Doe v. State

• Decision Date: 12 February 2015
• Docket Number: No. 2013–496,2013–496
• Citation: 111 A.3d 1077,167 N.H. 382
• Parties: John DOE v. STATE of New Hampshire
• Court: New Hampshire Supreme Court

167 N.H. 382

111 A.3d 1077

John DOE

v.STATE of New Hampshire

No. 2013–496

Supreme Court of New Hampshire.

Argued: May 8, 2014

Opinion Issued: February 12, 2015

Orr & Reno, P.A., of Concord (William L. Chapman on the brief and orally), and New Hampshire Civil Liberties Union, of Concord (Gilles Bissonnette on the brief), for the petitioner.

Joseph A. Foster, attorney general (Dianne H. Martin, attorney, on the brief and orally), for the State.

Michael J. Sheehan, of Concord, by brief, for Citizens for Criminal Justice Reform, as amicus curiae.

Brennan Caron Lenehan & Iacopino, of Manchester (Michael J. Iacopino, Iryna N. Dore, and Jenna M. Bergeron on the brief), for New Hampshire Association of Criminal Defense Lawyers, as amicus curiae.

LYNN, J.

The petitioner, John Doe, appeals an order of the Superior Court (McNamara, J.) granting summary judgment for the respondent, the State of New Hampshire, on the petitioner's declaratory judgment action, which sought a ruling that RSA chapter 651–B is unconstitutional, as applied to him, because it violates the prohibition against retrospective laws and the Due Process Clause of the New Hampshire Constitution. See RSA ch. 651–B (2007 & Supp.2014). We affirm in part, reverse in part, and remand.

I

There are no material facts in dispute. In 1987, the petitioner pleaded guilty to two counts of aggravated felonious sexual assault, see RSA 632–A:2 (Supp.2014), which occurred in 1983 and 1984. The petitioner was sentenced to two and a half to five years imprisonment, which was deferred for two years. He was also placed on probation for four years. As part of his sentence, the petitioner was required to attend sex counseling, which he did weekly for two years. In August 1990, the petitioner's probation was terminated.

On January 1, 1994, the petitioner became subject to registration as a sex offender. See RSA 632–A:11 – :19 (1993) (repealed and recodified at RSA 651–B:1 – 12 by Laws 1996, 293:2). According to the petitioner, he was not aware of this requirement until 2004, but since then he has complied with all of the registration requirements. As required, the petitioner reports in person to the local police station four times per year to register. The station is one mile from his residence and because the petitioner is disabled, he must use a scooter or take public transportation to get there. When he reports, he does so in the public lobby of the police station. In addition, twice a year a uniformed police officer goes to the petitioner's residence, unannounced, to verify that he resides there.

In 2005, the petitioner planned to move into his son's home. Because of his status as a registered sex offender, residents of his son's neighborhood petitioned the landlord to prevent the petitioner from moving in. The petitioner did not move in with his son. Since an injury in 2006, the petitioner has been permanently disabled. He must use a cane to get around and he must use a scooter to travel any significant distance. Due to his injury and subsequent disability, the petitioner's physicians have recommended that he obtain public housing in order to meet his medical needs. The petitioner sought housing through the Manchester Housing Authority and was initially approved. However, his approval was revoked because of his status as a registered sex offender.¹ His physicians continue to recommend public housing options, but the petitioner is unable to obtain such housing because of his status, about which he is embarrassed to tell his doctors. He currently lives in a single room in a boarding house.

The petitioner sought a declaratory judgment in the superior court that RSA chapter 651–B (the act) is unconstitutional as applied to him because it violates the prohibition against retrospective laws and the Due Process Clause of the New Hampshire Constitution. The parties agreed that there were no facts in dispute, and each side moved for summary judgment. After a hearing, the trial court granted the State's motion for summary judgment. The trial court ruled that the act did not violate the Ex Post Facto Clause² because the legislature intended the act to be regulatory, and any punitive effects of the act did not override this regulatory purpose by the clearest proof. The trial court also stated that it could not find that the act had a punitive effect because the state's laws are presumed constitutional. The court also held that the act did not violate the petitioner's procedural or substantive due process rights. This appeal followed.

II

On appeal, the petitioner challenges the constitutionality of RSA chapter 651–B, as applied to him, on two grounds. First, he argues that the act violates Part I, Article 23 of the New Hampshire Constitution, which prohibits retrospective laws. Second, he argues that the act violates his procedural due process rights as guaranteed by Part I, Article 15 of the New Hampshire Constitution. We review a trial court's ruling on the constitutionality of a statute de novo. See In the Matter of Bordalo & Carter, 164 N.H. 310, 314, 55 A.3d 982 (2012). The party challenging the constitutionality of a statute bears the burden of demonstrating that it is unconstitutional. New Hampshire Health Care Assoc. v. Governor, 161 N.H. 378, 385, 13 A.3d 145 (2011). "In reviewing a legislative act, we presume it to be constitutional and will not declare it invalid except upon inescapable grounds." Id. (quotation omitted). "[W]hen doubts exist as to the constitutionality of a statute, those doubts must be resolved in favor of its constitutionality." Id. (quotation omitted).

III

The New Hampshire Legislature first enacted the state's sex offender registry law in 1992 by adding sections 11 through 19 to RSA chapter 632–A. Laws 1992, 213:1. In 1993, the act was amended to apply to any sex offender, regardless of the date of conviction, who "completed his sentence not more than 6 years before the [law's] effective date." Laws 1993, 135:1, III. This version of the statute required all sex offenders to register with the department of safety (department), division of state police (division). Laws 1992, 213:1. For purposes of the act, "sexual offenders" were defined as persons who had been convicted of certain sexual assault offenses. See id. Registrants were required to report their current mailing addresses and places of residence or temporary domiciles to the local law enforcement agencies where they resided. Such report was to be made annually within 30 days after each anniversary of the date of release from custody following conviction or of the date of establishing residence in New Hampshire if convicted outside of the state. Id. Registrants also had to report within 30 days after any change of address or place of residence. Id. If a change in residence placed an offender in the jurisdiction of a different local law enforcement agency, in addition to registering with the new agency within 30 days, the offender also had to give written notice of his new address to the local law enforcement agency with which he last registered within 10 days. Id. Certain offenses required the offender to be registered for life, while others required the offender to be registered for ten years. Id. Negligent failure to register was a violation, and knowing failure to register was a misdemeanor. Id.

The information collected by local law enforcement was forwarded to the state police, who had the task of entering the information in the law enforcement name search (LENS) system. Id. The information was confidential and "available only to law enforcement officials and their authorized designees or to the individual requesting his own record in the LENS system." Id. Unauthorized disclosure of confidential information was a violation. See id.

This version of the act was challenged in State v. Costello, 138 N.H. 587, 643 A.2d 531 (1994). In that case, we held that the act did not violate the prohibition against retrospective laws because "[o]n its face the statute [did] not purport to be punitive but [was] merely regulatory, providing a means for law enforcement agencies in this State to share information regarding the whereabouts of convicted sexual offenders." Id. at 590, 643 A.2d 531. This determination was supported by the legislative history of the act. Id. We found that this regulatory purpose was manifest and "any punitive effect of the registration requirement [was] de minimis ." Id. at 590–91, 643 A.2d 531. Since our decision in Costello, the act has been amended several times. The current act, its requirements, and its effects are significantly different from the act that we considered twenty years ago.³

In 1996 the legislature repealed RSA 632–A:11 – :19 and enacted a new chapter—RSA 651–B. Laws 1996, 293:1, 2. In addition to sex offenders, "offenders against children" were now required to register.⁴ Laws 1996, 293:1. Under the new act, information provided by registrants was no longer available only to law enforcement. Law enforcement agencies were given the right to notify schools, youth groups, day care centers, summer camps, libraries, or any other organizations where children gathered, about the names, addresses, offenses, methods of approach to victims, and profiles of previous victims of individuals convicted of certain violations. See id. Law enforcement agencies could also provide photographs of offenders to these organizations. Id. Aside from the enumerated organizations, however, the registration information remained confidential, and the organizations that were notified could use the information only to protect children in their charge; the information could not be used to notify the community at large. Id. An offender could prevent an agency from releasing his information if he obtained an order from the superior court, upon a showing, by clear and convincing evidence, that the offender's risk of reoffending was low. See id.

Two years later, the legislature repealed and re-enacted RSA 651–B...