Reimers v. State

• Decision Date: 27 June 2011
• Docket Number: No. 107.440,Division No. 4.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma,107.440
• Citation: 2011 OK CIV APP 83,257 P.3d 416
• Parties: Erick L. REIMERS, Plaintiff/Appellant,v.The STATE of Oklahoma, ex rel. DEPARTMENT OF CORRECTIONS and The City of Bethany, Defendants/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

257 P.3d 416

2011 OK CIV APP 83

Erick L. REIMERS, Plaintiff/Appellant,

v.The STATE of Oklahoma, ex rel. DEPARTMENT OF CORRECTIONS and The City of Bethany, Defendants/Appellees.

No. 107.440

Released for Publication by Order of the Court of Civil Appeals of Oklahoma

Division No. 4.

Court of Civil Appeals of Oklahoma, Division No. 4.

Feb. 14, 2011.Rehearing Denied April 26, 2011.Certiorari Dismissed June 27, 2011.

Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Patricia G. Parrish, Trial Judge.REVERSED.Michael S. “Mickey” Homsey, Terry R. McMillan, Homsey & Associates, Oklahoma City, Oklahoma, for Appellant.David A. Davis, Oklahoma City, Oklahoma, for Appellee City of Bethany.E. Scott Pruitt, Office of the Attorney General, John D. Hadden, Assistant Attorney General, Oklahoma City, Oklahoma, for Appellee State of Oklahoma Department of Corrections.JERRY L. GOODMAN, Presiding Judge.

¶ 1 Plaintiff Erick L. Reimers appeals two trial court orders entered in separate cases. Each order is final and presents the same question for our review. Plaintiff was convicted of a sex crime in 1992 and completed all registration requirements of the Oklahoma Sex Offender Registration Act (OSORA), 57 O.S. Supp.1991, §§ 581 through 587 (now 57 O.S.2001 and Supp. 2009, §§ 581 through 590.2), then in effect. The question before this Court is whether Plaintiff must continue to register as a sex offender pursuant to subsequent amendments to OSORA that became effective after he completed his sentence?

¶ 2 We answer the question in the negative, but in doing so we need not address Plaintiff's argument that the amended statute is an unconstitutional ex post facto law. We hold that under the specific facts of this case, OSORA does not apply to this Plaintiff because the amendments are substantive in nature and not merely procedural. Finding no legislative intent to retroactively apply a substantive change in the law, Plaintiff is entitled to the relief sought.

¶ 3 In this appeal, No. 107,440, we address Plaintiff's request for injunctive and declaratory relief. In the second appeal, No. 108,070, issued this date, we address Plaintiff's request for monetary damages arising from attempts to enforce OSORA's amendments against him.

PROCEDURAL BACKGROUND

¶ 4 Plaintiff filed a petition in Oklahoma County District Court on March 18, 2009, in case number CJ–2009–2610. He sought to temporarily and permanently enjoin defendants Department of Corrections (DOC) and City of Bethany (COB) from enforcing provisions of OSORA. He also sought to prevent the publication of any information regarding his status as a registered sex offender and sought a declaration that OSORA's amendments were an ex post facto law or bill of attainder, and therefore unconstitutional.

¶ 5 DOC and COB filed motions to dismiss Plaintiff's claim on procedural and substantive grounds. At the hearing on those motions the parties' arguments mainly addressed the substantive issue, i.e., whether the amendments to OSORA created ex post facto laws. Subsequently, the trial court dismissed Plaintiff's suit without stating its reason. That order, filed July 28, 2009, is the subject of this opinion,

¶ 6 On September 1, 2009, Plaintiff filed a second suit in Oklahoma County, Case No. CJ–2009–8268, in which he sued DOC, COB, and Sharon Cadle, a police officer employed by COB (collectively, Defendants). Plaintiff again alleged the amendments to OSORA created unconstitutional ex post facto laws, and alleged various tort claims against all Defendants. All of the tort claims arose from Defendants' attempts to enforce the amendments to OSORA's registration requirements against Plaintiff. A motion to dismiss was filed, which the trial court treated as a motion for summary judgment. After a hearing it granted and entered judgment in favor of all Defendants. That order, filed February 6, 2010, was appealed in No. 108,070, which we treat as a companion case and issue a separate opinion on this date.

FACTS

¶ 7 Plaintiff's petition states that in 1992 he was charged with indecent exposure pursuant to 21 O.S.1991 and Supp.1996, § 1021(A)(1), (now 21 O.S.2001 and Supp. 2008, § 1021(A)(1)). He pled guilty to the charge and received a five-year suspended sentence. He successfully completed all the terms and conditions of his five-year sentence including the successful completion of DOC's sex offender treatment program.

¶ 8 At the time of his conviction, 57 O.S.Supp.1989, § 503(C) required convicted sex offenders who had successfully completed DOC's sex offender treatment program to register with DOC (but not with a local municipality) for two years following their date of discharge from DOC supervision. Repeat offenders, and those who did not complete DOC's treatment program, were required to register for ten years.

¶ 9 Plaintiff completed his sentence in 1997, and registered as a sex offender for two more years. He has not registered since 1999. He moved to Bethany, Oklahoma, and lives in a home located less than 2,000 feet from a school. The subsequently amended § 590 of OSORA prohibits persons subject to its provisions from living within 2,000 feet of a school.

¶ 10 In 1997, the year Plaintiff completed his sentence, and the first year he registered as an offender, OSORA was amended to require all offenders to register with DOC for ten years, and additionally, to register for five years with the local law enforcement agency having jurisdiction over an offender's intended place of residence. The provisions reducing the length of registration for completion of an offender treatment program were stricken.

¶ 11 In its current version, § 583(C)(1) and (D)(1) each require a level one offender (such as Plaintiff) to register with DOC and local law enforcement for 15 years following the completion of their sentence. The length of time required to register is now dependent upon the “level” of offence. A level one designation is given to an offender who is considered a lower risk or danger to the community and because he is not likely to repeat such offense. A level three classification represents a higher risk or danger to the community because the offender is likely to commit repeated offences. See, 57 O.S.2001 and Supp. 2009, § 582.5(C).

¶ 12 On September 17, 2007, Plaintiff was charged with failing to register as a sex offender, but this charge was dismissed on January 24, 2008.¹ On January 25, 2008, a judge of the Oklahoma County District Court entered an “Order Clarifying Sex Offender Status” in Plaintiff's original criminal case which declared Plaintiff's requirement to register as a sex offender terminated in 1999 when two years elapsed following the completion of his sentence. ²

¶ 13 On April 14, 2008, Cadle, a police department employee of COB, mailed Plaintiff a letter demanding he move from his residence and register as a sex offender or face another charge of failure to register.

¶ 14 Plaintiff refused these demands, hired counsel, and demanded all information regarding his status be removed from COB and DOC databases, citing as authority the trial court's 2008 Order Clarifying Status. Plaintiff also filed an administrative grievance with DOC on May 12, 2008. This grievance was denied causing Plaintiff to pursue a timely administrative appeal of the denial.

¶ 15 Plaintiff's demands were denied. DOC notified Plaintiff by letter that the registration requirements applied to him and that DOC believed the trial court's Order Clarifying Status was void because registration was a civil matter and administered by DOC, not by the courts, and as a result, the trial court had no subject matter jurisdiction to enter the order.

¶ 16 On May 29, 2008, COB's employee, Cadle, submitted an affidavit of probable cause with the Oklahoma County District Attorney's office causing the latter to file a second charge against Plaintiff for failing to register and for living within 2,000 feet of a school. On January 13, 2009, these charges were dismissed when Plaintiff agreed to register. In a letter from another counsel to the District Attorney dated April 17, 2008, Plaintiff agreed to register and to move his residence, asking for six weeks in which to do so.

¶ 17 However, he did not do so. Instead, Plaintiff filed suit, seeking declaratory and injunctive relief requesting COB and DOC be enjoined from disseminating any information about him and that OSORA, as amended, be found unconstitutional because it was either an ex post facto law or bill of attainder.

¶ 18 The trial court held a hearing on April 30, 2009, taking the matter under advisement. Its order, filed July 23, 2009, reflects that the parties presented their positions on the undisputed facts and the issue was a purely legal one. It granted DOC's motion to dismiss and sustained COB's objections.

¶ 19 The trial court's letter ruling states the court found Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), and Oklahoma Attorney General Opinion 2004 AG 24, persuasive. These authorities addressed the ex post facto issue. Responding to Plaintiff's request for findings of fact and conclusions of law, the trial court, lacking independent recollection of the rulings made at the hearing, adopted the transcript of the April 30 hearing as its findings. The order concluded by denying Plaintiff's petition for injunction, declaratory relief, or a restraining order, and entered judgment for DOC and COB, with costs awarded to Defendants. Plaintiff appeals.

STANDARD OF REVIEW

¶ 20 The trial court granted DOC's motion to dismiss. A motion to dismiss for failure to state a claim will not be granted, nor will a petition be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Frazier v. Bryan Mem'l Hosp. Auth., 1989 OK 73, ¶ 13, 775 P.2d 281, 287. The review of a motion to dismiss involves a de novo...