130, ¶¶ 4-12, 985 A.2d 4, provide a detailed history of sex offender laws in Maine. The
background we provide here focuses on the factual and procedural history of the litigants and the
amendments to SORNA of 1999 after Letalien.
3
John Doe I’s complaint for failure to state a claim upon which relief could be
granted. Id. ¶ 1. John Doe I appealed, and we concluded that (1) further factual
development was required to determine whether SORNA of 1999 was an
unconstitutional ex post facto law3 as applied to him,4 and (2) he should not have
been foreclosed from pursuing his other theories of relief. Id. ¶¶ 1, 36-37. We
then remanded the case to the trial court for further proceedings on those issues.
Id. ¶ 37. On remand, John Doe I’s case was consolidated with cases brought by
other convicted sex offenders who were also challenging the retroactive
application of SORNA of 1999.
[¶4] In 2009, the Legislature created an exception from the duty to register
for sex offenders meeting certain criteria who were sentenced on or after
January 1, 1982, and before June 30, 1992. P.L. 2009, ch. 365, § B-3 (effective
Sept. 12, 2009) (codified at 34-A M.R.S. § 11202-A(1) (2009)).5 Sex offenders
fall within the exception if, among other criteria, their underlying convictions did
not include more than one Class A sex offense or sexually violent offense, they had
3
Although John Doe I did not assert an ex post facto violation, the Superior Court treated his
procedural due process claim as an ex post facto claim. Doe, 2007 ME 139, ¶¶ 1, 8, 932 A.2d 552.
4
We later held in Letalien that “[f]or ex post facto purposes, SORNA of 1999 is properly evaluated
on its face” rather than by examining its application to any given individual. 2009 ME 130, ¶ 34,
985 A.2d 4.
5
Title 34-A M.R.S. § 11202-A (2009) was amended after Letalien, 2009 ME 130, 985 A.2d 4, and
will be discussed in detail later in this opinion. See P.L. 2009, ch. 570 (effective Mar. 30, 2010) (codified
at 34-A M.R.S. §§ 11202-A, 11222, 11225-A (2012)).
4
no prior sex offense convictions, and they had no subsequent convictions for
crimes punishable by imprisonment of one year or more. 34-A M.R.S.
§ 11202-A(1)(A)-(F). Because of the newly enacted exception, many of the John
Does became eligible for relief from the duty to register and withdrew from the
litigation. Some Does who were eligible for relief, however, chose to continue
with the litigation along with the Does who were ineligible for relief.
[¶5] We decided Letalien shortly after 34-A M.R.S. § 11202-A(1) became
effective. Pursuant to the Sex Offender Registration Act of 1995, Letalien’s
sentence included a requirement that he register for fifteen years on the State’s sex
offender registry; the sentence provided that after five years Letalien could seek a
waiver “upon a finding that [he] ‘ha[d] shown a reasonable likelihood that
registration is no longer necessary and waiver of the registration requirement is
appropriate.’” Letalien, 2009 ME 130, ¶ 5, 985 A.2d 4 (quoting 34-A M.R.S.A
§ 11121(6)(C) (Supp. 1996)). While Letalien was on probation, the Legislature
enacted SORNA of 1999, which required him to register for life, prevented him
from seeking a waiver, and established additional reporting requirements. Id.
¶¶ 6-8 (citing P.L. 1999, ch. 437, § 2 (effective Sept. 18, 1999) (codified at
34-A M.R.S.A. §§ 11201-11252 (Pamph. 1999))). Letalien challenged SORNA of
1999 as unconstitutional under the Ex Post Facto Clauses of the United States and
Maine Constitutions. Id. ¶ 1. We concluded that SORNA of 1999 “impose[d] an
5
ex post facto punishment as to offenders sentenced in the years before the effective
date of [the statute] for whom registration was a required part of their sentence and
who were subsequently made subject to the more burdensome requirements.” Id.
[¶6] In response to the Letalien decision, the Legislature amended SORNA
of 1999 by enacting P.L. 2009, ch. 570 (effective Mar. 30, 2010) (codified at
34-A M.R.S. §§ 11202-A, 11222, 11225-A (2012)). The amendments extended
the exception from registration provided by P.L. 2009, ch. 365, § B-3, making it
available to qualifying offenders sentenced through September 18, 1999, the
effective date of SORNA of 1999.6 See P.L. 2004, ch. 570, § 1. The amendments
also changed the reporting requirements for offenders’ registration information,
such as residence and place of employment. P.L. 2004, ch. 570, § 4. Ten-year
registrants are now subject to annual verification in writing and in-person
verification once every five years. 34-A M.R.S. § 11222(4-A). Lifetime
registrants are now subject to quarterly verification in writing and in-person
verification once every five years. Id. § 11222(4-B). Additionally, if a law
enforcement agency with jurisdiction over a registrant or the State Bureau of
Identification has “reason to believe the [registrant’s] appearance has changed
6
None of the Does were removed from the registry as a result of the latest amendments in P.L. 2009,
ch. 570 (effective Mar. 30, 2010) (codified at 34-A M.R.S. §§ 11202-A, 11222, 11225-A). Instead, they
were removed as a result of the enactment of P.L. 2009, ch. 365, § B-3 (effective Sept. 12, 2009)
(codified at 34-A M.R.S. § 11202-A(1) (2009)), which allowed Does meeting certain criteria to be
removed from the registry if they were convicted between January 1, 1982 and September 18, 1999.
6
significantly,” the agency or Bureau may instruct the registrant to appear in person
with a current photograph or to allow a new photograph to be taken, or may
instruct the registrant to submit a new photograph without appearing in person. Id.
§ 11222(4-A)(C)(1)-(2), (4-B)(C)(1)-(2).
[¶7] John Does I, IV, V,7 VI, VIII, and XVI were initially required to
register, but successfully petitioned to be removed. John Doe XXIV was also
required to register, but he obtained a temporary restraining order preventing his
information from being publically posted; he later successfully petitioned for
removal from the registry. John Does VII, XIII, and XVIII obtained temporary
restraining orders relieving them from registering, and they were also statutorily
relieved of the registration requirement. John Does III, X, XIX, XXIII, and XLIII8
remain on the registry and have viable claims.
[¶8] The Does and State defendants filed cross-motions for summary
judgment. The trial court issued its decision on the cross-motions on
August 18, 2011, denying the Does’ motion on all of their claims, and granting the
State defendants’ motion for summary judgment. The court concluded that the
7
John Doe V was removed from the registry after the parties submitted their briefs, but prior to oral
argument.
8
John Doe XLIII is not currently on the registry because he obtained a temporary restraining order,
but he is ineligible to be relieved from the registration requirement because he does not meet the
requirements of 34-A M.R.S. § 11202-A(1)(C).
7
cases of the Does who successfully petitioned to be relieved from the duty to
register were moot, and that SORNA of 1999 as amended after Letalien was
constitutional. The court also denied the Does’ motion for attorney fees.
[¶9] The Does make numerous claims on appeal, namely that (A) the claims
of the John Does who are no longer required to register as sex offenders are not
moot; (B) SORNA of 1999 is an unconstitutional ex post facto law; (C) SORNA of
1999 violates article I, section 1 of the Maine Constitution; (D) SORNA of 1999
violates their procedural due process rights; (E) SORNA of 1999 violates their
substantive due process rights; (F) SORNA of 1999 violates the Equal Protection
Clauses of the Maine and United States Constitutions; (G) SORNA of 1999
violates the Maine Civil Rights Act (MCRA), 5 M.R.S. §§ 4681-4685 (2012);
(H) SORNA of 1999 violates 42 U.S.C.S. § 1983 (Lexis 2012); (I) summary
judgment was improperly granted; and (J) they are entitled to an award of attorney
fees.
II. STANDARD OF REVIEW
[¶10] This case comes before us on a grant of summary judgment in favor
of the State defendants, which we review de novo and will affirm “if the record
reflects that there is no genuine issue of material fact and the movant is entitled to
a judgment as a matter of law.” Levesque v. Androscoggin Cnty., 2012 ME 114,
¶ 5, 56 A.3d 1227 (quotation marks omitted). Because we find that there are no
8
genuine issues of material facts in dispute, we evaluate whether the State
defendants are entitled to a judgment as a matter of law. Summary judgment is
properly granted when “the plaintiff fails to establish a prima facie case for each
element of [his] cause of action.” Id. (quotation marks omitted).
[¶11] The Does’ arguments based on procedural and substantive due
process, equal protection, and the Ex Post Facto Clause challenge the
constitutionality of SORNA of 1999. Accordingly, the Does have “the burden of
establishing [the statute’s] infirmity.” See Letalien, 2009 ME 130, ¶ 15,
985 A.2d 4 (quotation marks omitted). We review challenges to the validity of
statutes de novo. Id. We presume that the statute is constitutional, id., and must
“avoid an unconstitutional construction of a statute if a reasonable interpretation of
the statute would satisfy constitutional requirements,” Bagley v. Raymond Sch.
Dep’t, 1999 ME 60, ¶ 14, 728 A.2d 127 (quotation marks omitted).
III. DISCUSSION
[¶12] We consider the Does’ challenges in the order the Does argue them.
A. Justiciability
[¶13] The Superior Court determined that the claims of the Does who had
been removed from the registry are moot because the court could not provide them
any real or effective relief. These Does argue that their claims are not moot
because (1) they will be subject to the registry if they commit future crimes or
9
move to a different state, (2) their claims fit within the exceptions to the mootness
doctrine, and (3) the court can retain jurisdiction in order to award costs and
attorney fees.
1. Technical Mootness
[¶14] We review de novo the trial court’s determination of mootness.
McGettigan v. Town of Freeport, 2012 ME 28, ¶ 10, 39 A.3d 48. “An issue is
moot when there is no real and substantial controversy, admitting of specific relief
through a judgment of conclusive character.” Id. (quotation marks omitted). In
analyzing whether a case is moot, “we examine whether there remain sufficient
practical effects flowing from the resolution of the litigation to justify the
application of limited judicial resources.” Id. (quotation marks omitted).
[¶15] The Does’ first argument, that their future conduct may subject them
to registration in the future, is insufficient to constitute a “real and substantial
controversy.” See id. For a controversy to be justiciable it must declare rights
“upon the existing state of facts and not upon a state of facts that may or may not
arise in the future.” See Madore v. Me. Land Use Regulation Comm’n,
1998 ME 178, ¶ 7, 715 A.2d 157 (quotation marks omitted). Here, the Does have
alleged only facts that may or may not occur in the future, and thus their claims are
moot.
10
[¶16] Additionally, the Does have been relieved of the duty to register, the
crux of the litigation. See, e.g., Bennett v. State, 289 A.2d 28, 28, 32 (Me. 1972)
(holding that the expiration of defendant’s sentence rendered his habeas corpus
petition moot); State v. Irish, 551 A.2d 860, 861-62 (Me. 1988) (holding that the
defendant’s constitutional challenge to the revocation of his intensive supervision
was moot because he had been released from institutional confinement).
[¶17] Further, because we conclude that the Does are not entitled to an
award of their fees and costs, there is no need for the trial court to retain
jurisdiction over their claim.
[¶18] For these reasons, the claims of Does I, IV, V, VI, VII, VIII, XIII,
XVI, XVIII, and XXIV, who have been removed from the registry, no longer have
controversial vitality and are therefore moot unless an exception applies.
2. Exceptions to Mootness
[¶19] The Does’ claims also do not fit within the exceptions to the mootness
doctrine. We will consider an appeal that is otherwise moot if the appellant can
show that
(1) sufficient collateral consequences will result from the
determination of the questions presented so as to justify relief; (2) the
appeal contains questions of great public concern that, in the interest
of providing future guidance to the bar and the public, we may
address; or (3) the issues are capable of repetition but evade review
because of their fleeting or determinate nature.
11
Anthem Health Plans of Me., Inc. v. Superintendent of Ins., 2011 ME 48, ¶ 8,
18 A.3d 824 (quotation marks omitted).
[¶20] Here, the collateral consequences exception is unavailable. The Does
argue that their registration status may be affected if they commit another crime or
move to another state. The collateral consequences exception will not apply if the
appellant fails to “demonstrate that a decision on the merits of the appeal will have
more than conjectural and insubstantial consequences in the future.” Sordyl v.
Sordyl, 1997 ME 87, ¶ 6, 692 A.2d 1386 (quotation marks omitted). These
consequences to the Does’ registration status that may or may not transpire in the
future and which are entirely dependent on the Does’ own actions do not fall under
the collateral consequences exception. Additionally, the Does’ argument that their
claims may have a potential impact on federal funding of Maine law enforcement
is too tenuous and uncertain to be a collateral consequence.
[¶21] The two remaining exceptions to mootness, for issues of great public
concern and issues capable of repetition, are also unavailable to the Does who have
been removed from the registry. Although it is true that the application of SORNA
of 1999 is an issue of great public concern that is capable of repetition, the issue
will not evade review because the cases of Does III, X, XIX, XXIII, and XLIII,
who remain on the registry, are decided today. Therefore, the claims of the Does
who had been removed from the registry are moot.
12
B. Ex Post Facto Analysis
[¶22] The remaining Does argue that SORNA of 1999 as amended after
Letalien is an unconstitutional ex post facto law. The trial court concluded that the
Does failed to establish by the clearest proof that SORNA of 1999 is punitive.
[¶23] Both the United States and Maine Constitutions prohibit the
enactment of ex post facto laws. U.S. Const. art. I, § 10, cl. 1 (“No State shall . . .
pass any . . . ex post facto Law . . . .”); Me. Const. art. I, § 11 (“The Legislature
shall pass no . . . ex post facto law . . . .”). We have explained that the
Ex Post Facto Clauses of the two constitutions “are interpreted similarly and are
coextensive.” Letalien, 2009 ME 130, ¶ 25, 985 A.2d 4. A statute violates the
Ex Post Facto Clauses if it “makes more burdensome the punishment for a crime
after it has been committed.” Id.
[¶24] In making that determination, we employ the two-step “intent-effects
test,” in which we first analyze the Legislature’s intent in enacting the statute. See
Smith v. Doe, 538 U.S. 84, 92 (2003); Letalien, 2009 ME 130, ¶ 29, 985 A.2d 4. If
we determine that the intent of the statute is civil in nature, we then analyze the
statute’s effects to determine whether the effects are so punitive that they
overcome the Legislature’s civil intent. Smith v. Doe, 538 U.S. 84, 92 (2003);
Letalien, 2009 ME 130, ¶ 29, 985 A.2d 4. We have already concluded that
“SORNA was intended to be a civil, regulatory statute” under the intent aspect of
13
the analysis. Letalien, 2009 ME 130, ¶ 29, 985 A.2d 4. Therefore, our focus is on
the second step of the inquiry—assessing the statute’s effects to determine if they
are punitive. See id. ¶ 30.
[¶25] In analyzing the effects of SORNA of 1999, we consider the seven
factors we discussed in Letalien, commonly referred to as the Mendoza-Martinez
factors. Reformulated as questions, the seven factors are (1) does the sanction
involve an affirmative disability or restraint?, (2) has the sanction been historically
regarded as punishment?, (3) is the sanction imposed only upon a finding of
scienter?, (4) does the operation of the sanction promote retribution and
deterrence?, (5) is the behavior to which it applies already a crime?, (6) is there an
alternative purpose to which the sanction may rationally be connected?, and (7) is
the sanction excessive in relation to the alternative purpose?. See Letalien,
2009 ME 130, ¶ 31, 985 A.2d 4 (quoting Kennedy v. Mendoza-Martinez,
372 U.S. 144, 168-69 (1963)).
[¶26] In order for us to conclude that SORNA of 1999 is an unconstitutional
ex post facto law, the Does must, through the Mendoza-Martinez factors,
“demonstrate by the clearest proof that the statute is so punitive in purpose or
effect as to overcome the Legislature’s civil intent.” See State v. Cosgro,
2008 ME 64, ¶ 2, 945 A.2d 1221 (quotation marks omitted).
14
[¶27] Letalien is the point of departure for our analysis of the
constitutionality of SORNA of 1999 under the Ex Post Facto Clauses of the United
States and Maine Constitutions. In Letalien, we concluded that the statute
impose[d] an ex post facto punishment as to offenders sentenced in
the years before the effective date of SORNA of 1999 for whom
registration was a required part of their sentence and who were
subsequently made subject to the more burdensome requirements of
SORNA of 1999 after its effective date of September 18, 1999.
2009 ME 130, ¶ 1, 985 A.2d 4 (emphasis added).
[¶28] There are numerous factual distinctions between the plaintiff in
Letalien and Does III, X, XIX, XXIII, and XLIII who are before us today. Unlike
Letalien, who was required to register as a sex offender as part of his criminal
sentence, id. ¶ 5, there was no sex offender registration law at the time the Does
were originally sentenced, see Doe, 2007 ME 139, ¶¶ 10, 14, 932 A.2d 552. The
registration requirement of Letalien’s sentence included a waiver provision that
was eliminated in 2001. Letalien, 2009 ME 130, ¶ 8, 985 A.2d 4. In contrast, the
registration requirement originally imposed on the Does by SORNA of 1999 has
been alleviated by the enactment of 34-A M.R.S. § 11202-A, which allows sex
offenders to remove their names from the registry if they fall within the exceptions
created by the statute. Reporting requirements also differ. Letalien was required
to report in person to law enforcement officials every ninety days. Letalien,
2009 ME 130, ¶ 8, 985 A.2d 4. Pursuant to the current law, ten-year registrants are
15
only required to report annually in writing and in person every five years; lifetime
registrants are required to report quarterly in writing and in person every five
years.9 34-A M.R.S. § 11222(4-A), (4-B).
[¶29] Against that backdrop, we evaluate each of the seven
Mendoza-Martinez factors in turn.
1. Affirmative Disability or Restraint
[¶30] The first factor requires us to determine whether SORNA of 1999
imposes an affirmative disability or restraint. We consider “‘how the effects of the
[a]ct are felt by those subject to it. If the disability or restraint is minor and
indirect, its effects are unlikely to be punitive.’” Letalien, 2009 ME 130, ¶ 35,
985 A.2d 4 (alteration in original) (quoting Smith, 538 U.S. at 99-100).
[¶31] In Letalien we held that this factor weighed in favor of finding the
statute punitive because of the great burden associated with a registrant appearing
in person every ninety days and being subjected to fingerprinting, photographing,
and verification of residence and employment information. Id. ¶ 37. Since
Letalien, the burden imposed by the registration requirements of SORNA of 1999
has been significantly reduced. Now ten-year and lifetime registrants are required
9
In addition, registrants are required to report to law enforcement officials when they move or change
employment, and must update their registrations if they significantly change their appearance.
34-A M.R.S. § 11222(4-A), (4-B).
16
to appear in person every five years, which is no more onerous than renewing
one’s driver’s license. See 29-A M.R.S. § 1406(1) (2012) (requiring
noncommercial license renewal every six years and commercial license renewal
every five years). Similarly, the burden of reporting in writing annually for
ten-year registrants or quarterly for lifetime registrants is minimal when compared
to an in-person reporting requirement.
[¶32] The Does argue that it is punitive to require that registrants submit a
new photograph when a registrant’s appearance has changed significantly. The
Supreme Court analyzed a similar requirement in Smith, holding that the Alaska
statute imposed no affirmative disability or restraint because “[a]lthough
registrants must inform the authorities after they change their facial features (such
as growing a beard) . . . they are not required to seek permission to do so.”
538 U.S. at 101; see State v. Haskell, 2001 ME 154, ¶ 15, 784 A.2d 4 (finding no
affirmative disability or restraint because the “movements and activities [of the
registrants were] not restricted in any way”).
[¶33] We conclude that SORNA of 1999 imposes no significant restraint or
disability, and that therefore this factor weighs against finding the statute punitive.
2. Historically Regarded as Punishment
[¶34] The second factor we examine is whether the sex offender registry has
historically been regarded as punishment. The Does argue that the registry’s
17
availability on the Internet is punitive because of its stigmatizing effects. The
Supreme Court found that “[t]he purpose and the principal effect of notification are
to inform the public for its own safety, not to humiliate the offender. Widespread
public access is necessary for the efficacy of the scheme, and the attendant
humiliation is but a collateral consequence of a valid regulation.”
Smith, 538 U.S. at 99. In Letalien, we concluded that posting the registry on the
Internet was not punitive “for the reasons articulated by the Supreme Court in
Smith.” 2009 ME 130, ¶ 38, 985 A.2d 4.
[¶35] However, our analysis of this factor does not end there. “The unique
history of the development of sex offender registration laws in Maine is integral”
to our analysis of whether the retroactive application of SORNA of 1999 should be
regarded as punishment. See Letalien, 2009 ME 130, ¶ 39, 985 A.2d 4. The Sex
Offender Registration Act of 1991, the original sex offender registration law
enacted in Maine, and the Sex Offender Registration and Notification Act of 1995,
which affected Letalien, made registration an “integral part of the sentencing
process and, thus, the resulting sentence.” Id. ¶¶ 39, 42. SORNA of 1999, on the
other hand, is not tied to the sentencing process; this is the crucial distinction upon
which Letalien was based. See id. ¶¶ 1, 39, 60-61. We conclude that this factor
weighs against finding the statute punitive.
18
3. Scienter
[¶36] The third factor is whether the statute comes into play only on a
finding of scienter. Because SORNA of 1999 is not triggered on a finding of
scienter, this factor weighs against finding SORNA punitive. See id. ¶ 44; Haskell,
2001 ME 154, ¶ 17, 784 A.2d 4.
4. Promote Traditional Aims of Punishment
[¶37] The fourth factor requires us to determine whether SORNA of 1999
promotes the traditional aims of punishment, specifically, retribution and
deterrence. The Does argue that SORNA of 1999 is retributive because it imposes
registration obligations on them for past wrongdoing even though some of them
have gone decades without reoffending; additionally, they argue that it is a
deterrent because they are subject to increased supervision by the State and
increased scrutiny by the public.
[¶38] In considering this factor in Smith, the Supreme Court concluded that
although the Alaska sex offender registration scheme may deter future crimes, such
a finding did not warrant a finding that the registration statute was punitive because
“[a]ny number of governmental programs might deter crime without imposing
punishment.” 538 U.S. at 102. Further, even though the Alaska registration
scheme differentiated among individuals based on the extent of their wrongdoing,
19
the corresponding length of the reporting requirements was “reasonably related to
the danger of recidivism, and this is consistent with the regulatory objective.” Id.
[¶39] In Letalien, we concluded that given the differences between Smith
and Letalien in the length of registration for certain offenses, the sparse record
provided “little basis to assess the reasonableness of this widely disparate treatment
and whether Maine’s requirement of lifetime registration is reasonably related to
the danger of recidivism.” 2009 ME 130, ¶ 46, 985 A.2d 4.
[¶40] We are unable to determine on this record whether SORNA of 1999 is
more deterrent in effect than other civil regulatory schemes. Likewise, on the
record presented we cannot assess whether the registration requirements are
reasonably related to the danger of recidivism. See id. Thus, we treat this factor as
neutral. See id.
5. Whether Behavior is Already a Crime
[¶41] The fifth factor we examine is whether the behavior to which SORNA
of 1999 applies is already a crime. We determined in Letalien that the fifth factor
weighed in favor of finding the statute punitive because it “applie[d] exclusively to
behavior that is already a crime.” Id. ¶ 48. For that same reason, we agree that this
factor supports a finding that the statute is punitive.
20
6. Rational Connection to Alternative Purpose
[¶42] The sixth factor is whether there is an alternative purpose rationally
connected to the statute. We determined in Letalien that SORNA of 1999 “serves
a valid governmental purpose separate from punishment” because it is “among the
most basic obligations state government owes its people—ensuring their safety.”
Id. ¶ 50. We discern no reason to depart from the determination we reached in
Letalien and thus conclude that this factor weighs against finding that SORNA is
punitive.
7. Excessive in Relation to Alternative Purpose
[¶43] The seventh and final factor requires us to determine whether the
statute appears excessive in relation to its public safety purpose. The Does contend
that requiring an individual previously convicted for a sex offense to register if he
is later convicted of a non-sex-related offense punishable by more than one year is
excessive. We analyze excessiveness as it relates to the increased burdens on
individuals who were originally sentenced before any statute requiring registration
of sex offenders had been enacted and are now retroactively subject to ten-year or
lifetime registration on the State’s sex offender registry. “The excessiveness
inquiry . . . is not an exercise in determining whether the legislature has made the
best choice possible to address the problem it seeks to remedy. The question is
21
whether the regulatory means chosen are reasonable in light of the nonpunitive
objective.” Smith, 538 U.S. at 105.
[¶44] Although the statutory reporting requirements of SORNA of 1999 are
less stringent and oppressive than those we considered in Letalien, we nevertheless
conclude again that we have insufficient information upon which to determine
whether they are reasonable in light of the law’s nonpunitive purpose of public
safety. Letalien, 2009 ME 130, ¶ 52, 985 A.2d 4. The record does not allow us to
determine whether a less demanding regimen would serve the objective of public
safety equally well. We accordingly treat this factor as neutral. See id. ¶ 55.
8. Assessment of Mendoza-Martinez Factors
[¶45] The Does argue that a conviction-based scheme is inherently punitive
and that the Legislature should implement a risk-assessment scheme. However,
“[i]t is not our role to ask whether the Legislature could achieve its goals through
alternative means.” Id. ¶ 56. Our task is to determine whether the punitive effects
of SORNA of 1999 overcome the Legislature’s civil intent by the clearest proof.
See Cosgro, 2008 ME 64, ¶ 2, 945 A.2d 1221.
[¶46] Our ex post facto analysis in Letalien was informed and driven in
significant part by the fact that registration was part of Letalien’s criminal
sentence. See Letalien, 2009 ME 130, ¶¶ 60-61, 985 A.2d 4. Indeed, “the purpose
of the ex post facto prohibition is rightfully considered to be at its apex when a
22
law’s retroactive application is more punitive than the punishment that was
actually imposed against an offender as part of a sentence.” Id. ¶ 61. By
definition, it was punitive to increase Letalien’s sentence retroactively. Further, it
was the cumulative effect of a combination of factors that produced a finding that
the statute was unconstitutional in Letalien. That is simply not the case here,
where registration was not part of the Does’ sentences and where some of the most
significant concerns we had in Letalien have been remedied by the Legislature.
[¶47] In our present discussion of the Mendoza-Martinez factors, we
conclude that only factor five—whether the statute applies to behavior that is
already a crime—weighs in favor of finding SORNA of 1999 punitive.
[¶48] The first Mendoza-Martinez factor, which is whether the statute
imposes an affirmative disability or restraint, looms large in our conclusion that the
statute is nonpunitive overall. Title 34-A M.R.S. § 11222 significantly reduced the
burden on individuals subject to the registry. We disagree with the Does’
argument that requiring lifetime registration is a significant restraint in and of
itself. Regardless of the length of time an individual is subject to the registry,
reporting to have his registration information verified in person every five years is
a minimal burden, as is reporting in writing no more frequently than quarterly.
[¶49] Additionally, factor six, regarding the important and rational
connection to a nonpunitive purpose—providing truthful information in
23
furtherance of public safety—underscores our conclusion that the statute is
nonpunitive. See Haskell, 2001 ME 154, ¶ 9, 784 A.2d 4 (“[T]he Supreme Court
has intimated, in other cases, that the most significant question under the effects
stage of the analysis is whether the law, ‘while perhaps having certain punitive
aspects, serve[s] important nonpunitive goals.’” (alteration in original) (quoting
United States v. Ursery, 518 U.S. 267, 290 (1996))).
[¶50] Factor four, whether the statute promotes traditional aims of
punishment, and factor seven, whether the statute is excessive in relation to the
alternate purpose, are found to be neutral; accordingly, they do not weigh heavily
in our analysis.
[¶51] After considering all of the Mendoza-Martinez factors, we conclude
that SORNA of 1999 is nonpunitive. As such, it does not violate the Ex Post Facto
Clauses of the United States and Maine Constitutions.
C. Equal Protection
[¶52] The Does argue that SORNA of 1999 violates the Equal Protection
Clauses of the United States and Maine Constitutions because its registration
requirements infringe on the Does’ fundamental rights under article I, section 1 of
the Maine Constitution and are not narrowly tailored to achieve a compelling
governmental interest. In the alternative, the Does argue that SORNA of 1999
unlawfully and arbitrarily treats them differently from similarly situated sex
24
offenders in requiring some offenders to register for ten years and others for life.
The Superior Court found that SORNA of 1999 does not implicate a suspect class
or a fundamental right, and concluded that the Does failed to establish that the
statute treats them differently from similarly situated persons in a way that is not
rationally related to a legitimate state interest.
[¶53] The Fourteenth Amendment’s Equal Protection Clause prohibits “any
state from denying to any person within its jurisdiction the equal protection of the
laws, and requires, generally, that persons similarly situated be treated alike.
Article [I], section 6-A of the Maine Constitution includes similar requirements.”
Anderson v. Town of Durham, 2006 ME 39, ¶ 28, 895 A.2d 944 (citations and
quotation marks omitted); see U.S. Const. amend. XIV, § 1 (“[N]or shall any
State . . . deny to any person within its jurisdiction the equal protection of the
laws.”); Me. Const. art. I, § 6-A (“No person shall be . . . denied the equal
protection of the laws . . . .”).
[¶54] In an equal protection challenge, a state law is subject to strict
scrutiny analysis if it “infringes on a fundamental constitutional right, or
involves . . . a suspect classification.” Anderson, 2006 ME 39, ¶ 29, 895 A.2d 944.
If strict scrutiny applies, the law must be narrowly tailored to achieve a compelling
governmental interest. Id. “If the government action does not implicate either a
fundamental right or a suspect class, different treatment accorded to similarly
25
situated persons need only be rationally related to a legitimate state interest.” Id.
(quotation marks omitted). Laws subject to rational basis review “bear[] a strong
presumption of validity.” Id. “[T]he burden is on the party challenging the
government action to demonstrate that there exists no fairly conceivable set of
facts that could ground a rational relationship between the challenged classification
and the government’s legitimate goals.” Id. (quotation marks omitted).
[¶55] As persons convicted of sex offenses, the Does are not members of a
suspect or protected class for purposes of an equal protection challenge.
See, e.g., United States v. Juvenile Male, 670 F.3d 999, 1009 (9th Cir. 2012); Doe
v. Moore, 410 F.3d 1337, 1346 (11th Cir. 2005). Additionally, the Does have not
established that SORNA of 1999 infringes on a fundamental constitutional right;
they merely refer generally to article I, section 1 of the Maine Constitution10 and
argue in greater detail with regard to substantive due process that a fundamental
right is implicated. As we will discuss in our substantive due process analysis, we
do not find that SORNA of 1999 implicates a fundamental constitutional right.
Accordingly, the Does’ equal protection challenge is subject to the highly
deferential rational basis review. See Anderson, 2006 ME 39, ¶ 29, 895 A.2d 944;
10
Article I, section 1 of the Maine Constitution provides, “All people are born equally free and
independent, and have certain natural, inherent and unalienable rights, among which are those of enjoying
and defending life and liberty, acquiring, possessing and protecting property, and of pursuing and
obtaining safety and happiness.”
26
Haskell, 2001 ME 154, ¶ 16 n.10, 784 A.2d 4 (SORNA’s classifications “need
only be rationally related to a legitimate government goal.”).
[¶56] In order “[t]o succeed in an equal protection challenge where, as here,
the challenging party is not a member of a suspect class” and has not had a
fundamental right infringed, the Does “must show (1) that similarly situated
persons are not treated equally under the law, and (2) that the statute is not
rationally related to a legitimate state interest.” See MacImage of
Me., LLC v. Androscoggin Cnty., 2012 ME 44, ¶ 33, 40 A.3d 975 (quotation marks
omitted).
[¶57] The Legislature has required individuals who are convicted of certain
sex offenses to register for ten years while requiring others who are convicted of a
“sexually violent offense” or multiple sex offenses to register for life. See
34-A M.R.S. § 11203(5), (8). Although all registrants are labeled “sex offenders,”
the Does have not established that ten-year registrants are similarly situated to
lifetime registrants because different conduct triggers the different durational
requirements. See Green v. Comm’r of Mental Health & Mental Retardation,
2000 ME 92, ¶ 22, 750 A.2d 1265 (“There is a good argument that insanity
acquittees and individuals civilly committed are not similarly situated for purposes
of equal protection analysis because of the difference in circumstances giving rise
to their commitment.”). Contrary to the Does’ argument that all sex offenders are
27
similarly situated, the law does not treat offenders convicted of particular offenses
differently because SORNA of 1999 is a conviction-based system.11
[¶58] We do not reach the second step in the analysis given our conclusion
that the Does are not similarly situated to other sex offenders who are treated
differently and the Does’ concessions (1) that protecting the public through
publicizing offender information is a compelling state interest and (2) that we have
previously held that the sex offender registration statutes were enacted to serve the
legitimate governmental purpose of public safety. See Letalien, 2009 ME 130,
¶ 50, 985 A.2d 4.
[¶59] For these reasons, SORNA of 1999 does not violate the Equal
Protection Clauses.
D. Procedural Due Process
[¶60] The Does argue that the classification scheme of SORNA of 1999
implies that they are “dangerous” and therefore they are entitled to challenge that
classification at a hearing pursuant to the Due Process Clause. The trial court
concluded that the Does were not entitled to a hearing to establish whether they are
11
The Does also argue that similarly situated Does can end up in different categories as a result of
prosecutorial discretion. However, “[i]t is well established that a reasonable prosecutorial discretion in
the enforcement of criminal laws is inherent in our criminal justice system,” and the Does do not claim
that “selective enforcement was deliberately made on an impermissible and unjustifiable standard such as
race, religion, a desire to discourage the exercise of one’s constitutional rights or other invidious criteria.”
See State v. Heald, 382 A.2d 290, 301 (Me. 1978).
28
potentially dangerous because that fact is immaterial with regard to their duty to
register.
[¶61] The Maine and United States Constitutions create coextensive due
process rights. Northup v. Poling, 2000 ME 199, ¶ 9 n.5, 761 A.2d 872. “We
review a procedural due process claim in two steps. First, we determine if the
government has deprived a claimant of life, liberty, or property interests. Second,
if such deprivation occurred, we then determine what process, pursuant to the
Fourteenth Amendment, is due . . . .” DaimlerChrysler Corp. v. Me. Revenue
Servs., 2007 ME 62, ¶ 26, 922 A.2d 465 (citations omitted).
[¶62] The Supreme Court has articulated the “stigma-plus test” to determine
whether procedural due process rights12 are implicated when the state imposes a
stigma on an individual that negatively affects his reputation. See Paul v. Davis,
424 U.S. 693, 701, 711 (1976). A state action is an infringement on due process
rights pursuant to the stigma-plus test only if it both negatively affects an
individual’s reputation and alters the legal status of an individual in a manner that
affects his or her liberty, such as revoking parole or taking away the right to
operate a vehicle. Id. at 701, 708-09. The Does’ legal status is unaffected by
12
The stigma-plus test “is limited to consideration of the procedural guarantees of the Due Process
Clause and is not intended to describe those substantive limitations upon state action which may be
encompassed within the concept of ‘liberty’ expressed in the Fourteenth Amendment.” Paul v. Davis,
424 U.S. 693, 710 n.5 (1976).
29
SORNA of 1999.
[¶63] Other courts have held that sex offender registration requirements are
not violations of due process under the stigma-plus test because registration does
no more than make the fact of conviction public, just as SORNA of 1999 does
here. See, e.g., Does v. Munoz, 507 F.3d 961, 965-66 (6th Cir. 2007) (concluding
that registration does not implicate a fundamental right because it disseminates
accurate public information); cf. Gwinn v. Awmiller, 354 F.3d 1211, 1223-24
(10th Cir. 2004) (holding that liberty interests were implicated under the
stigma-plus test where the defendant was incorrectly placed on a sex offender
registry without any process). Because the registry contains no information that
cannot be obtained through a routine criminal background check, the registry does
not affect any of the Does’ liberty or property interests, and we therefore need not
reach the question of what process is due.
E. Substantive Due Process
[¶64] The Does argue that SORNA of 1999 violates their fundamental
rights to privacy, reputation, and property, and their ability to pursue happiness,
and that the law is not narrowly tailored to serve a compelling state interest. The
trial court concluded that the statute does not violate the Does’ substantive due
process rights because it does not infringe on any fundamental right and is
reasonably related to a legitimate state interest.
30
[¶65] We have previously determined that the substantive due process rights
of the United States and Maine Constitutions are coextensive, Green, 2000 ME 92,
¶ 13 n.2, 750 A.2d 1265, and there is nothing presented in this case that causes us
to reconsider that determination. A substantive due process analysis turns on
whether the challenged state action implicates a fundamental right:
First, we have regularly observed that the Due Process Clause specially
protects those fundamental rights and liberties which are, objectively,
deeply rooted in this Nation’s history and tradition, and implicit in the
concept of ordered liberty, such that neither liberty nor justice would
exist if they were sacrificed. Second, we have required in
substantive-due-process cases a careful description of the asserted
fundamental liberty interest. Our Nation’s history, legal traditions, and
practices thus provide the crucial guideposts for responsible
decisionmaking that direct and restrain our exposition of the Due
Process Clause.
Id. ¶ 13 (quoting Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)). In
addition to the rights expressly protected by the Bill of Rights, “the ‘liberty’
specially protected by the Due Process Clause includes the rights to marry, to have
children, to direct the education and upbringing of one’s children, to marital
privacy, to use contraception, to bodily integrity, and to abortion.” Glucksberg,
521 U.S. at 720 (citations omitted). Courts must be cautious in recognizing
fundamental rights that have not been clearly established because “extending
constitutional protection to an asserted right or liberty interest . . . place[s] the
matter outside the arena of public debate and legislative action.” Id.
31
[¶66] If state action infringes on a fundamental right or fundamental liberty
interest, the infringement must be narrowly tailored to serve a compelling state
interest. Id. at 721. If the challenged state action does not implicate a fundamental
right or fundamental liberty interest, it will be upheld if it is reasonably related to a
legitimate state interest. Id. at 722.
[¶67] We conclude that no fundamental liberty interest or fundamental right
is implicated by SORNA of 1999. In particular, the right to privacy alleged by the
Does, i.e., the right to keep private the fact of conviction, is inapposite to the right
to personal autonomy often described as a right to privacy by the Supreme Court
regarding family relationships and bodily integrity. Other courts have also
concluded that no fundamental right is implicated by disclosure of truthful public
information. See, e.g., Paul, 424 U.S. at 713 (holding that publication of a record
of an official act, such as an arrest, does not implicate any fundamental right);
Moore, 410 F.3d at 1345 (“[W]e can find no history or tradition that would elevate
the issue here to a fundamental right. . . . [A] state’s publication of truthful
information that is already available to the public does not infringe the
fundamental constitutional rights of liberty and privacy.”); Doe v. Tandeske,
361 F.3d 594, 597 (9th Cir. 2004) (“[P]ersons who have been convicted of serious
sex offenses do not have a fundamental right to be free from the registration and
notification requirements . . . .”); In re W.M., 851 A.2d 431, 451 (D.C. 2004)
32
(“Under [the Sex Offender Registration Act] and its implementing regulations . . .
only truthful and accurate information of a non-confidential, mainly public nature
is disclosed.”).
[¶68] We do not here establish a new fundamental interest or right.
Because no fundamental right or interest is at stake and the Does have conceded
that SORNA of 1999 is reasonably related to a legitimate state interest, see
Letalien, 2009 ME 130, ¶ 50, 985 A.2d 4, the Does’ substantive due process
challenges must fail.
F. Use of Guilty Pleas
[¶69] The Does argue that SORNA of 1999’s registration requirements
exact more punishment than the Does agreed to in their plea bargain agreements
and they urge us to recognize a right of fundamental fairness under Maine’s
Constitution and to find a violation of the Does’ right to contract. Because we
have concluded that SORNA of 1999 is not punitive under an ex post facto
analysis and implicates no fundamental rights, we do not find merit in this
argument.
G. Rights Afforded by the Maine Constitution
[¶70] The Does urge us to establish a fundamental right to privacy, a right
to protection of reputation, and a right to fundamental fairness under article I,
section 1 of the Maine Constitution. We have already held that SORNA of 1999
33
does not implicate fundamental rights of privacy and reputation under the Maine
Constitution in the context of the Does’ procedural and substantive due process
claims. We also decline to expand our interpretation of Maine’s Constitution to
include a generalized right to “fundamental fairness.” See Bagley, 1999 ME 60,
¶ 13, 728 A.2d 127 (“[W]e have traditionally exercised great restraint when asked
to interpret our state constitution to afford greater protections than those
recognized under the federal constitution.” (quotation marks omitted)).
H. MCRA and § 1983
[¶71] The Does seek prospective relief to protect them from registering in
the future, and an award of the costs associated with registering and the fees
associated with removing their names from the registry. The trial court denied the
Does’ monetary claims, finding that they had not sought any prospective relief and
that their claim for reimbursement was tantamount to an award of damages and
was thus prohibited.
[¶72] Title 42 U.S.C.S. § 1983 states that “[e]very person who, under color
of any [state law], subjects, or causes to be subjected, any citizen of the United
States . . . to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law.” The
MCRA, 5 M.R.S. §§ 4681-4685, is patterned after § 1983 and “provides a private
cause of action for violations of constitutional rights by ‘any person.’”
34
Jenness v. Nickerson, 637 A.2d 1152, 1158 (Me. 1994). The Does have failed to
establish that SORNA of 1999 violated their constitutional rights, thus barring their
claim for prospective relief, which they first raised on appeal.
[¶73] We also conclude that the Does cannot claim a refund for the $31 they
paid to remove their names from the registry. The State’s sovereign immunity bars
retroactive recovery of payments voluntarily made to the State.
See Wellman v. Dep’t of Human Servs., 574 A.2d 879, 884 (Me. 1990) (holding
that sovereign immunity barred retroactive recovery of any previously made
payments). The Does voluntarily paid the fee. See State v. Van Reenan,
355 A.2d 392, 395 (Me. 1976) (concluding that a defendant who voluntarily
submitted to a breath test in order to avoid having his license suspended pursuant
to a statute could not challenge the constitutionality of that statute because he was
not subject to the sanctions of which he complained.).
[¶74] A state, including a state official in his or her official capacity, is not a
person within the meaning of § 1983 or the MCRA, barring the Does’ additional
monetary claims. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64, 71
(1989); Jenness, 637 A.2d at 1158. We are not persuaded by the re-stylization of
the Does’ damage claims as anything other than monetary compensation from
alleged past violations. The court did not err in dismissing the Does’ monetary
claims.
35
I. Summary Judgment
[¶75] The Does contend that the factual record on summary judgment was
inadequate for the trial court to rule on the parties’ cross-motions. In particular,
they contend that there were insufficient facts for the court to decide the Does’
equal protection and procedural and substantive due process claims.
[¶76] We are not persuaded by the Does’ arguments that the record was
inadequate. Parties opposing summary judgment, in this case the Does, have the
burden of presenting sufficient evidence to generate a genuine issue of material
fact. See M.R. Civ. P. 56(c) (“Judgment shall be rendered . . . if . . . there is no
genuine issue as to any material fact . . . .”); Estate of Pinkham v. Cargill, Inc.,
2012 ME 85, ¶ 16, 55 A.3d 1 (evaluating whether the plaintiff “presented enough
evidence to create a genuine issue of material fact”); Cookson v. Brewer Sch.
Dep’t, 2009 ME 57, ¶ 30, 974 A.2d 276 (“Because [plaintiff] has failed to raise a
genuine issue of material fact . . . the court did not err in entering a summary
judgment for [the defendant] . . . .”). The Does failed to do so here.
[¶77] In their ex post facto argument, but not in their summary judgment
argument, the Does refer to factual disputes they claim warranted the denial of the
State defendants’ cross-motion for summary judgment. Two facts were in the
Does’ statement of material facts and denied by the State defendants. The first
concerns the relationship between the number of convictions and the risk of
36
recidivism: “There is no empirical evidence and no accepted professional opinion
that a person who committed two Class A sex offenses before 1985 would be more
dangerous in 2010 as a sex offender than one who committed one such offense
before 1985.” The second fact concerns whether there is a relation between sex
offenders who commit non-sex offenses and public safety risks:
There is no empirical evidence and no accepted professional opinion
that a sex offender who committed one sex offense before 1995
followed by a Class C or higher offense unrelated to sexual activity is
therefore more dangerous as a sex offender in 2010 than a pre 1995
sex offender who has not committed a separate [C]lass C or higher
offense after his sex offense but unrelated to any sexual activity.
In their reply brief, the Does identify two additional facts included in the State
defendants’ statement of material facts that the Does denied, and which relate to
the rate of recidivism over time.13
[¶78] In the final analysis, the disagreement between the Does and the State
on the disputed facts does not concern material issues that the trial court would
necessarily address in further proceedings. Instead, they constitute policy
considerations that are appropriately addressed to the legislative process. The fact
that the parties do not agree upon them or their import is not an impediment to
13
The two facts, with their citations omitted, are (1) “Over time, the cumulative rate of recidivism
increases”; (2) “The recidivism rates for STATIC-99 show that cumulative re-offense rates are higher at
15 years than 5 years.” The Does identify four other facts in their reply brief, but the Does admitted those
facts.
37
summary judgment. We therefore conclude that the Does’ arguments that
summary judgment was improperly granted are unpersuasive.
J. Attorney Fees
[¶79] Does I, III, IV, V, VI, VII, VIII, X, XIII, XVI, XVIII, XXIV, and
XLIII argue that they should receive an attorney fees award as prevailing parties
pursuant to § 1983 and the MCRA. The trial court concluded that the Does were
not entitled to recover attorney fees because they did not prevail on their motion
for summary judgment. The court also found that the “catalyst theory” was an
unavailable avenue for recovering attorney fees pursuant to Maine law, and even if
it were available, the Does were not entitled to recover pursuant to that theory.
[¶80] The trial court may award attorney fees to a prevailing party “in any
action or proceeding to enforce a provision of § 1983.” Bangs v. Town of Wells,
2003 ME 129, ¶ 8, 834 A.2d 955; see also 42 U.S.C.S. § 1988(b) (Lexis 2012).
The MCRA similarly provides that the court may award attorney fees to a
prevailing party. 5 M.R.S. § 4683. We review the trial court’s “determination
regarding prevailing party status for clear error,” and review its denial of attorney
fees for an abuse of discretion. Bangs, 2003 ME 129, ¶ 7, 834 A.2d 955.
[¶81] The trial court’s finding that the Does were not prevailing parties is
not clearly erroneous. The court ruled in favor of the State defendants on all of the
Does’ claims. See Portland Co., 2009 ME 98, ¶ 32, 979 A.2d 1279. Moreover,
38
the grant of temporary restraining orders does not satisfy the prevailing-party
requirement. In the Does’ case, “the preliminary injunction[s] . . . merely
maintained the status quo, [they] did not effect a material alteration in the parties’
legal relationship and the plaintiffs therefore [are] not prevailing parties under
§ 1988.” See Advantage Media, LLC v. City of Hopkins, 511 F.3d 833, 837
(8th Cir. 2008).
[¶82] The Does argue that they are “prevailing parties” pursuant to the
catalyst theory. The catalyst theory “posits that a plaintiff is a ‘prevailing party’ if
[the lawsuit] achieves the desired result because [it] brought about a voluntary
change in the defendant’s conduct.” Buckhannon Bd. & Care Home, Inc. v. W. Va.
Dep’t of Health & Human Res., 532 U.S. 598, 601 (2001). The State defendants
contend that the Supreme Court’s rejection of the catalyst theory in Buckhannon
Bd. & Care Home, Inc. foreclosed an award of attorney fees to the Does. See
532 U.S. at 600.
[¶83] The Does advance the catalyst theory in arguing that Doe v. District
Attorney led to the enactment of P.L. 2009 ch. 365, § B-3 (effective date
Sept. 12, 2009) (codified at 34-A M.R.S. § 11202-A(1) (2009)), providing for
certain exceptions to the registration requirements, and the litigation in Letalien,
leading to the legislative enactment of P.L. 2009 ch. 570 (effective date
Mar. 30, 2010) (codified at 34-A M.R.S. §§ 11202-A, 11222, 11225-A), alleviating
39
the reporting requirements. The connection between their lawsuit and the
legislative changes is too tenuous. In fact, at the time John Doe I’s case reached us
in Doe, the plaintiff had expressly not pursued an ex post facto claim.14 Instead,
our decision in Letalien, analyzing an ex post facto claim, triggered the recent
legislative changes to 34-A M.R.S. § 11222. Because the legislative changes to
SORNA of 1999 are not the result of this litigation, we do not address the catalyst
theory further.
IV. CONCLUSION
[¶84] For the foregoing reasons, we affirm the trial court’s decision that
SORNA of 1999 is not an unconstitutional ex post facto law. The Does’ other
constitutional and statutory challenges are unpersuasive.
The entry is:
Judgment affirmed.
SILVER, J., with whom ALEXANDER and JABAR, JJ., join, dissenting.
[¶85] We respectfully dissent because the requirements of SORNA of 1999
are punishment to those who have completed their sentences and paid back society
14
“At oral argument, Doe’s counsel stated that he was not requesting that we reconsider whether
SORNA is ex post facto as he recognized that State v. Haskell, and Smith v. Doe, had decided the issue.”
Doe, 2007 ME 139, ¶ 21 n.4, 932 A.2d 552 (citations omitted).
40
long ago. As we have already learned, tragically, here in Maine, the publication of
names and pictures on the Internet is dangerous and dramatically affects the
registrants’ lives. See Associated Press, 2 Sex Offenders Shot to Death in Their
Homes, N.Y. Times, Apr. 17, 2006, at A14; Raja Mishra, Suspect May Have
Wanted to Kill Others, Boston Globe, Apr. 25, 2006, at B2. Those who do not
comply with the requirements of SORNA of 1999 face criminal sanctions similar
to those imposed on defendants who violate conditions of release or probation.
The requirements of SORNA of 1999, as they affect these Does, are ex post facto
laws that violate the United States and Maine Constitutions. Nowhere else in the
realm of laws is such an ex post facto violation permitted.
[¶86] We do not dispute that the requirements of SORNA of 1999 may be
enforced on persons whose sentences have been imposed since the requirements of
SORNA of 1999 took effect. The propriety of applying SORNA of 1999 to current
offenders is not at issue in this appeal. What is at issue is whether, after a person’s
sentence has been imposed, and after that sentence has been served, the State may
add to the sentence new and onerous burdens and restrictions that were not
authorized when the offender was sentenced. The constitutional requirements that
govern this issue are not unique to SORNA of 1999. If the State can impose
additional burdens and restrictions here, it can do it for completed sentences for
41
any other crime that society decides, in hindsight, was not subject to tough enough
sanctions the first time around.
I. UNITED STATES CONSTITUTION
[¶87] There are several reasons why SORNA of 1999 is punishment and
violates the United States Constitution. A look at some of the Mendoza-Martinez
factors shows that many of them weigh in favor of finding the statute punitive.
A. Affirmative Disability or Restraint
[¶88] We determined in State v. Letalien that “SORNA of 1999 [prior to the
ch. 570 amendment] impose[d] a disability or restraint that is neither minor nor
indirect” because “quarterly, in-person verification of identity and location of
home, school, and employment at a local police station, including fingerprinting
and the submission of a photograph, for the remainder of one’s life, is undoubtedly
a form of significant supervision by the state.” 2009 ME 130, ¶ 37, 985 A.2d 4.
Now, a lifetime registrant who was sentenced prior to September 18, 1999, is only
required to report in writing every ninety days and report in person every five
years, unless there has been a change in address or appearance. 34-A M.R.S.
§ 11222(4-B) (2012). Admittedly, this is a lower physical burden on the offender
than predecessor acts’ requirements that the offender report every ninety days in
person. The level of state supervision, however, has not changed in a material way
42
because the State still maintains and distributes the same amount of highly
personal information about the offender.
[¶89] The effect of the registration and reporting requirements of SORNA
of 1999 is substantially more burdensome than renewing a driver’s license. Most
notably, if the offender fails to comply with the reporting provisions in SORNA of
1999, he exposes himself to criminal liability, which reflects the punitive effect of
the statute. See 34-A M.R.S. § 11227(1) (2012) (providing that the first offense is
a Class D crime). In comparison, if an individual chooses not to renew his driver’s
license he is simply not permitted to drive. Although the changes to SORNA of
1999 have reduced the physical burdens on the offender, the State’s supervision
and control over the offender have not been reduced. This supervision and control,
as we recognized in Letalien, signifies the punitive effect of SORNA of 1999.
B. Historically Regarded as Punishment
[¶90] Labeling a law’s burden as civil instead of criminal does not reduce
the level of punishment attached to the burden, nor should it reduce the
constitutional protection connected to the burden.15 Likewise, a burden that was
imposed as part of a sentence does not become less punitive if it is later imposed as
part of a regulatory requirement that parallels sentencing.
15
The issue of whether a burden is civil or criminal was discussed in further detail in State v. Letalien,
2009 ME 130, ¶¶ 73-74, 985 A.2d 4 (Silver, J., concurring).
43
[¶91] In Letalien, we provided a detailed description of the evolution of the
sex offender registry in Maine. 2009 ME 130, ¶¶ 4-12, 985 A.2d 4. One aspect of
the registry that has evolved is its relation to sentencing procedures. Beginning in
1996, the registration requirements of SORNA of 1995 were imposed as part of a
sentence. P.L. 1995, ch. 680, § 4. Subsequently, the statute was amended to
instruct the court to order convicted offenders to register at the time it imposed a
sentence, but it was no longer “part of a sentence.” P.L. 2003, ch. 711, § B-13.
Although the statutory language removed the registry from the direct realm of
sentencing, this change “did not, in itself, make the registration requirements less
punitive or otherwise remove the constitutional infirmity.” Letalien,
2009 ME 130, ¶ 74, 985 A.2d 4 (Silver, J., concurring).
[¶92] The stigma associated with publication on the Internet is
demonstrative of SORNA of 1999’s role as punishment and its punitive effects.
See Smith v. Doe, 538 U.S. 84, 115-16 (2003) (Ginsburg, J., dissenting) (noting
that the public notification regimen of the registry “calls to mind shaming
punishments once used to mark an offender as someone to be shunned”); Doe v.
State, 189 P.3d 999, 1012 & n.98 (Alaska 2008) (noting that the act of registering
is not analogous to shaming, but the dissemination provision is analogous). The
public does not have access to the pictures, home addresses, and work places of
those convicted of robbery, arson, embezzlement, or any other crime. We
44
acknowledge that there is a stigma connected to any criminal behavior and there
often is retribution by the public against those who have committed crimes.
However, in no other area of the criminal law do we allow the public to have
access to such personal information. Because these Does have not committed
additional sex crimes since they completed their sentences, they were not required
to be on a registry when the registry system was first created. Placing them on the
registry now forces them to face additional public ridicule. See Human Rights
Watch, No Easy Answers: Sex Offender Laws in the US 78-79 (2007), available at
http://www.hrw.org/reports/2007/us0907/us0907web.pdf (discussing the serious
impact the dissemination of registration information has on the registrants).
[¶93] In State v. Freeman we found that the civil proceeding by which some
OUI laws were enforced had punitive consequences of the type that characterize
criminal prosecution. 487 A.2d 1175, 1176-77 (Me. 1985) (finding the statute void
because its purpose was frustrated). In our analysis of the civil OUI proceeding,
we considered, in part, the effect that the pre-charging mechanism for OUI
defendants had on one’s reputation. Id. at 1178.16 In this consideration, we noted
that the stigma from the pre-charging mechanism associated with the civil
16
In State v. Freeman, in addition to stigma, we also considered that the defendant is still subject to
arrest and detention and the “civil” charge enhances the charge and sentence of subsequent OUI
violations. 487 A.2d 1175, 1178-79 (Me. 1985).
45
proceeding for the OUI offense paralleled the stigma associated with the criminal
proceeding. Id. As a result, we found that the stigma was “highly suggestive of
the true criminal nature of the procedure.” Id.; see also State v. Anton,
463 A.2d 703, 708 (Me. 1983) (noting the lack of criminal stigma regarding the
decriminalization of traffic offenses).
[¶94] Sex offenders who are required to register are subjected to stigma in
part due to the underlying offense, but also in part due to the dissemination of
information. The registry makes significant personal information readily available
to the public.17 The impact of this dissemination is heightened by the use of the
Internet, thus correlating the dissemination “to the shaming and branding
punishments used in colonial times.” Doe v. Dist. Attorney, 2007 ME 139, ¶ 55,
932 A.2d 552 (Alexander and Silver, JJ., concurring). As discussed below in
relation to the traditional aims of punishment, the stigma associated with Internet
publication has the potential to cause “retributive and vigilante violence against
registrants.” Id. The historic connection to criminal sentencing and shaming,
17
SORNA of 1999 provides the public access to each offender’s name, date of birth, photograph, city
or town of domicile and residence, address of employment, address of college or school, the statutory
citation and name of the offense for which the registrant was convicted, and designation as a 10-year or
lifetime registrant. 34-A M.R.S. § 11221(9)(A) (2012). Additional information, including the mailing
address and physical location of a registrant’s domicile and residence, is easily available to the public
through a written request. 34-A M.R.S. § 11221(9)(B) (2012).
46
along with the retribution and deterrence discussed below, demonstrate SORNA of
1999’s punitive effect.
C. Traditional Aims of Punishment
[¶95] SORNA of 1999 promotes retribution and deterrence, especially as it
relates to Does III, X, XIX, XXIII, and XLIII. Such characteristics are present
regardless of the intent of the Legislature. As the Indiana Supreme Court said in
its discussion of that state’s sex offender registration act:
It is true that to some extent the deterrent effect of the registration and
notification provisions of the Act is merely incidental to its regulatory
function. And we have no reason to believe the Legislature passed the
Act for purposes of retribution—vengeance for its own sake.
Nonetheless it strains credulity to suppose that the Act’s deterrent
effect is not substantial, or that the Act does not promote community
condemnation of the offender, both of which are included in the
traditional aims of punishment.
Wallace v. State, 905 N.E.2d 371, 382 (Ind. 2009) (quotation marks and citations
omitted). Although we accept that SORNA of 1999 is not intended as retribution
for sex offenders’ crimes, it has that effect, due, in part, to its tendency to
stigmatize the registrant. As a result, “[i]t promotes community condemnation in
its most extreme form: vigilantism.” Letalien, 2009 ME 130, ¶ 75, 985 A.2d 4
(Silver, J., concurring).
[¶96] As discussed in prior SORNA cases, and cited with concern by the
Does in this case, acts of violence against those registered on the Maine Sex
47
Offender Registry are not unknown. In 2006, “a Canadian man targeted and
murdered two Maine sex offenders, who[m] he had located on Maine’s registry
website.” Doe, 2007 ME 139, ¶ 56 n.21, 932 A.2d 552 (Alexander and Silver, JJ.,
concurring); see also Letalien, 2009 ME 130, ¶ 75, 985 A.2d 4 (Silver, J.,
concurring). More recent iterations of SORNA continue to invite the possibility of
vigilantism by providing access to the registry via Maine’s registry website. The
use of the Internet registries allows anyone, anywhere in the world, to have
unlimited access to the information.
[¶97] In addition to exposing the offenders to acts of vigilantism, there is
evidence that registries do not achieve their primary objective of protecting the
public. See 34-A M.R.S. § 11201 (2012) (“The purpose of this chapter is to protect
the public from potentially dangerous registrants and offenders by enhancing
access to information concerning those registrants and offenders.”). See also
Kristen M. Zgoba & Karen Bachar, National Institute of Justice, Sex Offender
Registration and Notification: Limited Effect in New Jersey 2 (2009), available at
https://www.ncjrs.gov/pdffiles1/nij/225402.pdf (finding that the sex offender
registry did not reduce the number of rearrests for sex offenses or the number of
victims of sexual offenses). Instead, the registry may promote criminally deviant
behavior by socially isolating offenders. See J.J. Prescott, Do Sex Offender
Registries Make us Less Safe?, Regulation, Summer 2012, at 50 (discussing the
48
“negative collateral consequences” for registrants, including loss of social ties, that
may cause an increase in criminal behavior). As Justice Brennan noted in Trop v.
Dulles, “I can think of no more certain way in which to make a man in whom,
perhaps, rest the seeds of serious antisocial behavior more likely to pursue further a
career of unlawful activity than to place on him the stigma of the derelict, uncertain
of many of his basic rights.” 356 U.S. 86, 111 (1958) (Brennan, J., concurring).
SORNA of 1999 clearly promotes retribution and deterrence by inadvertently
creating an environment where the Does are stigmatized in a way that may invite
violent attacks and stall rehabilitation.
D. Excessiveness
[¶98] SORNA of 1999 requires defendants convicted of statutorily specified
sex offenses to register. 34-A M.R.S. § 11203(5)-(8) (2012). The registry widely
disseminates information about all sex offenders convicted of these crimes. The
only information provided to the public upon which it can determine the potential
risk each offender poses, however, is the statutory citation and name of the offense
that placed the offender on the registry. The registry, and therefore the public,
does not take other factors into account, such as distinguishing between individuals
“who have been evaluated by a clinical and forensic psychologist and determined
to be at the lowest risk of reoffending, and those individuals who committed
multiple crimes; victimized infants and toddlers; and tortured, maimed, or killed
49
their victims.” Letalien, 2009 ME 130, ¶ 77, 985 A.2d 4 (Silver, J., concurring).
By failing to distinguish among offenders, the registry exceeds its purpose of
promoting public safety, making its effects on registrants punitive.
E. Evaluation of the Mendoza-Martinez Factors
[¶99] We do not determine whether a statute has a punitive effect based on
the mere number of factors that demonstrate such effect. Instead, we assess these
factors and their relative weight. See Doe v. State, 189 P.3d at 1018. The factors
discussed here, as well as the majority’s discussion regarding whether the behavior
is already a crime, demonstrate that SORNA of 1999 has a punitive effect. Most
notably, SORNA of 1999 imposes requirements that are historically regarded as
punishment because of their connections to sentencing and the associated stigma.
Additionally, the stigma associated with the registry subjects the offenders to
retribution, which in turn promotes deterrence, which are traditional aims of
punishment. Overall, these factors provide clear proof that the statute’s punitive
effect overcomes the Legislature’s civil intent. See Smith, 538 U.S. at 92 (setting
forth the United States constitutional standard for determining criminality of sex
offenders registry).
II. MAINE CONSTITUTION
[¶100] SORNA of 1999, as it applies to the Does, violates the Maine
Constitution. The Maine Constitution provides an independent basis for decision,
50
while the United States Constitution merely prescribes the minimum constitutional
protections that states must afford their citizens.18 We conclude that the Maine
Constitution can be distinguished from the United States Constitution, and that
SORNA of 1999 violates the Maine Constitution, even if it would pass muster
under the United States Constitution. Compare Smith, 538 U.S. at 105-06 (finding
the Alaska sex offender’s registry constitutional pursuant to the United States
Constitution) with Doe v. Alaska, 189 P.3d at 1003, 1007, 1019 (finding the Alaska
sex offender’s registry unconstitutional pursuant to the state constitution).
[¶101] The placement of the Ex Post Facto Clause within the Maine
Constitution, as compared to its placement in the United States Constitution,
provides us a basis for applying a more heightened standard. In the Maine
Constitution, the Ex Post Facto Clause is located in article I, section 11, which
declares the personal rights of Maine’s citizens, while the federal Ex Post Facto
Clause is located in article I, section 9, which describes the powers and limitations
of the legislative branch of the federal government. Compare Me. Const. art. I,
§ 11 with U.S. Const. art. I, § 9, cl. 3. The placement of the clause in the Maine
Constitution shows that the Maine Constitution establishes a right of the people to
not be subject to ex post facto laws, unlike the clause’s placement in the United
18
A more in-depth ex post facto analysis pursuant to the Maine Constitution, rather than the United
States Constitution, is provided in Letalien, 2009 ME 130, ¶¶ 66-72, 985 A.2d 4 (Silver, J., concurring).
51
States Constitution, which merely prohibits Congress from enacting an
ex post facto law as part of a list of limitations on the powers of Congress. The
distinction leads to a significant consequence: to obtain a declaration that SORNA
of 1999 is in violation of the prohibition on ex post facto laws in the Maine
Constitution, the Does need to merely overcome the presumption of
constitutionality; under the United States Constitution, they have to show the
“clearest proof” that the statute is punitive despite the legislative intent to make it
civil. See Smith, 538 U.S. at 92.
[¶102] Here, the State argues that SORNA of 1999 is presumed to have a
civil effect, and thus be constitutional. Our opinion in Freeman emphasizes that a
statute such as SORNA of 1999, originally enacted as an explicitly criminal
punishment, cannot change its criminal nature and its punitive purpose simply by
changing its label and its citation. Further, as the prior discussion of the
Mendoza-Martinez factors demonstrates, the statute’s punitive characteristics rebut
any presumption that the SORNA of 1999 law is somehow civil and non-punitive
and thus compliant with the Maine Constitution’s prohibition on ex post facto
laws. SORNA of 1999 exposes the registrants to a level of supervision, stigma,
and penalty that is not contemplated by civil statutes. Similarly, it promotes the
traditional aims of punishment by exposing the registrants to the same penalties as
those newly convicted. Whether these factors provide the “clearest proof” that the
52
effect of the statute is punitive is immaterial to the analysis under the Maine
Constitution. These factors show that there is no doubt that SORNA of 1999 has a
punitive effect that successfully rebuts the presumption of constitutionality and
makes SORNA of 1999 a criminal law.
[¶103] For all the foregoing reasons, SORNA of 1999 is a retroactive
application of a criminal law, which punishes those who have paid their penalty to
society. Thus, it violates the Maine and United States Constitutions. Accordingly,
we would vacate the judgment of the Superior Court and remand for a declaration
that the requirements of SORNA of 1999 cannot be imposed, retroactively, on the
plaintiffs bringing this appeal.
On the briefs:
James E. Mitchell, Esq., and Elizabeth H. Mitchell, Esq., Jim Mitchell and
Jed Davis, P.A., Augusta, for appellants John Does I, III, IV, V, VI, VII,
VIII, X, XIII, XVI, XVIII, XXIV, and XLIII
Ronald W. Bourget, Esq., Law Offices of Ronald Bourget, Augusta, for
appellants John Does XIX and XXIII
William J. Schneider, Attorney General, Paul Stern, Dep. Atty. Gen., Laura
Yustak Smith, Asst. Atty. Gen., and Ronald Lupton, Asst. Atty. Gen., Office
of the Attorney General, Augusta, for appellee State of Maine
53
At oral argument:
James E. Mitchell, Esq., for appellants John Does I, III, IV, V, VI, VII, VIII,
X, XIII, XVI, XVIII, XIX, XXIII, XXIV, and XLIII
Paul Stern, Dep. Atty. Gen., for appellee State of Maine
Kennebec County Superior Court docket number CV-2006-113
FOR CLERK REFERENCE ONLY