R.W. v. Sanders, No. SC 85652.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Richard B. Teitelman
• Citation: 168 S.W.3d 65
• Parties: In re: R.W., Appellant, v. Michael SANDERS, et al., Respondents.
• Docket Number: No. SC 85652.
• Decision Date: 11 January 2005

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168 S.W.3d 65 In re: R.W., Appellant,
v.
Michael SANDERS, et al., Respondents. No. SC 85652. Supreme Court of Missouri, En Banc. January 11, 2005.

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John R. Cullom, Kansas City, MO, for Appellant.

Lisa Noel Gentleman, Kansas City, MO, for Respondents.

Jeremiah W. (Jay) Nixon, Atty. Gen., Michael Pritchett, Asst. Atty. Gen., Jefferson City, MO, Amicus Curiae.

RICHARD B. TEITELMAN, Judge.

R.W. filed a petition for declaratory judgment and injunctive relief to prevent enforcement of Missouri's sex offender registration statutes, section 589.400, et seq.¹ The circuit court denied relief. In this appeal, R.W. argues that the registration statute does not apply to offenders who receive a suspended imposition of sentence, conflicts with the section 610.105 requirement that records pertaining to a suspended imposition of sentence case shall be closed, and constitutes an invalid ex post facto law. The judgment is affirmed.

BACKGROUND

All fifty states, the District of Columbia, and the federal government have adopted some form of sex offender registration and community notification statutes premised upon what is commonly referred to as "Megan's Law." See, Wayne A. Logan, Liberty Interests in the Preventive State: Procedural Due Process and Sex Offender Community Notification Laws, 89 J. Crim L. & Criminology 1167, 1171 (1999). Missouri codified its version of Megan's Law in sections 589.400 to 589.425. The statutes became effective on January 1, 1995, and require "[a]ny person who, since July 1, 1979, has been or is hereafter convicted of, been found guilty of, or pled guilty to committing, or attempting to commit, an offense of chapter 566" to register with the chief law enforcement officer of the county of the offender's residence. Section 589.400. Registrants are required to provide information to authorities, including their name, address, social security number, telephone number, place of employment, enrollment with any institution of higher learning, the date and place of conviction or plea, the age and gender of the victim at the time of the offense, fingerprints and a photograph. Section 589.407. The public may request from the county's chief law enforcement official the names, addresses and crimes for which offenders are registered. Section 589.417. If the victim was under 18 years of age, the offender must report in person to the county law enforcement agency every 90 days in order to verify the information provided. Section 589.414.4.

Registration is a lifetime requirement unless all offenses requiring registration are reversed, vacated, set aside or the offender is pardoned. Section 589.400.3. Failure to register is a class A misdemeanor, and any subsequent failure to register is a class D felony. Section 589.425.

On March 30, 1994, R.W. was charged with one count of sodomy and one count of

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sexual assault in the first degree. The conduct involved a minor. On February 9, 1995, after section 589.400 became effective, R.W. pleaded guilty to the sexual assault. The court suspended imposition of sentence, and R.W. was placed on probation for five years. As a condition of his probation, R.W. was required to register as a sex offender under section 589.400.

After R.W. completed his probation, he ceased registering as a sex offender. In April 2003, the Jackson County sheriff's office requested that R.W. register as sex offender and renew his registration every 90 days. R.W. declined to register.

R.W. filed a petition for declaratory judgment and injunctive relief to prevent enforcement of the registration statutes and the criminal penalties attending the failure to register. The circuit court denied relief. On appeal, R.W. argues, inter alia, that the sex offender registration statutes as applied to him are unconstitutional. He raises three points on appeal.

ANALYSIS

The standard of review in a declaratory judgment case is the same as in any other court-tried case. Levinson v. State, 104 S.W.3d 409, 411 (Mo. banc 2003). The judgment will be affirmed unless there is no substantial evidence to support the judgment, the judgment is against the weight of the evidence, or the judgment erroneously declares or applies the law. Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 393 (Mo. banc 2001).

I. Ex Post Facto

R.W. contends that the registration requirement, as applied to him, is an invalid ex post facto law because it constitutes a new penalty for a crime he committed before the registration requirements were enacted. In order to prevail on this claim, R.W. must overcome the presumption that statutes are constitutional. Westin Crown Plaza Hotel Co. v. King, 664 S.W.2d 2, 5 (Mo. banc 1984). The registration statutes will be upheld unless they "clearly and undoubtedly" violate constitutional limitations. In re Marriage of Kohring, 999 S.W.2d 228, 231 (Mo. banc 1999). As the party raising the challenge, R.W. bears the burden of demonstrating that the statute is unconstitutional. C.C. Dillon Co. v. City of Eureka, 12 S.W.3d 322, 327 (Mo. banc 2000).

The United States and Missouri constitutions both prohibit ex post facto laws. A constitutionally prohibited ex post facto law is one that "provides for punishment for an act that was not punishable when it was committed or that imposes an additional punishment to that in effect at the time the act was committed." Cooper v. Mo. Bd. of Prob. & Parole, 866 S.W.2d 135, 137-38 (Mo. banc 1993).

The registration statutes operate retrospectively in this case. R.W. committed the crime prior to the enactment of registration statutes and, because of the subsequent enactment of the statutes, is required to register as a sex offender. Accordingly, the issue is whether the registration requirements constitute a punishment.

A two-stage inquiry determines whether a retrospective statute constitutes an invalid ex post facto punishment or a valid, non-punitive civil regulation. If registration statutes were intended to establish a punishment, the inquiry ends and an ex post facto violation is established. Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (holding that Alaska's sex offender registration statute is not an invalid ex post facto law because it is civil and non-punitive). If the registration statutes are intended to establish a non-punitive, civil regulatory system, the

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inquiry proceeds to a determination of whether the registration statutes are sufficiently punitive in effect so as to negate the General Assembly's intent to enact a non-punitive civil sex offender registration program. Id.

The Missouri registration statutes do not clearly express the General Assembly's intent to make the registration statutes civil or criminal. There is evidence that the registration statutes were intended to be criminal and punitive insofar as the statutes are located in Title XXXVIII dealing with "Crimes and Punishment." However, "the location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one." Smith, 538 U.S. at 94, 123 S.Ct. 1140, (quoting United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984)). Furthermore, this Court has previously stated that the "obvious legislative intent for enacting section 589.400 was to protect children from violence at the hands of sex offenders." J.S. v. Beaird, 28 S.W.3d 875, 876 (Mo.2000). When a statute is "an incident of the State's power to protect the...