Doe v. State, S-12150.

• Citation: 189 P.3d 999
• Decision Date: 25 July 2008
• Docket Number: No. S-12150.,S-12150.
• Parties: John DOE, a pseudonym, Appellant, v. STATE of Alaska, Appellee.
• Court: Supreme Court of Alaska (US)

189 P.3d 999

John DOE, a pseudonym, Appellant, v. STATE of Alaska, Appellee.

No. S-12150.

Supreme Court of Alaska.

July 25, 2008.

Darryl L. Thompson, Darryl L. Thompson, P.C., Anchorage, for Appellant.

Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for Appellee.

Before: FABE, Chief Justice, MATTHEWS, and EASTAUGH, Justices.

OPINION

EASTAUGH, Justice.

I. INTRODUCTION

The Alaska statute known as the Alaska Sex Offender Registration Act (ASORA) requires persons convicted of sex offenses to register and periodically re-register with the Alaska Department of Corrections, the Alaska State Troopers, or local police, and disclose detailed personal information, some of which is not otherwise public. Most of the disclosed information is publicly disseminated and is published by the state on the internet.¹ Does applying ASORA to "John Doe," who committed his crime and was convicted and sentenced before ASORA was enacted, violate the ex post facto clause of the Alaska Constitution? We conclude that it does because ASORA imposes burdens that have the effect of adding punishment beyond what could be imposed when the crime was committed. We therefore hold that ASORA's registration requirement does not apply to persons who committed their crimes before ASORA became effective, and reverse the superior court order granting final judgment in favor of the state and against Doe.

II. FACTS AND PROCEEDINGS

"John Doe" was charged in 1985 with three counts of first-degree sexual abuse of a minor for molesting one of his daughters.² Doe pleaded no contest to one count of first-degree sexual abuse of a minor, an unclassified felony, and to one count of second-degree sexual abuse of a minor, a class B felony. The superior court accepted his plea and sentenced him to twelve years of imprisonment with four suspended. Doe began serving his sentence in August 1985.

In December 1990 Doe completed serving the unsuspended portion of his sentence less a good-time reduction required by AS 33.20.010(a) and was released to mandatory parole and supervised probation. In September 1991 the Parole Board released Doe from mandatory parole nearly two years early, based on its determination that Doe had participated in rehabilitative counseling and posed little or no threat to the public. In 1995 Doe completed his period of probation.

In May 1994 the Alaska Legislature enacted the statute known as the Alaska Sex Offender Registration Act (ASORA).³ It became effective August 10, 1994,⁴ after Doe was convicted, sentenced, and released from prison, but before he completed his probation. ASORA requires sex offenders to register with the Alaska Department of Corrections, the Alaska State Troopers, or local police.⁵ It requires registrants to disclose their names, addresses, places of employment, date of birth, information about their conviction, all aliases used, driver's license numbers, information about the vehicles they have access to, any identifying physical features, anticipated address changes, and information about any psychological treatment received.⁶ It authorizes registrants to be photographed and fingerprinted.⁷ Registrants must periodically re-register and update their disclosures: those convicted of aggravated crimes must re-register quarterly; those not convicted of aggravated crimes must re-register annually.⁸ A sex offender who changes residences must give notice to the state trooper office or municipal police department closest to his new residence within one working day.⁹

ASORA requires the Alaska Department of Public Safety to maintain a central registry of sex offenders that contains the information obtained under ASORA.¹⁰ ASORA authorizes public access to offenders' names, aliases, dates of birth, addresses, photographs, physical descriptions, motor vehicle information, places of employment, and public information about their convictions and sentences.¹¹ Public access to the information includes a statement as to whether the offender is in compliance with AS 12.63 or cannot be located.¹² The Department of Public Safety provides public access to the information by posting it on the internet.¹³ A photograph of each registrant appears on a webpage under the caption "Registered Sex Offender/Child Kidnapper."¹⁴ Each registrant's page also displays the registrant's physical description, home address, employer, work address, and conviction information.¹⁵

ASORA's provisions require Doe to register and re-register every three months for the rest of his life.¹⁶ But his information has never been publicly released on the state's website. In 1994 Doe (using the pseudonym Rowe) sued state officials in the United States District Court for the District of Alaska challenging ASORA on the grounds it violates the federal prohibition against ex post facto laws, the Fourth Amendment prohibition against unreasonable searches and seizures, his plea bargain contract, and his right to privacy.¹⁷ The federal court concluded that Doe established a likelihood of success on his ex post facto and plea agreement violation claims, and found that the balance of hardships tipped in favor of Doe to the extent his registration information would be publicly disseminated.¹⁸ It therefore granted a preliminary injunction requiring Doe to register under the act, but prohibiting the state from publicly disclosing the registration information.¹⁹ In 1998 the parties filed cross-motions for summary judgment and the district court granted the state's motion.²⁰

On appeal, the United States Court of Appeals for the Ninth Circuit reversed the state's summary judgment and held that ASORA is an ex post facto law as applied to Doe.²¹ The Alaska Public Safety Commissioner petitioned for certiorari and the United States Supreme Court reversed the Ninth Circuit's decision after concluding that the statute did not violate the federal ex post facto clause.²² The Court remanded the case to the Ninth Circuit.²³ On remand, the Ninth Circuit rejected Doe's other federal substantive and procedural due process claims.²⁴ The federal courts did not rule on Doe's state law claims.

In January 2005 Doe sued the state in the superior court, seeking a judgment declaring that ASORA denies him due process in violation of the Alaska Constitution. Doe also requested a temporary restraining order and preliminary and permanent injunctions to prevent the state from requiring him to publicly register. The state opposed Doe's motion for injunctive relief. In August 2005 the superior court denied Doe's motion. It determined that Doe had established the potential for irreparable harm, but had not established a likelihood of success on the merits. It concluded that Doe had not shown that ASORA's registration requirement violated any fundamental right or liberty interest and that requiring Doe to publicly register therefore would not violate his substantive or procedural due process rights.

Anticipating an appeal to this court, the superior court entered a temporary stay under Alaska Civil Rule 62 prohibiting the state from publishing or disseminating Doe's information. The parties agreed no further superior court proceedings were necessary to resolve Doe's claims and stipulated to entry of final judgment. In November 2005 the superior court entered final judgment for the state and against Doe.

Doe appeals.

III. DISCUSSION

A. Standard of Review

We give de novo review to questions of law, including issues of statutory interpretation.²⁵ In ruling on questions of law, we "adopt the rule which is most persuasive in light of precedent, reason, and policy."²⁶ We apply our independent judgment in determining whether a statute violates the Alaska Constitution.²⁷

B. The Ex Post Facto Clause

1. The parties' contentions

Doe's opening brief argues that compliance with ASORA would impose "harmful and onerous new consequences," violating his right to due process. Because we determined that the essence of his argument is an ex post facto claim, we asked the parties to submit supplemental briefs addressing whether as applied to Doe ASORA violates Alaska's prohibition against ex post facto laws.

Article I, section 15 of the Alaska Constitution, like article I, section 9 of the United States Constitution, provides that "[n]o . . . ex post facto law shall be passed." An ex post facto law is a law "passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences or relations of such fact or deed."²⁸ These constitutional prohibitions bar the legislature from enacting any law that "punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission; or which deprives one charged with a crime of any defense available according to law at the time when the act was committed."²⁹ But "[t]he mere fact that [a statute] alters a convicted felon's circumstances to his or her disadvantage does not in itself invalidate the statute as ex post facto."³⁰ In short, the prohibition applies only to penal statutes; the critical question is therefore whether ASORA imposes additional punishment on individuals, like Doe, who committed their crimes before ASORA became effective. Federal courts use a two-part test to determine whether a statute imposes punishment.³¹ This is the test we will describe in Part III.B.3 and apply in Part III.C. We will refer to this test as the "intent-effects" test or the "multifactor effects" test.

Doe argues that because it "substantially alters" the consequences attached to the completed crime, ASORA satisfies Alaska's ex post facto clause only if ASORA is applied prospectively, to persons who committed their crimes after August 10, 1994, when ASORA took effect.³²

Doe advances two main arguments in support. First, recognizing that the United States Supreme...