State v. Ward

Citation869 P.2d 1062,123 Wn.2d 488
Decision Date17 March 1994
Docket NumberNos. 59542-9,59625-5,s. 59542-9
CourtUnited States State Supreme Court of Washington
Parties, 62 USLW 2623 STATE of Washington, Respondent, v. Jeffrey S. WARD, Appellant. John Doe PAROLEE, Appellant, v. STATE ex rel. Norm MALENG, as Prosecuting Attorney of King County, Washington; and King County Respondents, Respondents.
Ronald D. Ness & Associates, Jeffrey J. Jahns, Port Orchard, Shafer, Moen & Bryan, P.S., Robert S. Bryan, Seattle, for appellant

Norm Maleng, King County Prosecutor, Regina Cahan, Deputy, Milwaukee, WI, John W. Ladenburg, Pierce County Prosecutor, Barbara L. Corey-Boulet, Deputy, Dyron Huigens, Deputy, Tacoma, for respondent.

GUY, Justice.

Appellants Jeffrey Ward and John Doe seek review of superior court decisions holding the sex offender registration statute, RCW 9A.44.130-.140, which requires appellants to register as sex offenders with the local county sheriff, does not violate ex post facto, equal protection, or due process provisions under the United States and Washington constitutions. We granted review and affirm both decisions.

BACKGROUND

In 1989, then Governor Booth Gardner formed a task force to study community protection. See Governor's Task Force on Community Protection, Final Report, at I-1 (1989). As a result of the Task Force's recommendations, the Legislature passed the Community Protection Act of 1990. Laws of 1990, ch. 3. Part 4 of the Act provides for the registration The legislature finds that sex offenders often pose a high risk of reoffense, and that law enforcement's efforts to protect their communities, conduct investigations, and quickly apprehend offenders who commit sex offenses, are impaired by the lack of information available to law enforcement agencies about convicted sex offenders who live within the law enforcement agency's jurisdiction. Therefore, this state's policy is to assist local law enforcement agencies' efforts to protect their communities by regulating sex offenders by requiring sex offenders register with local law enforcement agencies as provided in [RCW 9A.44.130].

of adult and juvenile sex offenders. Laws of 1990, ch. 3, §§ 401-09. The Legislature stated that its purpose in requiring registration was to assist local law enforcement, declaring:

Laws of 1990, ch. 3, § 401. The requirement for sex offender registration, codified at RCW 9A.44.130-.140, became effective February 28, 1990. RCW 18.155.902(1). In 1991, the Legislature amended the statute to clarify and amend the deadlines for sex offenders to register. Laws of 1991, ch. 274, § 2.

The statute requires all persons residing in Washington who have been convicted of any sex offense, as defined by RCW 9.94A.030(29) 1, to register with the county sheriff in the county where the person resides. RCW 9A.44.130(1). When registering, the person must provide name, address, date and place of birth, place of employment, crime for which convicted, date and place of conviction, aliases used, and social security number. RCW 9A.44.130(2). Any person required to register under the statute who changes residence must either send written notice of the change of address to the county sheriff, if the person relocates within the same county, or re-register with the county sheriff in the new county, within 10 days of establishing the new residence. RCW 9A.44.130(4). The county sheriff must also obtain a photograph of the individual and a copy of the individual's fingerprints. RCW 9A.44.130(5). The county Each of the appellants was convicted of a sexual offense as defined in RCW 9.94A.030(29). The essential facts of each appellant's case are as follows:

sheriff must forward the information and fingerprints obtained to the Washington State Patrol for inclusion in a central registry of sex offenders. RCW 43.43.540. A person who knowingly fails to register is guilty of either a class C felony or gross misdemeanor, depending on the severity of the prior conviction. RCW 9A.44.130(7).

Jeffrey S. Ward. On March 18, 1988, Jeffrey S. Ward was convicted of first degree statutory rape, which he committed in 1987, and was sentenced to 41 months in the Department of Corrections. Ward was released from custody on April 3, 1990. On May 7, 1990, Ward was advised by his community corrections officer that he was required to register as a sex offender pursuant to RCW 9A.44.130. Ward failed to register. On August 31, 1990, the Pierce County Prosecutor's Office filed an information charging Ward with failure to register.

Ward moved to dismiss the charge, claiming the sex offender registration statute violated constitutional prohibitions against ex post facto laws. The Pierce County Superior Court denied Ward's motion, holding that the sex offender registration statute, retroactively applied to Ward, did not violate constitutional prohibitions against ex post facto laws because it is not punitive in purpose or effect. The court found Ward guilty of failing to register as a sex offender, sentenced him to 30 days' confinement, and assessed a fine of $178. Ward's sentence was stayed pending appeal. Ward appealed to the Court of Appeals, which certified Ward's appeal to this court pursuant to RAP 4.2. We accepted certification.

John Doe Parolee 2. In 1980, John Doe pleaded guilty to and was convicted of first degree rape. The rape occurred in 1979. Doe was paroled on active supervision in late 1987, was conditionally released from supervision on June 21 Doe commenced an action in King County Superior Court pursuant to RCW 9A.44.140(2), which provides that a person having a duty to register under RCW 9A.44.130 may petition the superior court to be relieved of that duty. Doe requested relief from the duty to register on the grounds that the statute as applied to him was an unconstitutional violation of the ex post facto, equal protection, and due process clauses of the federal and state constitutions. The King County Superior Court denied Doe's summary judgment motion and dismissed the action. The court concluded that the statute was applicable to Doe and did not violate ex post facto, equal protection, or due process clauses. Doe subsequently registered as a sex offender with the King County Sheriff. Doe appealed the Superior Court's decision to the Court of Appeals, and subsequently moved to transfer his appeal to this court and to consolidate it with State v. Ward. We granted Doe's motion.

1991, and received his final discharge on September 1, 1992. On June 28, 1990, Doe received written notification from the Department of Corrections that he was required to register as a sex offender within 30 days. Because Doe had been convicted of a class A felony, his notice advised him that his registration obligation was for life. The Department also advised Doe that if he failed to register by the deadline, his parole officer would report Doe as having committed the felony of failing to register. Doe's parole would then be revoked and he would be returned to prison.

ISSUE

The central issue before us is whether the sex offender registration statute, RCW 9A.44.130-140, retroactively applied to Ward and Doe, violates the prohibitions against ex post facto laws under the federal and state constitutions. We hold that the statute's requirement to register as a sex offender does not constitute punishment and therefore does not violate ex post facto prohibitions. We also conclude that the statute does not violate appellant Doe's equal protection or due process rights under the federal and state constitutions.

ANALYSIS

Ward and Doe claim that the requirement to register as sex offenders under a statute that had not yet been enacted at the time they committed their offenses violates the prohibition against ex post facto laws of both the federal and state constitutions. In addition, Doe claims that the statute as applied to him violates the equal protection and due process clauses of the federal and state constitutions.

While appellants claim the sex offender registration statute violates provisions of both the state and federal constitutions, there is no suggestion that analysis under both constitutions should not be the same.

A statute is presumed constitutional and the party challenging it has the burden to prove it is unconstitutional beyond a reasonable doubt. Diversified Inv. Partnership v. DSHS, 113 Wash.2d 19, 23, 775 P.2d 947 (1989); State v. Brayman, 110 Wash.2d 183, 193, 751 P.2d 294 (1988).

I Ex Post Facto Clause

The ex post facto clauses of the federal and state constitutions forbid the State from enacting any law which imposes punishment for an act which was not punishable when committed or increases the quantum of punishment annexed to the crime when it was committed. U.S. Const. art. 1, § 10; Const. art. 1, § 23; see Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981); In re Powell, 117 Wash.2d 175, 184, 814 P.2d 635 (1991). As we noted in In re Powell, "[c]ritical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." In re Powell, at 184-185, 814 P.2d 635 (citing Weaver, 450 U.S. at 30, 101 S.Ct. at 965).

In Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798), the United States Supreme Court established the framework for ex post facto analysis. This framework In State v. Edwards, 104 Wash.2d 63, 701 P.2d 508 (1985), we adopted the Calder Court's framework for ex post facto analysis. Edwards, at 70-71, 701 P.2d 508 (citing Calder v. Bull, supra, 3 U.S. at 390, 1 L.Ed. 648). See also State v. Handran, 113 Wash.2d 11, 14, 775 P.2d 453 (1989). However, we noted in Edwards, and reaffirmed in Handran, 113 Wash.2d at 14, 775 P.2d 453, that legislation further violates ex post facto prohibitions if it is made retroactive and disadvantages the offender. Edwards, at 71, 701...

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