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John Doe XLVI -v- Stephanie Anderson et al.

1-13-2015 Maine:

John Doe XLVI -v- Stephanie Anderson et al.

John Doe XLVI appeals from a judgment of the Superior Court (Kennebec County, Murphy, J.) denying his request for declaratory relief and a temporary restraining order. Doe argues that Maine’s Sex offender Registration and Notification Act of 1999 (SORNA), 34-A M.R.S. §§ 11201 to 11256 (2012),1 as applied to him violates the Bill of Attainder, Due Process, and Separation of Powers Clauses of the Maine Constitution.

The trial court determined that as applied to Doe SORNA is not punitive, and rejected Doe’s bill of attainder claim without considering the lack of a judicial trial and specificity, the other elements of a bill of attainder challenge. We conclude that SORNA is punitive as to offenders who were not sentenced to comply with SORNA when SORNA registration was part of sentencing and who were subsequently subjected to SORNA registration when their earlier offenses were added to the statutory list of sex offenses and registration was removed from sentencing.

We therefore vacate the judgment with respect to the bill of attainder issue. Because the trial record does not contain sufficient facts regarding the specificity element of Doe’s bill of attainder claim, we remand for further consideration.


When Doe was convicted, SORNA was part of the sentencing process. At the time of Doe’s sentence, the Maine Criminal Code, in a section titled “Authorized Sentences,” required sentencing courts to order defendants who were convicted of sex offenses to comply with SORNA: “As part of a sentence, the court shall order every natural person who is a convicted sex offender or sexually violent predator as defined under Title 34-A, section 11203 to satisfy all requirements set forth in the Sex Offender Registration and Notification Act of 1999.” 17-A M.R.S.A. § 1152(2-C) (Supp. 2002).4

The section of SORNA regarding an offender’s duty to register likewise provided, “The court shall determine at the time of sentencing if a defendant is a sex offender or a sexually violent predator. A person who the court determines is a sex offender or a sexually violent predator shall register according to this subchapter.” 34-A M.R.S.A. § 11222(1) (Supp. 2002).5

Doe’s Judgment and Commitment form contained a box that the sentencing judge was required to check if the conviction was for an offense requiring SORNA registration. Because possession of sexually explicit material was not then a sex offense as defined by 34-A M.R.S.A. § 11203 (Supp. 2002),6 the sentencing court did not check the box on Doe’s Judgment and Commitment form and Doe was not ordered to comply with SORNA.

In September 2003, possession of sexually explicit material was added to the list of sex offenses, a conviction for which required the defendant to register. P.L. 2003, ch. 371, § 2 (effective Sept. 13, 2003) (codified as amended at 34-A M.R.S.A. § 11203(6) (Supp. 2003)).7 In July 2004, a 2003 amendment to the Maine Criminal Code’s sentencing provisions regarding sex offenders took effect.8 P.L. 2003, ch. 711, § B–13 (effective July 30, 2004). After the amendment’s effective date, the sentencing court was to order compliance with SORNA’s registration provisions “[a]t the time” of sentencing rather than “as part of” a sentence. See id.

In July 2006, Doe received a letter from the Maine State Police advising him that he was required to register. The following month, he responded with a letter stating that he did not believe he was required to register because there had been no “triggering event” requiring registration, such as a court’s determination of the duty to register. After learning of Doe’s objection, the Office
of the Attorney General sent a letter dated January 10, 2007, to the State Bureau of Identification stating that it would recommend an amendment to SORNA if those convicted after 1999 but before 2003 fell into a “gap in the duty to register.”

In 2009, 17-A M.R.S. § 1152(2-C) was repealed by P.L. 2009, ch. 365, § A-3 (effective Sept. 12, 2009). This law amended the Maine Criminal Code, repealing “from the sentencing provisions the directive that a court order a person convicted of a sex offense . . . to satisfy all requirements of [SORNA].” L.D. 1157 Summary (124th Legis. 2009). It also amended SORNA to require that a court “notify the offender at the time of sentence of the duty to register[,]” and to provide that an offender’s duty to register is triggered by receiving notice from a court, the Department of Corrections, the State Bureau of Identification, or a law enforcement agency. P.L. 2009, ch. 365, § B-15 (effective Sept. 12, 2009).9 These changes clarified that “the Legislature determines that a duty to register exists based on the conviction,” “that a duty to register is not triggered by a court determination, but by and upon notification,” “and that the court’s duty is only to notify the person of that duty.” L.D. 1157 Summary (124th Legis. 2009).

In February 2012, Doe received a second notice of the duty to register from the State Bureau of dentification. In April 2012, Doe filed a complaint for a declaratory judgment and temporary restraining order to enjoin the State from pursuing criminal charges against him for failing to register. In his complaint, Doe alleged that SORNA was an unconstitutional ex post facto law and bill of attainder, and that applying it to him violated the Separation of Powers Clause and his substantive and procedural due process rights. At a hearing on May 3, 2012, the Superior Court rejected Doe’s ex post facto challenge. On October 29, 2013, the court entered an order rejecting Doe’s due process, separation of powers, and bill of attainder claims. Following the court’s denial of his motion to reconsider, Doe timely appealed.10 See M.R. App. P. 2(b).


Here, the duty to comply with SORNA was clearly imposed on Doe without a judicial trial. Doe did not have a trial but he did plead guilty to one charge of possession of sexually explicit material. After that plea, which resulted in his conviction, Doe was sentenced, but his sentence did not include a registration obligation because, at the time Doe was sentenced, the Maine Legislature had not deemed his crime to be a sex offense. The legislative amendment to SORNA that purported to change Doe’s sentence by imposing registration obligations on him occurred without a judicial determination that Doe was a sex offender and without a judicial order incorporating the registration obligation into his criminal sentence.

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