This case, or should I say, cases, took place over 6-7 years in court. During that time, to complicate matters, the legislature made other changes in laws. Please read carefully esp. the highlighted parts below.3-5-2013 Maine:
Doe I et al v Williams
2013 ME 24
John Does [litigants] I, III, IV, V, VI, VII, VIII, X, XIII, XVI, XVIII, XXIV, and XLIII, joined by John Does XIX1 and XXIII, appeal from a summary judgment entered in the Superior Court (Kennebec County, Murphy, J.) in favor of numerous State officials on the parties' cross-motions for summary judgment.
The Does challenge the constitutionality of Maine's Sex Offender Registration and Notification Act of 1999 (SORNA of 1999), 34-A M.R.S. §§ 11201-11256 (2012). We affirm the trial court's judgment, concluding that SORNA of 1999 as amended following our decision in State v. Letalien, 2009 ME 130, 985 A.2d 4, does not violate the constitutional rights of the litigants before us.
Given the time it took to resolve this case (6-7 years) the only litigants left at the time of the decision were: John Does III, X, XIX, XXIII, and XLIII. None of these were eligible for the relief provided by the 2009 Letalien decision. There is no doubt this is a confusing case.
I. BACKGROUND2
[¶ 2] John Doe I was previously before us in Doe v. District Attorney, 2007 ME 139, 932 A.2d 552. John Doe I pleaded guilty to and was convicted of unlawful sexual contact with a family member, id. ¶ 2, and in 1985 was sentenced to five years' imprisonment with all but sixty days suspended and two years' probation. He has not been convicted of any sex offenses since.
[¶ 3] In 2005, the Legislature amended SORNA of 1999 to apply retroactively to all sex offenders sentenced on or after January 1, 1982. P.L. 2005, ch. 423, § 1 (effective Sept. 17, 2005) (codified at 34-A M.R.S. § 11202(1) (2012)); see Doe, 2007 ME 139, ¶ 14, 932 A.2d 552.
John Doe I sued several State officials in their official capacities, arguing that the retroactive application of SORNA of 1999 violated his rights to procedural and substantive due process, equal protection, and a civil jury trial, pursuant to the Maine and United States Constitutions. Doe, 2007 ME 139, ¶ 5, 932 A.2d 552. Upon the State officials' motion to dismiss, the Superior Court (Kennebec County, Studstrup, J.) dismissed John Doe I's complaint for failure to state a claim upon which relief could be granted. Id. ¶ 1.
John Doe I appealed, and we concluded that (1) further factual development was required to determine whether SORNA of 1999 was an unconstitutional ex post facto law3 as applied to him,4 and (2) he should not have been foreclosed from pursuing his other theories of relief. Id. ¶¶ 1, 36-37.
We then remanded the case to the trial court for further proceedings on those issues. Id. ¶ 37. On remand, John Doe I's case was consolidated with cases brought by other convicted sex offenders who were also challenging the retroactive application of SORNA of 1999.
[¶ 4] In 2009, the Legislature created an exception from the duty to register for sex offenders meeting certain criteria who were sentenced on or after January 1, 1982, and before June 30, 1992. P.L. 2009, ch. 365, § B-3 (effective Sept. 12, 2009) (codified at 34-A M.R.S. § 11202-A(1) (2009)).5 Sex offenders fall within the exception if, among other criteria, their underlying convictions did not include more than one Class A sex offense or sexually violent offense, they had no prior sex offense convictions, and they had no subsequent convictions for crimes punishable by imprisonment of one year or more. 34-A M.R.S. § 11202-A(1)(A)-(F). Because of the newly enacted exception, many of the John Does became eligible for relief from the duty to register and withdrew from the litigation. Some Does who were eligible for relief, however, chose to continue with the litigation along with the Does who were ineligible for relief.
[¶ 5] We decided Letalien shortly after 34-A M.R.S. § 11202-A(1) became effective. Pursuant to the Sex Offender Registration Act of 1995, Letalien's sentence included a requirement that he register for fifteen years on the State's sex offender registry; the sentence provided that after five years Letalien could seek a waiver "upon a finding that [he] `ha[d] shown a reasonable likelihood that registration is no longer necessary and waiver of the registration requirement is appropriate.'" Letalien, 2009 ME 130, ¶ 5, 985 A.2d 4 (quoting 34-A M.R.S.A § 11121(6)(C) (Supp. 1996)). While Letalien was on probation, the Legislature enacted SORNA of 1999, which required him to register for life, prevented him from seeking a waiver, and established additional reporting requirements. Id. ¶¶ 6-8 (citing P.L. 1999, ch. 437, § 2 (effective Sept. 18, 1999) (codified at 34-A M.R.S.A. §§ 11201-11252 (Pamph. 1999))). Letalien challenged SORNA of 1999 as unconstitutional under the Ex Post Facto Clauses of the United States and Maine Constitutions. Id. ¶ 1. We concluded that SORNA of 1999 "impose[d] an ex post facto punishment as to offenders sentenced in the years before the effective date of [the statute] for whom registration was a required part of their sentence and who were subsequently made subject to the more burdensome requirements." Id.
[¶ 6] In response to the Letalien decision, the Legislature amended SORNA of 1999 by enacting P.L. 2009, ch. 570 (effective Mar. 30, 2010) (codified at 34-A M.R.S. §§ 11202-A, 11222, 11225-A (2012)). The amendments extended the exception from registration provided by P.L. 2009, ch. 365, § B-3, making it available to qualifying offenders sentenced through September 18, 1999, the effective date of SORNA of 1999.6 See P.L. 2004, ch. 570, § 1. The amendments also changed the reporting requirements for offenders' registration information, such as residence and place of employment. P.L. 2004, ch. 570, § 4. Ten-year registrants are now subject to annual verification in writing and in-person verification once every five years. 34-A M.R.S. § 11222(4-A). Lifetime registrants are now subject to quarterly verification in writing and in-person verification once every five years. Id. § 11222(4-B). Additionally, if a law enforcement agency with jurisdiction over a registrant or the State Bureau of Identification has "reason to believe the [registrant's] appearance has changed significantly," the agency or Bureau may instruct the registrant to appear in person with a current photograph or to allow a new photograph to be taken, or may instruct the registrant to submit a new photograph without appearing in person. Id. § 11222(4-A)(C)(1)-(2), (4-B)(C)(1)-(2).
[¶ 7] John Does I, IV, V,7 VI, VIII, and XVI were initially required to register, but successfully petitioned to be removed. John Doe XXIV was also required to register, but he obtained a temporary restraining order preventing his information from being publicly posted; he later successfully petitioned for removal from the registry. John Does VII, XIII, and XVIII obtained temporary restraining orders relieving them from registering, and they were also statutorily relieved of the registration requirement. John Does III, X, XIX, XXIII, and XLIII8 remain on the registry and have viable claims.
Here we see the various group of litigants (registrants).
... ... ...
[¶ 21] The two remaining exceptions to mootness, for issues of great public concern and issues capable of repetition, are also unavailable to the Does who have been removed from the registry. Although it is true that the application of SORNA of 1999 is an issue of great public concern that is capable of repetition, the issue will not evade review because the cases of Does III, X, XIX, XXIII, and XLIII, who remain on the registry, are decided today. Therefore, the claims of the Does who had been removed from the registry are moot.
... ... ...
IV. CONCLUSION
[¶ 84] For the foregoing reasons, we affirm the trial court's decision that SORNA of 1999 is not an unconstitutional ex post facto law. The Does' other constitutional and statutory challenges are unpersuasive.
The court's decision only applies these Does, that is the key: John Does III, X, XIX, XXIII, and XLIII remain on the registry and have viable claims. AND, as to them the registry is NOT an ex post facto violation.
See Article: Court upholds sex offender registration for those convicted before 1999
State copy of decision.
Important notes made by court during decision:
[¶ 87] There are several reasons why SORNA of 1999 is punishment and violates the United States Constitution. A look at some of the Mendoza-Martinez factors shows that many of them weigh in favor of finding the statute punitive.
A. Affirmative Disability or Restraint
[¶ 88] We determined in State v. Letalien that "SORNA of 1999 [prior to the ch. 570 amendment] impose[d] a disability or restraint that is neither minor nor indirect" because "quarterly, in-person verification of identity and location of home, school, and employment at a local police station, including fingerprinting and the submission of a photograph, for the remainder of one's life, is undoubtedly a form of significant supervision by the state." 2009 ME 130, ¶ 37, 985 A.2d 4. Now, a lifetime registrant who was sentenced prior to September 18, 1999, is only required to report in writing every ninety days and report in person every five years, unless there has been a change in address or appearance. 34-A M.R.S. § 11222(4-B) (2012). Admittedly, this is a lower physical burden on the offender than predecessor acts' requirements that the offender report every ninety days in person. The level of state supervision, however, has not changed in a material way because the State still maintains and distributes the same amount of highly personal information about the offender.
[¶ 89] The effect of the registration and reporting requirements of SORNA of 1999 is substantially more burdensome than renewing a driver's license. Most notably, if the offender fails to comply with the reporting provisions in SORNA of 1999, he exposes himself to criminal liability, which reflects the punitive effect of the statute. See 34-A M.R.S. § 11227(1) (2012) (providing that the first offense is a Class D crime). In comparison, if an individual chooses not to renew his driver's license he is simply not permitted to drive. Although the changes to SORNA of 1999 have reduced the physical burdens on the offender, the State's supervision and control over the offender have not been reduced. This supervision and control, as we recognized in Letalien, signifies the punitive effect of SORNA of 1999.
B. Historically Regarded as Punishment
[¶ 90] Labeling a law's burden as civil instead of criminal does not reduce the level of punishment attached to the burden, nor should it reduce the constitutional protection connected to the burden.15 Likewise, a burden that was imposed as part of a sentence does not become less punitive if it is later imposed as part of a regulatory requirement that parallels sentencing.
[¶ 91] In Letalien, we provided a detailed description of the evolution of the sex offender registry in Maine. 2009 ME 130, ¶¶ 4-12, 985 A.2d 4. One aspect of the registry that has evolved is its relation to sentencing procedures. Beginning in 1996, the registration requirements of SORNA of 1995 were imposed as part of a sentence. P.L. 1995, ch. 680, § 4. Subsequently, the statute was amended to instruct the court to order convicted offenders to register at the time it imposed a sentence, but it was no longer "part of a sentence." P.L. 2003, ch. 711, § B-13. Although the statutory language removed the registry from the direct realm of sentencing, this change "did not, in itself, make the registration requirements less punitive or otherwise remove the constitutional infirmity." Letalien, 2009 ME 130, ¶ 74, 985 A.2d 4 (Silver, J., concurring).
[¶ 92] The stigma associated with publication on the Internet is demonstrative of SORNA of 1999's role as punishment and its punitive effects. See Smith v. Doe, 538 U.S. 84, 115-16 (2003) (Ginsburg, J., dissenting) (noting that the public notification regimen of the registry "calls to mind shaming punishments once used to mark an offender as someone to be shunned"); Doe v. State, 189 P.3d 999, 1012 & n.98 (Alaska 2008) (noting that the act of registering is not analogous to shaming, but the dissemination provision is analogous). The public does not have access to the pictures, home addresses, and work places of those convicted of robbery, arson, embezzlement, or any other crime. We acknowledge that there is a stigma connected to any criminal behavior and there often is retribution by the public against those who have committed crimes. However, in no other area of the criminal law do we allow the public to have access to such personal information. Because these Does have not committed additional sex crimes since they completed their sentences, they were not required to be on a registry when the registry system was first created. Placing them on the registry now forces them to face additional public ridicule. See Human Rights Watch, No Easy Answers: Sex Offender Laws in the US 78-79 (2007), available at http://www.hrw.org/reports/2007/us0907/us0907web.pdf (discussing the serious impact the dissemination of registration information has on the registrants).
[¶ 93] In State v. Freeman we found that the civil proceeding by which some OUI laws were enforced had punitive consequences of the type that characterize criminal prosecution. 487 A.2d 1175, 1176-77 (Me. 1985) (finding the statute void because its purpose was frustrated). In our analysis of the civil OUI proceeding, we considered, in part, the effect that the pre-charging mechanism for OUI defendants had on one's reputation. Id. at 1178.16 In this consideration, we noted that the stigma from the pre-charging mechanism associated with the civil proceeding for the OUI offense paralleled the stigma associated with the criminal proceeding. Id. As a result, we found that the stigma was "highly suggestive of the true criminal nature of the procedure." Id.; see also State v. Anton, 463 A.2d 703, 708 (Me. 1983) (noting the lack of criminal stigma regarding the decriminalization of traffic offenses).
[¶ 94] Sex offenders who are required to register are subjected to stigma in part due to the underlying offense, but also in part due to the dissemination of information. The registry makes significant personal information readily available to the public.17 The impact of this dissemination is heightened by the use of the Internet, thus correlating the dissemination "to the shaming and branding punishments used in colonial times." Doe v. Dist. Attorney, 2007 ME 139, ¶ 55, 932 A.2d 552 (Alexander and Silver, JJ., concurring). As discussed below in relation to the traditional aims of punishment, the stigma associated with Internet publication has the potential to cause "retributive and vigilante violence against registrants." Id. The historic connection to criminal sentencing and shaming, along with the retribution and deterrence discussed below, demonstrate SORNA of 1999's punitive effect.
C. Traditional Aims of Punishment
[¶ 95] SORNA of 1999 promotes retribution and deterrence, especially as it relates to Does III, X, XIX, XXIII, and XLIII. Such characteristics are present regardless of the intent of the Legislature. As the Indiana Supreme Court said in its discussion of that state's sex offender registration act:
It is true that to some extent the deterrent effect of the registration and notification provisions of the Act is merely incidental to its regulatory function. And we have no reason to believe the Legislature passed the Act for purposes of retribution—vengeance for its own sake. Nonetheless it strains credulity to suppose that the Act's deterrent effect is not substantial, or that the Act does not promote community condemnation of the offender, both of which are included in the traditional aims of punishment.Wallace v. State, 905 N.E.2d 371, 382 (Ind. 2009) (quotation marks and citations omitted). Although we accept that SORNA of 1999 is not intended as retribution for sex offenders' crimes, it has that effect, due, in part, to its tendency to stigmatize the registrant. As a result, "[i]t promotes community condemnation in its most extreme form: vigilantism." Letalien, 2009 ME 130, ¶ 75, 985 A.2d 4 (Silver, J., concurring).
[¶ 96] As discussed in prior SORNA cases, and cited with concern by the Does in this case, acts of violence against those registered on the Maine Sex Offender Registry are not unknown. In 2006, "a Canadian man targeted and murdered two Maine sex offenders, who[m] he had located on Maine's registry website." Doe, 2007 ME 139, ¶ 56 n.21, 932 A.2d 552 (Alexander and Silver, JJ., concurring); see also Letalien, 2009 ME 130, ¶ 75, 985 A.2d 4 (Silver, J., concurring). More recent iterations of SORNA continue to invite the possibility of vigilantism by providing access to the registry via Maine's registry website. The use of the Internet registries allows anyone, anywhere in the world, to have unlimited access to the information.
[¶ 97] In addition to exposing the offenders to acts of vigilantism, there is evidence that registries do not achieve their primary objective of protecting the public. See 34-A M.R.S. § 11201 (2012) ("The purpose of this chapter is to protect the public from potentially dangerous registrants and offenders by enhancing access to information concerning those registrants and offenders."). See also Kristen M. Zgoba & Karen Bachar, National Institute of Justice, Sex Offender Registration and Notification: Limited Effect in New Jersey 2 (2009), available at https://www.ncjrs.gov/pdffiles1/nij/225402.pdf (finding that the sex offender registry did not reduce the number of rearrests for sex offenses or the number of victims of sexual offenses). Instead, the registry may promote criminally deviant behavior by socially isolating offenders. See J.J. Prescott, Do Sex Offender Registries Make us Less Safe?, Regulation, Summer 2012, at 50 (discussing the "negative collateral consequences" for registrants, including loss of social ties, that may cause an increase in criminal behavior). As Justice Brennan noted in Trop v. Dulles, "I can think of no more certain way in which to make a man in whom, perhaps, rest the seeds of serious antisocial behavior more likely to pursue further a career of unlawful activity than to place on him the stigma of the derelict, uncertain of many of his basic rights." 356 U.S. 86, 111 (1958) (Brennan, J., concurring). SORNA of 1999 clearly promotes retribution and deterrence by inadvertently creating an environment where the Does are stigmatized in a way that may invite violent attacks and stall rehabilitation.
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