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Horner v State

6-19-2008 New Hampshire:

Horner v State

The plaintiff, Philip S. Horner, appeals an order of the Superior Court (Smukler, J.) denying his petition for a writ of prohibition to enjoin the State from enforcing RSA 651-B:11 (2007 & Supp. 2007), which mandates the collection of a sex offender registration fee. We affirm.

The plaintiff was convicted in 2000 of five counts of felonious sexual assault, see RSA 632-A:3 (2007). Every sex offender and offender against children is required to register with the New Hampshire Division of State Police (division) which maintains the sex offender registry. RSA 651-B:2, I (2007), :11, I (Supp. 2007). Upon release from prison, sex offenders must inform the division where they intend to reside and the division enters this information into the law enforcement name search system. RSA 651-B:3, I (Supp. 2007). When the division is notified by law enforcement that a sex offender has moved to New Hampshire, the division must locate the offender, serve notice of duty to register and enter the offender’s information in the system. RSA 651-B:3, II (Supp. 2007). On a semi-annual basis, the division is required to verify the offender’s address by sending a letter by certified mail to the offender. RSA 651-B:3, III (2007). Offenders must register in person on a semi-annual basis, be photographed and provide specific information about their appearance, employment and vehicles. Id.; RSA 651-B:4, I(a)(2)-(3) (2007).

Pursuant to the statute, sex offenders must pay “a fee of $17 semi-annually.” RSA 651-B:11, I. The plaintiff brought a petition for a writ of prohibition contending that the statute violates the prohibition against disproportionate taxation in Part I, Article 12 and Part II, Article 5 of the State Constitution. Following a hearing, the trial court denied the petition, ruling that the plaintiff failed to establish that RSA 651-B:11 imposes a tax.

On appeal, the plaintiff argues that the sex offender registration fee “is in reality a disproportionate tax, being an enforced contribution to fund a public safety measure (the registry) which benefits all citizens, not just registrants.” The State argues that the charge is a fee because the statute serves a regulatory purpose and the fee helps to defray the cost of maintaining the registry.

... ... ...

We hold that the $17 semi-annual charge imposed upon sex offenders is not intended to raise additional revenue but, rather, is used solely to support a governmental regulatory activity made necessary by the actions of those who are required to pay the charge. As the trial court found, the sex offender registration fees “are applied directly to regulatory services that would not be necessary if there were no sex offenders.” There is no evidence that the fee does not “bear a relationship to and approximate the expense” of maintaining the sex offender registry, see D’Antoni, 153 N.H. at 658, nor is there evidence that the fee is not incidental to regulation but is rather “primarily for the purpose of producing revenue.” Appeal of Ass’n of N.H. Utilities, 122 N.H. 770, 773 (1982) (quotation omitted). Accordingly, the $17 semi-annual charge is properly characterized as a fee and not a tax.

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