January 13, 2015
JOHN DOE XLVI
STEPHANIE ANDERSON et al
Argued: September 10, 2014.
Judgment vacated. Remanded to the trial court for further consideration.
On the briefs: Bruce M. Merrill, Esq., Bruce M. Merrill, P.A., Portland, for appellant John Doe XLVI.
On the briefs: Janet T. Mills, Attorney General, Paul Stern, Dep. Atty. Gen., and Laura Yustak Smith, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellees Stephanie Anderson et al.
At oral argument: Bruce M. Merrill, Esq., for appellant John Doe XLVI.
At oral argument: Laura Yustak Smith, Asst. Atty. Gen., for appellees Stephanie Anderson et al.
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.[*]
[¶1] John Doe XLVI appeals from a judgment of the Superior Court (Kennebec County, Murphy, J.) denying his request for declaratory relief and a temporary restraining order. Doe argues that Maine's Sex Offender Registration and Notification Act of 1999 (SORNA), 34-A M.R.S. § § 11201 to 11256 (2012), as applied to him violates the Bill of Attainder, Due Process, and Separation of Powers Clauses of the Maine Constitution.
[¶2] The trial court determined that as applied to Doe SORNA is not punitive, and rejected Doe's bill of attainder claim without considering the lack of a judicial trial and specificity, the other elements of a bill of attainder challenge. We conclude that SORNA is punitive as to offenders who were not sentenced to comply with SORNA when SORNA registration was part of sentencing and who were subsequently subjected to SORNA registration when their earlier offenses were added to the statutory list of sex offenses and registration was removed from sentencing. We therefore vacate the judgment with respect to the bill of attainder issue. Because the trial record does not contain
sufficient facts regarding the specificity element of Doe's bill of attainder claim, we remand for further consideration.
[¶3] In January 2003, Doe pleaded guilty to and was convicted of possession of sexually explicit material (Class D), 17 M.R.S.A. § 2924(2) (Supp. 2002) and was sentenced to 364 days' imprisonment, with all but seventy-two hours suspended, and one year of probation.
[¶4] When Doe was convicted, SORNA was part of the sentencing process. At the time of Doe's sentence, the Maine Criminal Code, in a section titled " Authorized sentences," required sentencing courts to order defendants who were convicted of sex offenses to comply with SORNA: " As part of a sentence, the court shall order every natural person who is a convicted sex offender or sexually violent predator as defined under Title 34-A, section 11203 to satisfy all requirements set forth in the Sex Offender Registration and Notification Act of 1999." 17-A M.R.S.A. § 1152(2-C) (Supp. 2002). The section of SORNA regarding an offender's duty to register likewise provided, " The court shall determine at the time of sentencing if a defendant is a sex offender or a sexually violent predator. A person who the court determines is a sex offender or a sexually violent predator shall register according to this subchapter." 34-A M.R.S.A. § 11222(1) (Supp. 2002).
[¶5] Doe's Judgment and Commitment form contained a box that the sentencing judge was required to check if the conviction was for an offense requiring SORNA registration. Because possession of sexually explicit material was not then a sex offense as defined by 34-A M.R.S.A. § 11203 (Supp. 2002), the sentencing court did not check the box on Doe's Judgment and Commitment form and Doe was not ordered to comply with SORNA.
[¶6] In September 2003, possession of sexually explicit material was added to the list of sex offenses, a conviction for which required the defendant to register. P.L. 2003, ch. 371, § 2 (effective Sept. 13, 2003) (codified as amended at 34-A M.R.S.A. § 11203(6) (Supp. 2003)). In July 2004, a 2003 amendment to the Maine Criminal Code's sentencing provisions regarding sex offenders took effect. P.L. 2003, ch. 711, § B-13 (effective July 30, 2004). After the amendment's effective date, the sentencing court was to order compliance with SORNA's registration provisions " [a]t the time"
of sentencing rather than " as part of" a sentence. See id.
[¶7] In July 2006, Doe received a letter from the Maine State Police advising him that he was required to register. The following month, he responded with a letter stating that he did not believe he was required to register because there had been no " triggering event" requiring registration, such as a court's determination of the duty to register. After learning of Doe's objection, the Office of the Attorney General sent a letter dated January 10, 2007, to the State Bureau of Identification stating that it would recommend an amendment to SORNA if those convicted after 1999 but before 2003 fell into a " gap in the duty to register."
[¶8] In 2009, 17-A M.R.S. § 1152(2-C) was repealed by P.L. 2009, ch. 365, § A-3 (effective Sept. 12, 2009). This law amended the Maine Criminal Code, repealing " from the sentencing provisions the directive that a court order a person convicted of a sex offense . . . to satisfy all requirements of [SORNA]." L.D. 1157 Summary (124th Legis. 2009). It also amended SORNA to require that a court " notify the offender at the time of sentence of the duty to register[,]" and to provide that an offender's duty to register is triggered by receiving notice from a court, the Department of Corrections, the State Bureau of Identification, or a law enforcement agency. P.L. 2009, ch. 365, § B-15 (effective Sept. 12, 2009). These changes clarified that " the Legislature determines that a duty to register exists based on the conviction," " that a duty to register is not triggered by a court determination, but by and upon notification," " and that the court's duty is only to notify the person of that duty." L.D. 1157 Summary (124th Legis. 2009).
[¶9] In February 2012, Doe received a second notice of the duty to register from the State Bureau of Identification. In April 2012, Doe filed a complaint for a declaratory judgment and temporary restraining order to enjoin the State from pursuing criminal charges against him for failing to register. In his complaint, Doe alleged that SORNA was an unconstitutional ex post facto law and bill of attainder, and that applying it to him violated the Separation of Powers Clause and his substantive and procedural due process rights. At a hearing on May 3, 2012, the Superior Court rejected Doe's ex post facto challenge. On October 29, 2013, the court entered an order rejecting Doe's due process, separation of powers, and bill of attainder claims. Following the court's denial of his motion to reconsider, Doe timely appealed. See M.R. App. P. 2(b).
[¶10] Doe argues that applying SORNA's registration requirements to him violates the Bill of Attainder, Separation of Powers, and Due Process Clauses of the Maine Constitution. We are not persuaded by Doe's arguments regarding due process and separation of powers and do not discuss them further. Our discussion is confined to an analysis of whether SORNA is an invalid bill of attainder. In this regard, Doe specifically contends that because the court did not impose SORNA registration obligations on him when he was sentenced, imposing them on him now violates the Bill of Attainder Clause of the Maine Constitution.
A. Standard of Review
[¶11] We review challenges to the constitutionality of a statute de novo. Doe I v. Williams, 2013 ME 24, P 11, 61 A.3d 718. In so doing, we presume that a statute is constitutional and look for a reasonable interpretation that comports with that presumption. Id. The challenger bears the burden of overcoming this presumption by proving the statute's unconstitutionality. State v. Letalien, 2009 ME 130, P 15, 985 A.2d 4.
B. Bill of Attainder Analysis
[¶12] Pursuant to article I, section 11 of the Maine Constitution, " The Legislature shall pass no bill of attainder [or] ex post facto law . . . ." See also U.S. Const. art. I, § 9, cl. 3 (containing the same prohibitions). For purposes of both the federal and state constitutions, a bill of attainder is (1) a legislative act that applies specifically to named individuals or to identifiable members of a group, and (2) inflicts punishment upon them (3) without a judicial trial. DaimlerChrysler Corp. v. Exec. Dir., Me. Revenue Servs., 2007 ME 62, P35, 922 A.2d 465; United States v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 90 L.Ed. 1252, 106 Ct.Cl. 856 (1946).
[¶13] Although it is listed as the second element, we begin our analysis by considering whether requiring Doe to register pursuant to SORNA constitutes " punishment" within the meaning of the Bill of Attainder Clause.
[¶14] A law imposes punishment for bill of attainder purposes if it is motivated by a legislative intent to punish, does not serve any legitimate nonpunitive purpose, or results in a deprivation of protected liberties that falls within the historical meaning of legislative punishment. DaimlerChrysler Corp., 2007 ME 62, P 35, 922 A.2d 465; Selective Serv. Sys. v. Minnesota Pub. Research Grp., 468 U.S. 841, 852, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984); Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 474-78, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977). This " functional" analysis is similar to the " intent-effects" test used to define punishment for ex post facto purposes. See State v. Haskell, 2001 ME 154, P 8, 784 A.2d 4 (describing the " intent-effects" test and citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)).
[¶15] Both the " functional" analysis and the " intent-effects" test of punishment include an examination of legislative intent as well as an analysis of the statute's purposes and effects. Here, we can
see no reason to distinguish between the Bill of Attainder and Ex Post Facto Clauses with respect to the definition of punishment. See Artway v. Attorney Gen. of N.J., 81 F.3d 1235, 1247 (3d Cir. 1996) (reaching the same conclusion). In light of this determination and our experience applying the " intent-effects" test to SORNA in the ex post facto context, we use the " intent-effects" framework to analyze Doe's challenge.
a. Legislative Intent
[¶16] To identify punishment under the " intent-effects" test, we first construe the statute to determine whether the legislature intended its provisions to be civil or criminal. Haskell, 2001 ME 154, P 8, 784 A.2d 4. If the legislature indicates its intent to create a civil statute, we then consider, notwithstanding the legislature's stated intent, whether the statute's purposes or effects are so punitive as to override the legislature's stated intent. Id. Out of deference to the legislature's intent, we have required a party challenging the statute to provide the " clearest proof" that the scheme is so punitive in purpose or effect as to transform it into a punishment. Id. PP 8, 10, 13; Letalien, 2009 ME 130, P 31, 985 A.2d 4; State v. Cosgro, 2008 ME 64, P 2, 945 A.2d 1221.
[¶17] Here, the Maine Legislature expressed its objective in SORNA's text, which states that SORNA's purpose is " to protect the public from potentially dangerous registrants and offenders by enhancing access to information concerning those registrants and offenders." 34-A M.R.S. § 11201 (2014). In light of this express statement of legislative intent that SORNA is civil in nature, we proceed to analyze SORNA's effects under the Mendoza-Martinez factors.
b. The Mendoza-Martinez Factors
[¶18] In determining whether the effects of SORNA are so punitive as to override the Legislature's stated civil intent, we use the seven factors articulated by the U.S. Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), as " guideposts." Haskell, 2001 ME 154, P 8, 784 A.2d 4. These factors are (1) " [w]hether the sanction involves an affirmative disability or restraint" ; (2) " whether it has historically been regarded as a punishment" ; (3) " whether it comes into play only on a finding of scienter" ; (4) " whether its operation will promote the traditional aims of punishment--retribution and deterrence" ; (5) " whether the behavior to which it applies is already a crime" ; (6) " whether an alternative purpose to which it may rationally
be connected is assignable for it" ; and (7) " whether it appears excessive in relation to the alternative purpose assigned." Mendoza-Martinez, 372 U.S. at 168-69.
[¶19] We have addressed the issue of whether SORNA is punitive in effect, notwithstanding the Legislature's expressed intent to create a civil sanction, in two recent cases-- Letalien and Williams --both of which challenged SORNA's constitutionality on ex post facto grounds. See Letalien, 2009 ME 130, PP 26-63, 985 A.2d 4; Williams, 2013 ME 24, PP 22-51, 61 A.3d 718. These decisions are in agreement with respect to Mendoza-Martinez factors three through seven. Letalien, 2009 ME 130, PP 44-55, 985 A.2d 4; Williams, 2013 ME 24, PP 36-44, 61 A.3d 718. They conclude that SORNA's requirements are not triggered only upon a finding of scienter, that SORNA has a nonpunitive public safety purpose, and that the third and sixth factors thus weigh against finding SORNA punitive. Letalien, 2009 ME 130, PP 44, 50, 985 A.2d 4; Williams, 2013 ME 24, PP 36, 42, 61 A.3d 718. They treat factors four (whether SORNA promotes the traditional aims of punishment) and seven (whether SORNA is excessive in relation to its nonpunitive purpose) as neutral. Letalien, 2009 ME 130, PP 45-46, 55, 985 A.2d 4; Williams, 2013 ME 24, PP 40, 44, 61 A.3d 718. And, because the behavior to which SORNA applies is already a crime, the decisions conclude that factor five supports a finding that SORNA is punitive. Letalien, 2009 ME 130, P 48, 985 A.2d 4; Williams, 2013 ME 24, P 41, 61 A.3d 718.
[¶20] Although their conclusions differ with respect to the first Mendoza-Martinez factor, Williams, 2013 ME 24, PP 30-33, 61 A.3d 718, the pivotal issue in both decisions was the second factor--whether SORNA's requirements have historically been considered punishment.
[¶21] In Letalien we considered the constitutionality of retroactively applying SORNA's amended and enhanced reporting requirements to Letalien, who had been sentenced to comply with less stringent reporting requirements under an earlier version of SORNA. Letalien, 2009 ME 130, PP 5-8, 985 A.2d 4. In analyzing whether retroactive application of SORNA's enhanced requirements was punitive, we utilized the " intent-effects" test and the Mendoza-Martinez factors. Id. PP 30-62. We held that application of SORNA's amended, enhanced reporting requirements to Letalien was punitive for ex post facto purposes. Id. P 62.
[¶22] The Letalien decision centered on our conclusion under the second Mendoza-Martinez factor that retroactive imposition of SORNA registration obligations has historically been regarded as punishment. Id. PP 57, 59-61; see also Williams, 2013 ME 24, P 46, 61 A.3d 718. In analyzing the second factor, we looked to the unique history of SORNA and its incorporation into the criminal sentencing process. Letalien, 2009 ME 130, PP 39, 42-43, 985 A.2d 4. We determined that " when sex offender registration is made a part of an offender's criminal sentence, it necessarily constitutes a part of the punishment administered by the State in response to that offender's criminal conviction."  Id. P 61. Because an order to comply with SORNA's requirements was " an integral part of the sentencing process" when Letalien was sentenced, id. P 42, we concluded that application of SORNA's enhanced reporting requirements to him after sentencing " modified and enhanced a portion of his criminal sentence," and that this sentence enhancement was historically considered punishment, id. P 43.
[¶23] In Williams, we considered the constitutionality of retroactively applying SORNA's registration requirements to multiple defendants who were sentenced before the enactment of a sex offender registration law. 2013 ME 24, P 28, 61 A.3d 718. We concluded that the retroactive application was not punitive for ex post facto purposes, id. P 51, distinguishing our holding in Letalien based upon our analysis under the second Mendoza-Martinez factor, id. P 35. " [SORNA] of 1995, which affected Letalien, made registration an integral part of the sentencing process and, thus, the resulting sentence. [The version of SORNA applied to the defendants in Williams ], on the other hand, [was] not tied to the sentencing process; this is the crucial distinction upon which Letalien was based." Id. (quotation marks omitted). In light of this distinction, we determined that the second Mendoza-Martinez factor weighed against concluding that SORNA was punitive. Id.
[¶24] The instant case is closer to Letalien than Williams. When Doe was sentenced, there was a sex offender law in effect and SORNA was an " integral part of the sentencing process." See id. The Williams Court recognized this factual difference as significant and used it to distinguish Letalien from the defendants in Williams, who were convicted before the enactment of a sex offender law, and for whom SORNA was not part of sentencing. Id.
[¶25] At the time of Doe's conviction, SORNA was in effect and trial judges imposed SORNA's registration requirement as part of the sentencing process for every person convicted of a sex offense. Doe was not ordered to comply with SORNA's registration requirement at sentencing because the Legislature had not included his crime--possession of sexually explicit material--in the list of sex offenses. See 34-A M.R.S.A. § 11203 (Supp. 2002). If Doe's crime had been identified as a sex offense by the Legislature, the sentencing court would have ordered him to comply with SORNA's registration requirements
as part of his criminal sentence.
[¶26] When the statutory definition of sex offense was amended in September 2003, possession of sexually explicit material was retroactively added to the list of offenses with sentences that required SORNA registration. See P.L. 2003, ch. 371, § 2 (effective Sept. 13, 2003) (codified as amended at 34-A M.R.S.A. § 11203(6) (Supp. 2003)). After SORNA registration was removed from sentencing in 2004, see P.L. 2003, ch. 711, § B-13 (effective July 30, 2004), Doe received notice that he was required to register.
[¶27] Like Letalien, Doe was convicted at a time when SORNA registration requirements were an " integral part of the sentencing process." Letalien, 2009 ME 130, P 42, 985 A.2d 4. Because Doe's sentence did not include a SORNA registration requirement, the later imposition of registration requirements caused his original sentence to be " modified and enhanced." See id. P 43.
[¶28] Each of the seven Mendoza-Martinez factors is relevant to the determination of whether a statute is punitive. Id. P 32. Those factors are not subject to a " precise mathematical formulation," but rather are weighed qualitatively. Id. (quotation marks and internal punctuation omitted). For the reasons set out above, we conclude that in the present case, retroactive imposition of SORNA registration requirements on Doe is a sanction historically regarded as punishment, and that the second Mendoza-Martinez factor thus weighs in favor of finding the sanction punitive in effect. We have noted the effect of the first and the third through seventh factors as they bear on the Mendoza-Martinez analysis here. However, a retroactive increase in the burdens of Doe's sentence carries substantial weight in our overall analysis under the Mendoza-Martinez framework. Having considered all of the Mendoza-Martinez factors, we conclude that retroactive application of SORNA's registration requirements to Doe is punitive in effect.
2. Lack of a Judicial Trial
[¶29] In addition to establishing that the legislative act inflicted punishment, a party challenging a statute under the Bill of Attainder Clause must prove the elements of the statute's application to a specific individual or group, and the lack of a judicial trial. DaimlerChrysler Corp., 2007 ME 62, P 35, 922 A.2d 465. The imposition of punishment without trial " violates fundamental constitutional principles" because it allows the legislature to " circumvent the judicial process." Doe v. Weld, 954 F.Supp. 425, 430 (D. Mass. 1996) (quotation marks omitted).
[¶30] Here, the duty to comply with SORNA was clearly imposed on Doe without a judicial trial. Doe did not have a trial but he did plead guilty to one charge of possession of sexually explicit material. After that plea, which resulted in his conviction, Doe was sentenced, but his sentence did not include a registration obligation because, at the time Doe was sentenced, the Maine Legislature had not deemed his crime to be a sex offense. The legislative amendment to SORNA that purported to change Doe's sentence by imposing registration obligations on him occurred without a judicial determination that Doe was a sex offender and without a judicial order incorporating the registration obligation into his criminal sentence.
[¶31] In light of our conclusions that the imposition of SORNA registration obligations on Doe resulted in a punitive enhancement of his sentence, and that this enhancement occurred without a judicial trial, we consider the third element of a bill of attainder--that is, the law's application to a specific individual or group. The element of specificity is not established by proof that a statute merely imposes punishment on some persons or groups, but also requires proof that certain persons or groups are selected based on their irreversible prior conduct. Roe v. Farwell, 999 F.Supp. 174, 193 (D. Mass. 1998).
[¶32] The record indicates that the SORNA amendment in question may have targeted a specific group based on its members' prior conduct. If it did, application of the amendment to members of that group violates the Bill of Attainder Clause because it legislatively enhances their sentences. The trial court concluded that SORNA is not punitive and it denied Doe's bill of attainder claim without addressing the issue of specificity. Because the record does not contain any factual findings or stipulations concerning specificity, we must remand for further consideration of this issue.
[¶33] The Bill of Attainder Clause " does not preclude a State from making reasonable categorical judgments that a conviction of specified crimes should entail particular regulatory consequences." Smith v. Doe, 538 U.S. 84, 103, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). It does, however, preclude the legislature from imposing punishment on an individual or group in circumvention of the judicial process. Because the SORNA amendment at issue here imposes punishment outside of the judicial process, and because the trial court did not address the element of specificity, we vacate the judgment and remand to the trial court for further consideration.
The entry is:
Judgment vacated. Remanded to the trial court for further consideration.