Doe v. Anderson

• Decision Date: 13 January 2015
• Docket Number: Docket No. Ken–14–5.
• Citation: 2015 ME 3,108 A.3d 378
• Parties: John DOE XLVI v. Stephanie ANDERSON et al.
• Court: Maine Supreme Court

108 A.3d 378

2015 ME 3

John DOE XLVI

v.Stephanie ANDERSON et al.

Docket No. Ken–14–5.

Supreme Judicial Court of Maine.

Argued: Sept. 10, 2014.

Decided: Jan. 13, 2015.

Bruce M. Merrill, Esq. (orally), Bruce M. Merrill, P.A., Portland, for appellant John Doe XLVI.

Janet T. Mills, Attorney General, Paul Stern, Dep. Atty. Gen., and Laura Yustak Smith, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellees Stephanie Anderson et al.

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.^*

Opinion

JABAR, J.

[¶ 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),¹ as applied to him violates the Bill of Attainder, Due Process, and Separation of Powers Clauses of the Maine Constitution.²

[¶ 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.

I. BACKGROUND

[¶ 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)³ 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).⁴ 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

[¶ 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),⁶ 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)).⁷ In July 2004, a 2003 amendment to the Maine Criminal Code's sentencing provisions regarding sex offenders took effect.⁸ 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).⁹ 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.¹⁰ See M.R.App. P. 2(b).

II. DISCUSSION

[¶ 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.¹¹

A. Standard of Review

[¶ 11] We review challenges to the constitutionality of a statute de novo. Doe I v. Williams, 2013 ME 24, ¶ 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, ¶ 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, ¶ 35, 922 A.2d 465 ; United States v. Lovett, 328 U.S. 303, 315, 106 Ct.Cl. 856, 66 S.Ct. 1073, 90 L.Ed. 1252 (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.

1. Punishment

[¶ 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, ¶ 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, ¶ 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.¹² 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...