Rowe v. Burton, A94-206 Civil.

• Decision Date: 27 July 1994
• Docket Number: No. A94-206 Civil.,A94-206 Civil.
• Citation: 884 F. Supp. 1372
• Parties: James ROWE, Jane Rowe, John Doe, Plaintiffs, v. Richard BURTON, Commissioner, Alaska Dept. of Public Safety, and Bruce M. Botelho, Alaska Attorney General, Defendants.
• Court: U.S. District Court — District of Alaska

884 F. Supp. 1372

James ROWE, Jane Rowe, John Doe, Plaintiffs, v. Richard BURTON, Commissioner, Alaska Dept. of Public Safety, and Bruce M. Botelho, Alaska Attorney General, Defendants.

No. A94-206 Civil.

United States District Court, D. Alaska.

July 27, 1994.

COPYRIGHT MATERIAL OMITTED

Darryl L. Thompson, for plaintiffs James Rowe and Jane Rowe.

Verne E. Rupright, Stepovich, Kennelly & Stepovich, for plaintiff John Doe.

James L. Hanley, State of Alaska Atty. Gen. Office, Sp. Prosecution & Appeals, for defendants Richard Burton, Com'r, Alaska Dept. of Public Safety and Bruce M. Botelho, Alaska Atty. Gen.

Suzanne H. Lombardi, Faulkner, Banfield, Doogan & Holmes, for Alaska Network on Domestic Violence & Sexual Assault.

ORDER FROM CHAMBERS

SEDWICK, District Judge.

INTRODUCTION

In 1994 Alaska enacted a law requiring persons who are "sex offenders" to register with police authorities. The law, ch. 41 SLA 1994 (hereinafter "the Registration Act"), will become effective on August 10, 1994.¹ A sex offender is defined as one who has been convicted of a "sex offense" in Alaska or elsewhere. § 4 ch. 41 SLA 1994. A sex offense is a violation of any of several specified sections of Alaska law, or a similar law in another jurisdiction.²Id. The specified laws are sexual assault of any degree,³ all degrees of sexual abuse of a minor save the fourth degree,⁴ incest,⁵ unlawful exploitation of a minor⁶, distributing child pornography,⁷ and promoting prostitution in the first degree.⁸

Two men who pled no contest to sex offenses and the wife of one, have filed the instant action challenging the law under the United States and Alaska constitutions. The court has before it plaintiffs' motion for preliminary injunction as well as a motion to allow plaintiffs to proceed under pseudonyms.⁹ The motions have been fully briefed. Oral argument was heard on June 29, 1994.

DISCUSSION

I. PRELIMINARY INJUNCTION

A. Standards For Injunctive Relief.

Preliminary injunctive relief is appropriate when a plaintiff establishes (1) probable success on the merits and irreparable harm if relief is denied, or (2) that there are serious questions on the merits and the balance of hardship tips sharply in favor of plaintiff. Rent-A-Center, Inc. v. Canyon Television and Appliance Rental, Inc., 944 F.2d 597, 602 (9th Cir.1991). The alternatives illuminate what is really a single continuum of concern which evaluates two factors that must always be considered: "The likelihood of the plaintiff's success on the merits; and the relative balance of potential hardships to the plaintiff, defendant, and public." State of Alaska v. Native Village of Venetie, 856 F.2d 1384, 1389 (9th Cir.1988). The higher a plaintiff's probability of success, the less the balance of hardship need tip in plaintiff's favor to support issuance of an injunction. Id.

B. Probability Of Success On The Merits.

Plaintiffs challenge the Registration Act on the grounds that it is an ex post facto law, that its enforcement against the plaintiff sex offenders violates their plea bargain contracts, that the Registration Act violates the Fourth Amendment prohibition of unreasonable searches and seizures, and that it violates plaintiffs' rights to privacy. To assess the plaintiffs' probability of success, it is first necessary to examine the Registration Act.

1. The Registration Act

Alaska House Bill 69, requiring convicted sex offenders to register with local authorities after their release, was introduced in the Alaska legislature in response to alarming statistics showing that those convicted of sex offenses were likely to commit further crimes upon release. The committee minutes on the bill also include testimony that, unlike other criminals, sex offenders do not become less dangerous over time.¹⁰ Section 1 of the Registration Act sets out the legislative findings upon which the Registration Act rests:

LEGISLATIVE FINDINGS. The legislature finds that

(1) sex 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.

§ 1 ch. 41 SLA 1994.

A person who has been convicted of a violation of Alaska law designated a sex offense in the Registration Act, or a similar violation in another jurisdiction, is required to register with the state trooper post or municipal police department closest to the offender's place of residence within seven days following release from incarceration, or within fourteen days of becoming physically present in Alaska.¹¹ To comply with the registration requirement, the sex offender must complete a form which includes the offender's name, address, place of employment, date of birth, each conviction of a registrable sex offense, date of each conviction, place and court where convicted, all aliases, and a driver's license number.¹² In addition, the sex offender must allow the police to obtain a complete set of fingerprints and a photograph.¹³ When a registered sex offender's address changes, the offender must provide written notice within 10 days.¹⁴

In addition, for the duration of the duty to register, the sex offender must provide an annual statement updating all the information required by the original form. The registration duty's duration continues for the life of the offender in the case of an offender with two or more convictions, but ends 15 years after an offender's unconditional discharge from a single sex offense conviction.¹⁵ Section 2 of the Registration Act makes failure to register a Class A misdemeanor.¹⁶

The Registration Act creates a central registry of sex offenders to be maintained by the Department of Public Safety.¹⁷ The law requires the Department to adopt regulations allowing the sex offender to review registration information and to request corrections in the information.¹⁸ The Registration Act makes some information in the central registry confidential, but allows for public disclosure of much of the information pursuant to regulations to be adopted by the Department of Public Safety. Information which the regulations may allow to be disclosed consists of the offender's name, address, birthdate, photograph, and place of employment.¹⁹ Also subject to disclosure is information regarding the underlying reason for registration, including the crime of conviction (except that in cases of incest the crime must be described only as a "felony sexual abuse of a minor") and the date, place, and court of conviction, together with the length of sentence.²⁰

2. Ex post facto considerations

Article 1, § 10 of the Constitution denies states the power to enact ex post facto laws, which are laws punishing people for acts done before the law's passage. The Constitutional provision forbids "Any law `which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.'" Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981) (citation omitted). Plaintiffs characterize the Registration Act as a law which punishes sex offenders for their past conduct. Defendants characterize it as a proper exercise of the state's police power which does not punish past offenses, but regulates present conduct.

The Alaska legislature explained its purpose in passing the Registration Act in terms of providing protection to the public from persons thought to pose an unusual risk. Yet, the legislature's expressed purpose is not necessarily the measure of the Registration Act's character. The test is whether the questioned statute's design and effect evidence a purpose to regulate rather than to punish. As the court of appeals recently instructed in United States v. Huss, 7 F.3d 1444, 1447-8 (9th Cir.1993):

A legislature may not insulate itself from an ex post facto challenge simply by asserting that a statute's purpose is to regulate rather than punish prior conduct. The overall design and effect of the statute must bear out the non-punitive intent. See United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980).

In Huss an Oregon law prohibiting felons from possessing a long gun was held not to be an ex post facto law under the United States Constitution. Convicted for burglary under Oregon law, Huss was prohibited by statutes antedating his conviction from carrying all guns other than long guns. Huss argued that a post-conviction amendment prohibiting his possession of long guns increased his punishment, and, therefore, was an ex post facto law. The court found that Oregon prohibited felons from possessing long guns not as punishment, but in an effort to protect its citizens "by restricting firearms possession from those likely to engage in dangerous conduct." Id. at 1448. In reaching this conclusion, the Huss court elaborated on how to determine whether a statute is punitive in design:

To negate any inference of a punitive design, the past conduct must be relevant to the regulated activity, and "if the past conduct ... is not the kind of conduct which indicates unfitness to participate in the activity, it will be assumed ... the purpose of the statute is to impose an additional penalty." Cases v. United States, 131 F.2d 916, 921 (1st Cir.1942), cert. denied, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 (1943). If, on the other hand, "the past conduct can reasonably be said to indicate unfitness to engage in the future activity the assumption will be otherwise."

Id. at 1448.

Plaintiffs argue that codification of many of the provisions in the Registration Act within Title 12 of the Alaska Statutes entitled "Criminal Procedure" constitutes evidence that the law is punitive in...