John Doe v. Department of Public Safety

• Decision Date: 14 June 2019
• Docket Number: Supreme Court No. S-16748
• Citation: 444 P.3d 116
• Parties: John DOE, Appellant, v. State of Alaska, DEPARTMENT OF PUBLIC SAFETY, Appellee.
• Court: Alaska Supreme Court

444 P.3d 116

John DOE, Appellant,

v.State of Alaska, DEPARTMENT OF PUBLIC SAFETY, Appellee.

Supreme Court No. S-16748

Supreme Court of Alaska.

June 14, 2019

OPINION

MATTHEWS, Senior Justice.

I. INTRODUCTION

This appeal presents two questions concerning the Alaska Sexual Offender Registration Act (ASORA).¹ The first is whether ASORA's registration requirements may be imposed on sex offenders who have moved to the state of Alaska after committing sex offenses elsewhere. The second is whether ASORA violates due process by requiring all sex offenders to register without providing a procedure for them to establish that they do not represent a threat to the public. We conclude that ASORA's registration requirements can constitutionally be applied to out-of-state offenders. We also conclude that ASORA violates due process, but its defect may be cured by providing a procedure for offenders to establish their non-dangerousness.

II. FACTUAL AND PROCEDURAL BACKGROUND

In 2000 John Doe was convicted of aggravated sexual battery in Virginia.² He was sentenced to five years imprisonment, with all time suspended, and a five-year term of probation. Under Virginia law Doe was required to register as a sex offender.³ Doe moved to Alaska around the first of January 2003. On January 6, 2003, he registered as a sex offender. On April 11, 2003, the Department of Public Safety (DPS) wrote Doe indicating that he had to register annually in January of each year. He did so in 2004 and 2005. On February 4, 2005, DPS wrote Doe stating that he was required to register quarterly, for life. DPS noted that Doe's Virginia conviction "has essentially the same elements as sexual assault [first] degree ( AS 11.41.410 ), which is an aggravated offense that requires quarterly verification of your sex offender registration information." Doe did not comply with this new requirement and has not registered since January of 2005. In 2007, Doe was convicted of second degree failure to register as a sex offender.

In 2016 Doe filed suit requesting "[a] declaratory judgment which declares that the Alaska Department of Public Safety lacks jurisdiction to impose the ASORA upon the plaintiff, that the ASORA violates plaintiff's substantive due process rights and that the Department's appeal procedures are inadequate and deny procedural due process." He also sought an injunction enjoining enforcement of ASORA against him. Doe and the State filed cross-motions for summary judgment. After briefing and oral argument, the superior court entered an order granting the State's motion and denying Doe's. The superior court entered a final judgment in accordance with its summary judgment ruling and Doe filed the current appeal.

III. STANDARD OF REVIEW

This case involves questions of law. We review such questions de novo, "adopting the rule of law that is most persuasive in light of precedent, reason, and policy."⁴

IV. DISCUSSION

A. ASORA

ASORA requires sex offenders to register with the Department of Corrections, the Troopers, or the local police within 30 days before their release from incarceration or within one day following conviction if their sentence does not include jail time.⁵ A "sex offender" is a person who has been convicted of specified crimes that vary widely in severity.⁶ Covered crimes include: murder in the course of a sexual offense;⁷ child kidnapping;⁸ forcible rape and rape of a child;⁹ lesser degrees of sexual assault and sexual abuse of a minor,¹⁰ including attempts;¹¹ online enticement and unlawful exploitation of a minor;¹² some types of indecent exposure;¹³ distribution or possession of child pornography and distribution of indecent material to minors;¹⁴ sex trafficking prostitutes under 20 years of age;¹⁵ and patronizing a prostitute under 18 years of age.¹⁶ Some of these crimes encompass consensual sexual acts between adolescents separated by as little as three years of age,¹⁷ and others encompass "sexting" where sometimes no age difference is required.¹⁸

All registrants must disclose their name, address, place of employment, date of birth, information about their conviction, aliases, driver's license number, information about the vehicles they have access to, any identifying physical features, anticipated address changes, electronic addresses, and information about psychological treatment received.¹⁹ Registrants are photographed and fingerprinted.²⁰ They must periodically re-register and update their information: those convicted of multiple or aggravated sex offenses must re-register quarterly; others must re-register annually.²¹ All registration forms must be sworn to before a person authorized to administer oaths.²² A registrant who changes residences or electronic addresses must give notice within one working day.²³

ASORA requires DPS to maintain a central registry of sex offenders that contains the information obtained under ASORA.²⁴ Public access is authorized to offenders' names, aliases, dates of birth, addresses, photographs, physical descriptions, motor vehicle information, places of employment, public information about their convictions and sentences, and whether the offender is in compliance with ASORA or cannot be located.²⁵ DPS posts this information on the internet for public viewing.²⁶ A photograph of each registrant appears under the caption "Sex Offender/Child Kidnapper Registry Entry Detail" followed by the registrant's information described above.²⁷

The legislature made the following findings when enacting ASORA:

(1) [S]ex offenders pose a high risk of reoffending after release from custody;

(2) protecting the public from sex offenders is a primary governmental interest;

(3) the privacy interests of persons convicted of sex offenses are less important than the government's interest in public safety; and

(4) release of certain information about sex offenders to public agencies and the general public will assist in protecting the public safety.^[28]

All sex offenders must register at least every year for 15 years,²⁹ while repeat offenders or offenders guilty of one "aggravated" offense—generally any sex offense more serious than sexual assault in the second degree or sexual abuse of a minor in the second degree³⁰ —must register quarterly for life.³¹ People who have been convicted of crimes under similar laws in other jurisdictions are also sex offenders under ASORA,³² and they must register as such by the next working day of becoming physically present in the state.³³

ASORA's provisions require Doe to register and re-register every three months for the rest of his life as long as he remains in Alaska.³⁴

B. Jurisdiction

Doe argues (1) that "Alaska lacks jurisdiction to impose punitive provisions upon a person whose acts were fully consummated outside of its jurisdiction," (2) that ASORA's registration requirements are punitive, and (3) that Alaska therefore lacks jurisdiction to impose ASORA's requirements on out-of-state offenders. This argument is logical in form, but its validity depends on whether its premises are correct.

The parties mainly focus on the second premise, disputing whether ASORA's requirements are punitive. Doe argues that they are punitive based on our 2008 decision in Doe v. State ( Doe 08 ).³⁵

In Doe 08 we held that the application of ASORA's registration requirements to an offender who was convicted of sex offenses and sentenced nine years before ASORA's effective date violated the ex post facto clause of article I, section 15 of the Alaska Constitution.³⁶ The critical question was "whether ASORA imposes additional punishment on individuals, like Doe, who committed their crimes before ASORA became effective."³⁷ To answer this question we employed a two-part test, called the "intent-effects" test.³⁸ First, we ask whether the legislature intended the law in question to be civil and non-punitive, and thus merely regulatory, or a punishment.³⁹ If the legislative purpose is found to be "not punishment but regulation," the second part of the test requires an inquiry as to "whether the effects of [the] regulation are so punitive" that we must conclude that the statute is punitive in nature.⁴⁰

In Doe 08 we found it unnecessary to address the first step of the intent-effects test because, regardless of the legislature's intent, we found that the effects of ASORA were primarily punitive and therefore concluded that ASORA could not be applied to offenders who committed their crimes before the law's effective date.⁴¹

In deciding whether the effects of ASORA were primarily regulatory or punitive, we analyzed seven factors:

(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."^[42]

The State argues that many of the seven factors we relied on in Doe 08 do not indicate a punitive effect here because they were fully avoidable if Doe had chosen not to move to Alaska. The State also argues that some of the factors point to regulatory effects on other grounds. As to the scienter factor, the State asserts that this is absent because no finding of knowledge of wrongfulness is required to impose a duty to register on an out-of-state offender. Simply moving to the state is the triggering act.⁴³ Further, the State argues, traditional aims of punishment are absent because the State has no interest in punishing out-of-state offenders; rather, the State's interest lies in tracking sex offenders and informing the public about them. Similarly, the factor that asks whether the behavior the statute covers is already a crime comes out differently,...