John Doe I v. Robert Williams

24ME I et DOE al. John et al. WILLIAMS

Robert of Maine. Judicial Court

Supreme Sept. 2012.

Argued: March

Decided:

MEAD, J. IV, V, VI, I, III, VII, John Does XIII, XVIII, VIII, X, XVI, XXIV, and XLIII, joined John Does XIX1 and XXIII, summary from appeal judgment (Kennebec the Superior entered in Court J.) Murphy, County, in favor numerous parties’ State officials on the cross-motions summary judgment. for chal- lenge constitutionality Maine’s Sex Registration Offender and Notification Act (SORNA 1999), of 1999 34-A M.R.S. (2012). §§ 11201-11256 affirm the tri- Mitchell, and Esq., (orally), James E. judgment, al concluding court’s that SOR- Mitchell, Esq., Elizabeth H. Jim Mitchell following NA of 1999 as amended our deci- P.A., Davis, Augusta, appel- Jed for and sion in State v. ME III, IV, VII, I, V, VI, John Does lants does violate the constitutional XVI, VIII, X, XIII, XVIII, XXIV, and rights litigants of the us. before XLIII. Bourget, Esq., Ronald W. Law Offices I. BACKGROUND2 Bourget, Augusta, appellants

Ronald for I previously John Doe was [¶ 2]' Does XIX and XXIII. before John Attorney, us in v. District Doe Schneider, General, Attorney J. William I pleaded 932 A.2d John Doe Stern, Gen., Atty. Dep. Paul Laura Yustak guilty to was convicted of unlawful Smith, Gen., Atty. Lup- Asst. and Ronald family member, sexual contact with a id. ton, Gen., Atty. Asst. Office of Attor- ¶ 2, 1985 was sentenced to five General, ney Augusta, appellee for State of years’ sixty but imprisonment days with all Maine. suspended years’ probation. two He Stern, Gen., Dep. Atty. (orally), Paul has not been convicted of sex offenses appellee State of Maine. since. SAUFLEY, C.J., Panel: and 2005, In the Legislature amended ALEXANDER, LEVY, SILVER, MEAD, 1999 apply retroactively SORNA of to to GORMAN, JABAR, and JJ. all sex offenders on or after sentenced 1, P.L.2005, 423, § 1982. January ch. 1 SAUFLEY, C.J., LEVY, Majority: and (effective 17, 2005) (codified Sept. at 34-A MEAD, GORMAN, and JJ. 11202(1) Doe, (2012)); § M.R.S. see 2007 ¶ ALEXANDER, SILVER, 14, 139, Dissent: and ME John A.2d 552. Doe I JABAR, JJ. sued several State in their officials official 130, ¶¶ 4-12, 4, originally provide John Doe XIX XVI- 1. was John Doe 2009 ME 985 A.2d a II, changed pseudonym but the trial court his history detailed of sex offender laws in Maine. already assigned because it was to another background provide here focuses on Doe. John procedural history and the factual of the liti- gants and amendments to SORNA of 1999 139, Attorney, Doe 2. v. District after Letalien. 10-19, 552, Letalien, ¶¶ 932 A.2d and State v. convictions, no they had subse- ap- fense and the retroactive arguing that capacities, punishable by crimes convictions for quent violated his SORNA of 1999 plication of or more. 34-A imprisonment year one due and substantive procedural to rights 11202-A(1)(A)-(F). § jury- Because of a civil M.R.S. protection, and process, equal many newly exception, of the and enacted to the Maine United trial, pursuant for Doe, 139, eligible Does became relief from John Constitutions. States ¶ register withdrew from the duty Upon the State officials’ 5, A.2d 552. dismiss, eligible Does who were litigation. Some Superior Court motion J.) relief, however, (Kennebec to continue with dis- for chose County, Studstrup, who litigation along with I’s for failure complaint Doe missed John ineligible for relief. relief could be were upon claim which to state a ¶ appealed, I Id. 1. John Doe granted. shortly after We decided Letalien (1) factual further concluded that and we 11202-A(1) § M.R.S. became effec- 34-A to determine required was development Regis- Pursuant the Sex Offender tive. an unconsti- was SORNA 1999 whether 1995, sentence tration Act Letalien’s applied facto law3 as ex tutional requirement register a that he for included (2) have been him,4 he should not years on the State’s sex offender fifteen pursuing his other theo- from foreclosed after registry; provided sentence ¶¶ 1, Id. We then of relief. 36-37. ries years seek a five Letalien could waiver the trial court for remanded the case to finding “upon ‘ha[d] shown a [he] on those issues. Id. proceedings further registration reasonable likelihood that ¶ remand, John Doe I’s case was On 37. waiver longer necessary no of the ” brought by with other consolidated cases requirement appropriate.’ were sex offenders who also convicted ¶5, 130, ME challenging application retroactive 11121(6)(C) § 34-A M.R.S.A (quoting 1999. SORNA of was (Supp.1996)). pro- While Letalien on bation, 2009, Legislature enacted SORNA of Legislature created [¶4] 1999, register which him to for duty register required from the exception an life, waiver, meeting seeking him from prevented certain criteria who sex offenders 1, re- January reporting on after and established additional were sentenced or ¶¶ P.L.2009, P.L.1999, 30, (citing Id. 6-8 quirements. and before June 1992. 1999) (effective 2009) (effective (codi- § 2 Sept. Sept. § B-3 ch. ch. 11202-A(1) (codified §§ fied at 34-AM.R.S.A. 11201-11252 at 34-A M.R.S. (2009)).5 challenged (Pamph.1999))). fall within the ex- Letalien SOR- Sex offenders if, criteria, their un- NA of 1999 unconstitutional under ception among other Facto of the convictions include more Ex Post Clauses United derlying did not A or and Maine Id. sexually than one Class sex offense States Constitutions. offense, prior no sex of- concluded that SORNA 1999 “im- violent had We given ing application Although 3. Doe assert an ex its to individual. John I did not 130, 34, violation, 4. Superior Court treat- 985 A.2d post facto procedural process due claim as an ed his ex ¶¶ Doe, 139, 1, 8, post facto claim. (2009) § 34-A M.R.S. 11202-A was 5. Title 130, 932 A.2d 552. ME after amended detail and will in later in be discussed (effective P.L.2009, post opinion. ch. 570 4. later held in ex this See "[f]or Letalien that 30, 2010) (codified at 34-A properly M.R.S. purposes, facto SORNA of 1999 is Mar. 11202-A, 11222, (2012)). §§ 11225-A face” than examin- evaluated on its rather pose[d] punishment an ex facto as to current photograph or to allow a new pho- in years taken, offenders sentenced before tograph to be or may instruct the effective date of for whom registrant [the statute] to submit a new photograph registration required part was a of their without appearing person. Id. sentence subsequently 11222(4 A.)(C)(1)—(2),(4-B)(C)(l)-(2). § and who were made — subject to the more require- burdensome I, IV, V,7VI, VIII, John and

ments.” Id. initially XVI were required register, but response Letalien deci- successfully petitioned to be removed. sion, the Legislature amended SORNA of John Doe XXIV was also required reg- (effec- P.L.2009, by enacting ch. 570 ister, but he temporary obtained a re- 2010) (codified tive Mar. at 34-A straining order preventing his information 11202-A, 11222, §§ M.R.S. 11225-A from being publically posted; he later suc- (2012)). The amendments extended the ex- cessfully petitioned for removal from the ception from provided by P.L. registry. VII, XIII, John Does and XVIII 365, B-3, § ch. making it available to temporary obtained restraining orders re- qualifying offenders sentenced through lieving them from registering, and they 18, 1999, September the effective date of were statutorily also relieved of the regis- P.L.2004, SORNA of 1999.6 See ch. tration requirement. III, X, John Does § 1. The amendments changed also the XIX, XXIII, and XLIII8 remain on the reporting requirements for offenders’ reg- registry and have viable claims. information, istration such as residence The Does and State defendants P.L.2004, place employment. and ch. filed summary cross-motions for judgment. 570, § Ten-year registrants are now The trial court issued its decision on the subject to annual verification in writing 18, 2011, cross-motions on August denying in-person and verification every once five claims, the Does’ motion on all of their years. 11222(4-A). § 34-A M.R.S. Life- granting the State defendants’ motion for registrants time subject are now quar- summary judgment. The court concluded terly verification in writing in-person that the cases of the successfully Does who every verification once years. five Id. petitioned to be duty relieved from the 11222(4-B). § Additionally, if a law en- moot, register were SORNA of agency forcement jurisdiction with over a 1999 as amended after was consti- Letalien registrant or the State Bureau of Identifi- tutional. The court also denied the Does’ cation has “reason to believe [regis- motion for attorney fees. appearance has changed signifi- trant’s] cantly,” agency may or Bureau instruct [¶ 9] The Does make numerous claims registrant appear (A) in person with a appeal, namely on the claims of 6. None of the Does were removed from the 7. John Doe V was registry removed from the registry as a result of the latest amendments briefs, parties after the submitted their but P.L.2009, (effective 30, 2010) ch. 570 Mar. prior argument. to oral (codified 11202-A, 11222, §§ at 34-A M.R.S. 11225-A). Instead, they were removed as a 8. John Doe currently XLIII is not on the P.L.2009, result of the enactment of ch. registry temporary because he obtained a re (effective 12, 2009) (codified Sept. § B-3 at order, straining ineligible but he is to be re 11202-A(1) (2009)), 34-A M.R.S. which al- registration requirement lieved from the be meeting lowed Does certain criteria to be requirements cause he does not meet the of registry they removed from the if were con- M.R.S] 11202-A(1)(C). § 34-A January Septem- victed between 1982 and ber 1999. omitted). required challenges marks review longer who are no We John Does moot; validity of statutes de novo. Id. We sex offenders are not register constitutional,

(B) is presume unconstitutional the statute of is an SORNA (C) law; id., of 1999 and must an unconstitutional SORNA “avoid ex facto I, of if a reasonable section of Maine construction a statute violates article (D) Constitution; interpretation satisfy of 1999 of the statute would SORNA violates (E) rights; v. process requirements,” Bagley due constitutional procedural their ¶ 14, Raymond their substantive Sch. 1999 ME Dep’t, of 1999 violates SORNA omitted). (F) SORNA of 1999 A.2d 127 marks rights; (quotation process due Equal Clauses of Protection violates States Constitu-

the Maine United III. DISCUSSION (G) tions; violates SORNA of 1999 the Does’ chal- [¶ 12] consider (MCRA), 5 Rights Act M.R.S. Maine Civil in the lenges order the Does them. (H) (2012); §§ of 4681-4685 SORNA 1999 (Lexis 2012); violates U.S.C.S. Justiciability A. (I) summary judgment improperly was The determined Superior [¶ 13] Court (J) granted; are entitled to an they that the claims the Does who had of been attorney fees. award from are registry removed moot be- provide cause the court them could II. STANDARD OF REVIEW or effective These Does argue real relief. This case comes before (1) that their claims not moot because judgment grant summary us on a subject registry they will be if defendants, State which favor of the we future move to a commit crimes or differ- novo and affirm “if review de will (2) state, fit ent their claims within the genuine reflects that is no record there doctrine, exceptions to the mootness material the movant issue of fact and is (3) jurisdiction the court can retain in or- judgment a matter of law.” entitled to as a attorney fees. der to award costs and Levesque Cnty., 2012 ME Androscoggin ¶ 114, 5, (quotation 56 A.3d 1227 marks Technical 1. Mootness omitted). Because we find that there are review de novo the [¶ 14] We genuine no issues material facts dis trial court’s determination of mootness. pute, evaluate whether the State defen McGettigan v. Freeport, Town judgment dants are entitled to a as a ¶28, 10, 39 “An A.3d 48. issue moot Summary judgment matter of law. when there is no real and substantial con properly granted plaintiff when “the fails troversy, admitting specific relief prima establish facie case each through judgment of conclusive charac (quo element of cause of action.” Id. [his] omitted). (quotation Id. ter.” marks omitted). tation marks moot, analyzing whether a case is “we arguments Does’ remain examine whether there sufficient procedural based on and substantive due effects from the practical flowing resolu process, equal protection, and the Ex Post litigation justify tion of the the applica challenge Facto Clause the constitutionali judicial tion of limited resources.” Id. ty Accordingly, SORNA omitted). (quotation marks “the Does have burden of establishing infirmity.” argument, [the See The Does’ first statute’s] 130, 15, subject (quotation may 985 A.2d 4 that their future conduct them future, that, concern great public in the is insufficient in the interest registration to a “real con- providing guidance to and substantial of future to the bar constitute controversy (3) address; See id. For a troversy.” public, may and the or rights “upon it must justiciable be declare are capable repetition the issues of but existing upon state of facts and not the fleeting evade review because of their or arise in may may state of facts or not nature. determinate the See Madore v. Me. Land Use future.” Me., Anthem Health Plans Su Inc. v. of ¶ Comm’n, 178, 7, 1998 ME Regulation Ins., 48, 8, perintendent of omitted). (quotation marks omitted). (quotation A.3d 824 marks Here, Does have facts that alleged only the Here, the collateral future, may may or not occur in the and exception consequences is unavailable. claims are moot. thus their registration The Does that their sta Additionally, been the Does have [¶ 16] if may tus be affected commit another duty the crux of register, relieved of the crime or move another col state. The See, State, litigation. e.g., the Bennett consequences exception lateral will ap not (Me.1972) (holding 289 A.2d if ply appellant the fails to “demonstrate ren expiration defendant’s sentence that a on the appeal decision merits of the moot); corpus petition habeas dered his conjectural will have more than and insub (Me. Irish, 551 A.2d State v. 861-62 consequences stantial in the future.” Sor 1988) (holding that the defendant’s consti ¶87, 6, dyl v. Sordyl, 692 A.2d challenge of his tutional revocation omitted). (quotation marks These supervision he intensive was moot because consequences Does’ sta had released from con been institutional may tus that or may transpire not in the finement). future are entirely and which dependent Further, because we conclude [¶ 17] on the own actions Does’ do not fall under that the Does are not entitled to an award collateral consequences exception. costs, and of their fees there is no need for Additionally, the Does’ their argument that jurisdiction the trial court retain over claims have a may potential impact on their claim. funding of federal Maine law enforcement reasons, For these the claims of [¶ 18] is too tenuous and uncertain to be a collat I, IV, V, VI, XIII, XVI, VII, VIII, Does eral consequence. XXIV, XVIII, who removed have been registry, from no longer have contro- The two remaining excep vitality versial and are moot un- therefore mootness, pub tions to great issues of exception applies. less an capable repeti lic concern issues tion, are also unavailable to the who Exceptions to Mootness have been from the Al registry. removed The Does’ also claims though it true that the application -within exceptions do not fit to the SORNA is an great public of 1999 issue of mootness doctrine. will consider an concern is capable repetition, appeal appel that is otherwise moot if the issue will evade review because lant can show that III, X, XIX, XXIII, cases of Does

(1) XLIII, sufficient consequences collateral remain registry, who on the Therefore, from today. will result the determination decided the claims questions presented so as to re- had been justify Does who removed from (2) lief; appeal questions registry contains are moot.

730 In the effects of analyzing Analysis [¶ 25] Facto Ex Post B. 1999, the seven of we consider SORNA remaining Does [¶ 22] Letalien, we common factors discussed after as amended of 1999 that SORNA to as ly referred the Mendoza-Martinez fac post ex is an unconstitutional Letalien questions, Reformulated as the factors. that the The trial court concluded law. to (1) are the sanction seven factors does the by to establish clearest Does failed disability or re involve an affirmative punitive. SORNA of 1999 is that proof (2) straint?, been histori has the sanction (3) the States Both United is regarded 23] as the cally punishment?, [¶ the en prohibit finding and Maine Constitutions a of imposed only upon sanction Const, (4) post scienter?, laws. U.S. of ex facto of operation actment does the the (“No ... I, pass 1 shall § cl. State promote art. and deter sanction retribution Law....”); (5) Me. post rence?, ... ex facto is the to which behavior it Const, I, (“The (6) shall Legislature crime?, 11 already art. there applies is an law....”). post ex facto no ... pass purpose which the sanction alternative (7) connected?, the Ex Post Facto explained have may rationally be is “are inter the two of constitutions Clauses in relation to the the sanction excessive Le similarly Letalien, and are coextensive.” preted purpose?. See 2009 alternative ¶ 130, 25, ¶ talien, A.2d 4. A 130, 31, 2009 ME 985 (quoting ME 985 4 Kenne A.2d Facto Mendoza-Martinez, statute violates Ex Post Clauses dy v. 372 U.S. punish (1963)). more 168-69, if it “makes burdensome 83 S.Ct. 9 L.Ed.2d 644 crime it been commit ment for a after has In for us to conclude order Id.

ted.” that SORNA of 1999 is an unconstitutional making In that determina law, must, through facto post ex the Does tion, employ two-step “intent-ef we factors, the Mendoza-Martinez “demon test,” analyze in which we first fects proof strate clearest stat enacting intent in the statute. Legislature’s punitive in or effect as purpose ute is so Doe, 84, 92, 123 See Smith 538 U.S. the Legislature’s overcome civil intent.” (2003); 164 Letal 155 L.Ed.2d S.Ct. ¶64, 2, Cosgro, See State v. 2008 ME 945 ¶ 130, 29, ien, A.2d 4. If ME 985 2009 omitted). (quotation 1221 A.2d marks that the of the statute intent determine depar- point Letalien is the nature, analyze the stat civil in we then analysis our ture for of the constitutionali- whether the ef ute’s effects determine ty SORNA of under the Ex Post punitive they fects are so overcome States Facto Clauses the United intent. Smith v. Legislature’s civil Letalien, we Maine Constitutions. con- Doe, 84, 92, 123 538 U.S. S.Ct. cluded that statute Letalien, (2003); L.Ed.2d 164 ¶ 130, 29, punishment an ex facto already impose[d] 4. We have years intended to offenders in the concluded that “SORNA was sentenced civil, under before the effective date of SORNA of regulatory be a statute” whom was re- aspect analysis. intent of the ¶ 130, 29, Therefore, part sentence and quired A.2d 4. their who step subsequently subject were made our focus on the second inquiry assessing requirements effects to more burdensome SOR- the statute’s — if NA of 1999 after its effective date punitive. determine See id. 18,1999. September ¶ 1, 2009 ME A.2d 4 (emphasis 985 the disability or restraint is minor and added). indirect, its effects are unlikely to be puni- ” ¶ Letalien, 130, 35, tive.’ 2009 ME 985 There are [¶ numerous factual dis- 28] (alteration A.2d 4 in original) (quoting plaintiff tinctions between the in Letalien Smith, 1140). 99-100, 538 U.S. at 123 III, X, XIX, XXIII, S.Ct. and Does and XLIII today. Letalien, who are before us Unlike In [¶ Letalien we 31] held that this required register who was as a sex factor weighed in favor of finding the stat- sentence, part offender as criminal his punitive ute great because of the burden ¶ 5, id. there registra- was no sex offender associated a registrant with appearing in tion law at the time the origi- Does were person every ninety days being sub- sentenced, Doe, nally see 2007 ME jected fingerprinting, photographing, ¶¶ 10, 14, 932 A.2d 552. The registration and verification of residence and employ- requirement of Letalien’s sentence includ- ¶ ment information. Id. 37. Since Letal- provision ed waiver that was eliminated ien, the imposed by burden registra- ¶ Letalien, 130, 8, in 2001. requirements tion of SORNA of 1999 has contrast, A.2d 4. In re- significantly been ten-year reduced. Now quirement originally imposed on the Does registrants lifetime required are by SORNA of 1999 has been by alleviated appear in person every years, five which is 11202-A, § the enactment of 34-A M.R.S. no more onerous than renewing one’s driv- which allows sex offenders to remove their 1406(1) er’s license. § See 29-A M.R.S. registry they names from the if fall within (2012) (requiring noncommercial license exceptions by created the statute. Re- every years renewal six and commercial porting requirements also differ. Letalien every license renewal years). five Similar- required was in report person to law ly, the burden of reporting in writing an- enforcement every ninety days. officials nually for ten-year registrants quarterly or ¶ 130, 8, 985 A.2d 4. registrants lifetime is minimal when law, Pursuant ten-year current reg- compared to an in-person reporting re- only istrants are required report annu- quirement. ally in writing person every and in five years; registrants lifetime are required to [¶ 32] The Does that it puni- report quarterly in in writing person tive to require registrants submit a 11222(4- every years.9 § five 34-A M.R.S. photograph new registrant’s when a ap- (4-B). A), pearance changed has significantly. The Against Supreme analyzed that backdrop, require- we evalu- Court a similar Smith, ate each of the seven ment holding Mendoza-Martinez the Alaska factors in turn. imposed statute no disability affirmative or “[a]lthough restraint because registrants

1. Affirmative Disability or Restraint must inform the they authorities after (such requires The first factor change their facial features grow- beard) us to determine whether SORNA of ing ... they are not required to imposes an disability affirmative or permission re seek to do so.” U.S. at “ straint. 1140; We consider ‘how the Haskell, effects of 123 S.Ct. see State v. are subject 154, 15, [a]ct felt those to it. If 2001 ME 4 (finding no addition, registrants required registrations they to re- date their significantly if port change to law enforcement officials when appearance. their 34-A M.R.S. change 11222(4-A), (4-B). employment, up- move or and must upon crucial which restraint because this is the distinction disability or

affirmative ¶¶ 1, 39, GO- reg- was id. [of activities Letalien based. See “movements and way”). weighs conclude factor not restricted 61. We that this were] istrants finding the against punitive. statute SORNA of conclude that no restraint or imposes significant Scienter 3. this factor disability, and that therefore The factor is whether the 36] third [¶ finding punitive. the statute weighs against only finding into on a play statute comes of 2.Historically as Punish- Regarded is Because of 1999 not scienter. SORNA

ment scienter, triggered finding on of this pu- weighs against finding factor SORNA examine The second factor we is [¶ 34] ¶ Haskell, 44; nitive. See id. 2001 ME has his registry the sex offender whether ¶ 17, 154, 784 A.2d 4. regarded torically punishment. as been argue registry’s that the avail The Does Aims of 4. Promote Traditional Punish- ability punitive on the Internet is because ment Supreme The stigmatizing effects. of its requires The factor us fourth purpose [¶ found that the “[t]he Court pro- determine whether SORNA of effect of are to inform principal notification punishment, motes the traditional aims of safety, its not to humili public the for own specifically, retribution and deterrence. public ac Widespread ate the offender. of 1999 necessary efficacy that SORNA is cess is for the of.the scheme, imposes registration retributive because it and the humiliation attendant is obligations past on them for wrongdoing of a consequence but a collateral valid Smith, 99, though gone even some of have dec- at regulation.” U.S. .them Letalien, reoffending; additionally, ades without In concluded S.Ct. 1140. that it they argue is a deterrent because the the Internet posting registry on was subject supervision to increased punitive by “for the reasons articulated by scrutiny the State and the in increased the Supreme Court Smith.” 130, ¶38, public. 985 A.2d 4. However, analysis of In factor considering our this this in [¶ 38] Smith, unique Supreme

factor does not there. “The the end Court concluded that history although registra- of the of sex offender the offender development Alaska sex crimes, may laws registration integral” in Maine is to tion scheme deter future such analysis finding finding our the retroactive did not warrant a whether registration punitive of 1999 should was application SORNA be statute be- Letalien, regarded punishment. “[a]ny governmental pro- See cause number 130, 39, might A.2d 4. The Sex deter without grams imposing crime Registration Offender Act of at 123 S.Ct. punishment.” U.S. Further, law original registration though sex en- 1140. even Alaska offender Maine, Reg- acted in Offender registration among and the Sex scheme differentiated Act of based extent of istration and Notification individuals on the their Letalien, registration length wrongdoing, corresponding which affected made sentencing requirements was “integral part process reporting an of the “reason- and, thus, recidivism, resulting ably danger sentence.” Id. related to the ¶¶ 39, regulatory 42. on the this is with the SORNA of other consistent hand, sentencing process; objective.” not tied to Id. that weighs against finding pu- we concluded that SORNA is nitive. between Smith and

given the differences length registration Letalien Excessive Relation to Alternative offenses, sparse provid- record certain Purpose assess the reasonable- ed “little basis to 43] The seventh final fac widely disparate ness of this treatment tor us to whether requires determine life- requirement and whether Maine’s appears statute excessive in relation to its reasonably time related to safety purpose. The Does public contend danger of recidivism.” 2009 ME an individual requiring previously con ¶ 46, 985 A.2d 4. register a sex if victed for offense to he is are unable to determine on [¶40] We later convicted of a non-sex-related offense this record whether SORNA of 1999 is by year punishable more than one is exces civil more deterrent in effect than other analyze sive. We excessiveness as it re Likewise, regulatory schemes. on the rec- lates to the increased burdens on individu cannot whether presented ord we assess als originally who were sentenced before requirements the are reason- registration requiring registration statute of sex ably danger related to the recidivism. had been offenders enacted and are now Thus, treat this neu- See id. we factor as retroactively subject ten-year or lifetime tral. See id. registration on the sex State’s offender registry. inquiry “The excessiveness ... Already 5. Behavior a Whether is determining is not an exercise in whether Crime legislature has the best made choice The factor we is [¶41] fifth examine possible address it problem seeks to whether the behavior to which SORNA of remedy. question The reg is whether the deter- applies already is a crime. We ulatory means chosen are reasonable in mined in Letalien that factor fifth Smith, nonpunitive light objective.” of the weighed finding in favor the statute 105, 123 538 U.S. at S.Ct. 1140.

punitive “applie[d] exclusively to because it Although statutory reporting [¶ 44] ¶ already behavior that 48. is crime.” Id. requirements of SORNA of 1999 are less reason, agree For that same we that this stringent oppressive those than finding factor that the is supports a statute Letalien, in considered we nevertheless punitive. again that conclude we have insufficient upon information which to determine

6. Rational to Alternative Connection light whether in of the reasonable Purpose nonpunitive purpose public safety. law’s The sixth factor is whether there ¶ Letalien, 130, 52, 985 A.2d 4. purpose is an alternative con- rationally The does not record allow us determine nected to the determined in statute. We regimen whether a less demanding would Letalien that SORNA 1999 “serves objective safety serve the of public equally governmental purpose separate valid from well. accordingly treat this factor as ¶ punishment” “among because it is id. 55. neutral. See obligations government most basic state 8. Assessment Mendoza-Martinez safety.” people ensuring owes its their — Factors ¶ depart

Id. 50. no We discern reason to from the determination we reached in Le- that a 45] [¶ inherently pu- talien and that this factor scheme is thus conclude conviction-based registration is a requiring im- lifetime should Legislature that the nitive How- of itself. Re- significant scheme. restraint in and risk-assessment plement a whether an ever, length our role to ask of the of time individual gardless is not “[i]t goals its reporting achieve to have subject registry, could is Legislature ¶ Id. 56. means.” per- alternative verified in through his information puni- burden, whether every years is to determine a minimal Our task son five of 1999 overcome of SORNA reporting writing tive effects no more fre- as is clear- civil intent Legislature’s quarterly. than quently ¶64, 2, ME Cosgro, 2008 See proof. est six, Additionally, regard- factor 1221. 945 A.2d rational connection ing important analysis facto Our ex truth- nonpunitive purpose providing to a — driven in informed and was Letalien information of public in furtherance ful registra by the fact that part significant safety conclusion that our —underscores Letalien’s criminal sen part was Haskell, tion See nonpunitive. the statute ¶¶ ME 60- (“[T]he tence. See 154, 9, ME 784 A.2d Su- Indeed, purpose “the of the 985 A.2d intimated, cases, in other preme Court has rightfully con prohibition facto ex significant question that the most under a at its when law’s apex to be sidered stage analysis is the effects of the whether punitive more application is retroactive law, having pu- ‘while certain perhaps actually im punishment that was than the aspects, important nonpuni- nitive serve[s] ” part an of a posed against offender (alteration original) in goals.’ (quot- tive definition, By it sentence.” Id. was Ursery, v. ing United States U.S. sentence punitive to increase Letalien’s 290, 116 S.Ct. 135 L.Ed.2d 549 Further, retroactively. was the cumula it (1996))). of a combination of factors that tive effect four, Factor whether the statute 50] [¶ finding the statute produced a that was promotes punishment, traditional aims in That is sim unconstitutional Letalien. seven, and factor whether statute is here, ply not the case where pur- to the alternate excessive relation of the part was not Does’ sentences and neutral; pose, accordingly, are found to be con significant of the most where some heavily analysis. do not in our weigh remed we had in Letalien have been cerns After all of the Legislature. considering Men- [¶ 51] ied factors, we that dozar-Martinez conclude present In our of the discussion [¶ 47] such, nonpunitive. SORNA of 1999 is As factors, we conclude Mendozar-Martinez not the Ex Post it does violate Facto factor five—whether the statute only that of the States and Maine Clauses United already to behavior that a applies Constitutions. weighs finding in favor SORNA crime— punitive. of 1999 Equal Protection C. first Mendozar-Martinez

[¶ 48] factor, argue The Does that SORNA of impos- which is whether the statute restraint, Protection Equal 1999 violates Clauses disability an affirmative or es in our that the stat- and Maine large looms conclusion of the United States Constitu- registration requirements Title because its nonpunitive overall. 34-A tions ute is significantly infringe rights § 11222 reduced on Does’ fundamental M.R.S. I, article 1 of the Maine subject regis- individuals under section burden on narrowly argument Does’ and are not tailored disagree with the Constitution try. We persons only a in- be compelling governmental rationally achieve need related alternative, In the the Does legitimate terest. a state interest.” Id. (quotation omitted). unlawfully of 1999 arbi- subject that SORNA marks Laws to rational differently treats them from simi- trarily strong basis review a presumption “bear[ ] requiring larly situated sex offenders Id. validity.” burden is “[T]he on years ten register some offenders for party challenging government action Superior for life. The Court and others fairly demonstrate there exists no impli- SORNA of 1999 found that does ground conceivable set facts that could suspect class or a fundamental cate a relationship rational between the chal- failed right, and concluded that the Does lenged and the government’s classification to establish that the statute treats them legitimate goals.” (quotation Id. marks differently persons similarly from situated omitted). way rationally in a that is not to a related As persons convicted state legitimate interest. offenses, the sex Does are not members The Fourteenth Amendment’s protected suspect or class purposes Equal prohibits “any Protection Clause See, equal e.g., of an protection challenge. within denying any person state from its Male, United States Juvenile 670 F.3d jurisdiction equal protection (9th Cir.2012); Moore, Doe v. laws, requires, generally, persons (11th Cir.2005). 410 F.3d Addi similarly situated be Article treated alike. tionally, the Does have not established [I], section 6-A of the Maine Constitution infringes SORNA of 1999 on a fundamen requirements.” similar includes Anderson right; they merely tal constitutional refer ¶ Durham, 39, 28, 895 v. Town 2006 ME of I, article generally to section 1 of (citations quotation A.2d 944 and marks Maine and argue greater Constitution10 Const, omitted); XIV, § see U.S. 1 amend. regard detail with to pro substantive due (“[N]or deny shall to any State ... right cess that implicated. a fundamental is person jurisdiction equal within its As we will in our discuss substantive due Const, laws.”); I, protection of the art. Me. process analysis, we do not find that SOR- (“No person § shall be ... 6-A denied implicates NA of 1999 a fundamental con ”). equal protection of the laws.... Accordingly, stitutional right. the Does’ In an equal protection [¶ 54] equal protection challenge subject to a challenge, subject state law is to strict highly rational deferential basis review. analysis if scrutiny “infringes it on a fun ¶ Anderson, 39, 29, See 2006 ME A.2d 895 right, damental constitutional involves or ¶ 944; Haskell, 2001 ME 16 n. 784 Anderson, suspect ... a classification.” (SORNA’s only A.2d classifications “need 39, ¶29, If

2006 ME 895 A.2d 944. strict be related to a rationally legitimate gov applies, the scrutiny narrowly law must be goal”). ernment govern to achieve a compelling tailored interest. Id. “If government mental order [¶ 56] “[t]o succeed where, a implicate equal protection challenge action does either funda an class, here, right suspect challenging party mental or a different is not a mem similarly treatment accorded to situated ber of a class” and a suspect has not had I, enjoying defending 10. Article section 1 of the Maine Constitu- which are and life those provides, people equally liberty, acquiring, possessing “All protect- tion are born and and independent, obtaining ing property, pursuing and free and and have certain natu- and ral, among rights, safety happiness.” and inherent unalienable and infringed, compelling the Does offender information is a state right fundamental (1) (2) similarly per previously show that situated that have “must interest and law, equally are not treated under the sons held that the sex offender (2) rationally is not that the statute and enacted the legiti- statutes were to serve legitimate state See to interest.” related public mate governmental purpose safe- Me., Androscoggin v. MacImage LLC ¶ 130, 50, ty. See ¶ 33, (quo ME 40 A.3d 975 Cnty., 2012 A.2d 4. omitted). marks tation reasons, For these SORNA of has in- Legislature required violate Equal 1999 does not Protection who are convicted certain sex dividuals Clauses. register years for ten while offenses who are convicted of a requiring others D. Procedural Due Process or

“sexually multiple violent offense” sex life. register offenses to See 34-A The Does that (8). 11203(5), Although regis- M.R.S. all classification scheme of SORNA offenders,” are “sex trants labeled implies they “dangerous” that are ten-year have not that established they therefore are entitled to challenge similarly are life- registrants situated to at a hearing pursuant classification registrants different conduct time because the Due Process The trial Clause. court triggers require- durational different concluded that Does were not entitled ments. See Mental Green Comm’r of a hearing whether establish Retardation, & Health Mental potentially dangerous because fact is (“There good regard duty with immaterial to their insanity acquittees indi- argument register. civilly similarly are not viduals committed equal

situated for purposes protection [¶ 61] The Maine United analysis because of the difference in cir- States Constitutions create coextensive giving cumstances rise to their commit- ment.”). due process rights. Northup Poling, v. the Does’ Contrary argument 199, 5, that all sex are 9 n. similarly offenders situat- 761 A.2d 872. “We ed, the law treat does not offenders con- procedural review a process due claim particular differently victed of be- First, offenses two if the steps. gov determine a cause SORNA of 1999 is conviction- life, deprived ernment has a claimant of system.11 based Second, liberty, property or if interests. occurred, deprivation such we then deter do step not reach the second [¶ 58] process, pursuant mine what to the Four analysis in the given our conclusion that ” Amendment, teenth is due.... Daimler- similarly the Does are oth- not situated to Servs., Chrysler v. Corp. Me. Revenue er sex offenders are differ- who treated (citations 62, ¶26, (1) 922 A.2d 465 ently and Does’ concessions that omitted). through protecting public publicizing argue similarly deliberately 11. The Does that also situated "selective enforcement was made up can end categories in different as a impermissible unjustifiable on an and stan However, prosecutorial result of discretion. race, religion, dard such as a desire to dis is well that a "[i]t established reasonable courage the exercise of one's constitutional prosecutorial discretion in the enforcement of rights other See or invidious criteria.” State jus criminal laws is inherent in our criminal Heald, 290, (Me. 1978). system," tice and the Does do not claim that Supreme Court E. Substantive Due Process “stigma-plus test” to has articulated 64] The Does that SOR- procedural process determine whether due NA of violates their fundamental im rights12 implicated when the state rights privacy, reputation, property, and nega an poses stigma a on individual that ability and their to pursue happiness, and tively reputation. See Paul v. affects his the law is not tailored narrowly Davis, 693, 701, 711, 424 U.S. 96 S.Ct. compelling serve a state interest. The (1976). ac 47 L.Ed.2d 405 A state trial concluded court that the statute does infringement process tion is an on due the Does’ pro violate substantive due rights pursuant test stigma-plus because it rights infringe cess does not on only if it individ negatively both affects an right fundamental reasonably and is reputation legal ual’s and alters the status legitimate related to state interest. in a of an individual manner that affects liberty, revoking parole his or her such as previously [¶ 65] We have de or taking away right operate termined that the due process substantive 701, 708-09, vehicle. Id. at 96 S.Ct. rights of United States Maine legal Green, The Does’ status is unaffected coextensive, Constitutions are ¶92, SORNA of 1999. ME 13 n. 750 A.2d and there presented is nothing in this case that Other courts have held that sex causes us to reconsider that determination. registration requirements offender are not process analysis A substantive due turns stigma- process violations of due under the on the challenged whether state action im plus test no because does plicates a fundamental right: pub- more than the fact of make conviction First, regularly we have observed that lic, just here. as SORNA 1999 does specially pro- the Due Process Clause See, Munoz, e.g., Does v. 507 F.3d tects those fundamental and liber- rights Cir.2007) (6th (concluding reg- 965-66 are, deeply ties objectively, which rooted implicate istration does not a fundamental tradition, history in this Nation’s right pub- because it disseminates accurate in the implicit concept ordered Awmiller, information); lic Gwinn v. cf. liberty, liberty jus- such that neither nor Cir.2004) (10th 354 F.3d 1223-24 exist if they tice would were sacrificed. liberty (holding impli- interests were Second, required we have in substantive- stigma-plus cated under the test where due-process description cases a careful incorrectly defendant a sex placed was on liberty of the asserted in- fundamental offender registry any process). without history, legal terest. Our Nation’s tra- Because registry the contains no informa- ditions, practices provide and thus the through tion be that cannot obtained a crucial guideposts responsible deci- check, background routine criminal sionmaking that restrain direct and our registry affect any does not of the Does’ of exposition the Due Process Clause. interests, liberty or property and (quoting therefore not reach the of Id. question Washington need 13 v. Glucks 702, 720-21, process 2258, what is berg, due. 521 U.S. 117 S.Ct. concept stigma-plus 'liberty' expressed 12. The test "is limited to consid- in the of in the Davis, procedural guarantees of the eration of the v. Fourteenth Amendment." Paul 424 and 5, 1155, Due Process Clause is not intended to 693, 710 n. 47 U.S. 96 S.Ct. L.Ed.2d upon describe those limitations substantive (1976). 405 may encompassed with- state action which be 738 (1997)). to does already public addition that is available to L.Ed.2d 772

138 infringe protected by Bill not the fundamental constitutional rights expressly ‘liberty’ specially protected liberty privacy.”); of and Doe rights Rights, “the Cir.2004) Tandeske, (9th 594, includes Process Clause 361 F.3d by the Due children, (“[P]ersons to have direct who have been convicted rights marry, to to one’s chil funda- upbringing and serious sex offenses do have a the education dren, contracep right registra- to use be free from the privacy, to marital mental to tion, integrity, requirements....”); to abortion.” and bodily to and tion notification 720, W.M., 431, (D.C.2004) at 117 S.Ct. 2258 Glucksberg, 521 U.S. In re omitted). (“Under (citations cau Registration must be Offender [the Courts Sex rights ... recognizing implementing regulations fundamental and its Act] tious be clearly have established truthful accurate information of a only not been non-confidential, protection mainly public constitutional nature is “extending cause disclosed.”). or interest ... right liberty an to asserted outside the arena of placets] the matter not here a new 68] We do establish [¶ legislative action.” Id. public debate right. fundamental interest or Because no infringes If action or stake right state fundamental interest is at right a or fundamental and the have conceded that SORNA on fundamental Does interest, reasonably must is liberty infringement legiti- be of 1999 related to a interest, narrowly compelling tailored to serve a mate state see ¶ 50, Id. at state interest. S.Ct. 985 A.2d Does’ substantive state does not challenged process challenges If the action due must fail. or funda implicate right a fundamental Guilty F. Pleas Use interest, it liberty upheld

mental will be if reasonably legitimate it is related to a Does [¶ 69] The that SORNA state interest. Id. at 117 S.Ct. 2258. requirements 1999’s exact punishment agreed more than the to conclude no fundamen- 67] We plea bargain agreements in their liberty right tal interest or fundamental is urge recognize right us to of fundamen- implicated by particu- SORNA of 1999. In tal fairness under Maine’s Constitution lar, by right privacy alleged find right and to a violation of the Does’ i.e., Does, right private the fact keep contract. Because we have concluded that conviction, inapposite right punitive is not an SORNA 1999 under autonomy often personal described analysis and no implicates ex facto by right privacy Supreme Court rights, fundamental we do not find merit in bodily regarding family relationships and argument. this integrity. courts have also conclud- Other right implicated ed no fundamental Rights by G. Afforded the Maine Consti- truthful informa- public disclosure of tution Paul, See, at e.g., tion. U.S. urge of us a (holding publication 70] S.Ct. 1155 a The Does to establish [¶ act, arrest, of an right privacy, right record an official such as fundamental a any right); reputation, does not of a implicate protection right fundamental and (“[W]e Moore, I, under 410 F.3d at 1345 can find no fundamental fairness article sec- history or 1 of the have tradition would elevate the tion Maine Constitution. We already held of right.... issue to a fundamental that SORNA 1999 does [A] here publication implicate rights privacy information state’s of truthful fundamental

739 reputation under the Maine registry. Constitu sovereign State’s immunity in the context of the procedural tion Does’ bars recovery payments retroactive vol process and substantive due claims. We untarily made to the State. See Wellman expand interpretation also decline to our Servs., Dep’t Human 574 A.2d Maine’s general Constitution include a (Me.1990) 884 (holding that sovereign im right ized to “fundamental fairness.” See munity barred recovery retroactive any ¶60, 13, Bagley, 1999 ME 728 A.2d 127 previously payments). made The Does (“[W]e traditionally have great exercised voluntarily paid the fee. See State v. Van restraint when asked to interpret our state Reenan, (Me.1976) (con 355 A.2d greater protections constitution to afford cluding that a defendant who voluntarily than those recognized under the federal submitted to a breath test in order to omitted)). constitution.” (quotation marks having avoid his suspended pursu license ant to a statute could not challenge the § H. MCRA and constitutionality of that statute because he The Does prospective [¶ seek relief 71] subject was not to the sanctions of which protect them from registering complained.). he future, and an award of the costs associat- state, A including a state registering

ed with and the fees associated official in his or her capacity, official is not with removing regis- their names from the person § within the meaning of 1983 or try. The trial court denied the Does’ mon- MCRA, barring the Does’ additional claims, etary finding they had not monetary claims. See Will v. Dep’t Mich. sought any prospective relief and that Police, 58, 64, 71, State 491 U.S. their claim for reimbursement was tanta- (1989); S.Ct. 105 L.Ed.2d 45 Jen mount to an damages award of and was ness, 637 A.2d at 1158. We per are not prohibited. thus by re-stylization suaded of the Does’ § Title 42 [¶ U.S.C.S. 72] states damage anything claims as other than who, that “[e]very person under color of monetary compensation from alleged past law], subjects, or [state causes to be violations. The court did not err in dis subjected, any citizen of the United States missing the monetary Does’ claims. ... deprivation of any rights, privi leges, or immunities secured the Con I. Summary Judgment laws, stitution and shall be liable to the party injured in an action at law.” The The Does contend that the MCRA, 4681-4685, §§ 5 M.R.S. pat summary factual record on judgment was terned after “provides pri inadequate for the trial court to rule on the vate cause of action for parties’ violations consti particular, cross-motions. they ” rights by tutional ‘any person.’ Jenness v. contend that there were insufficient facts Nickerson, (Me.1994). 637 A.2d for the court to decide the Does’ equal The Does have failed to protection establish that procedural and substantive SORNA of 1999 violated their constitution process due claims. rights, al thus barring their claim for pro persuaded by [¶ 76] We are not relief, spective which first raised on arguments Does’ that the record was inad-

appeal. equate. opposing summary Parties judg- ment, Does, We also conclude that in this case the have the bur- Does cannot claim a refund for the den of presenting sufficient evidence to $31 they paid to remove their names generate genuine from the a issue material fact. his offense after 56(c) higher or be rate C (“Judgment [C]lass shall P. M.R. Civ.

See any sexual offense but unrelated genuine is no sex if ... there ... rendered fact....”); activity. Estate any material as to issue Inc., Cargill, v. Pinkham brief, identify of ¶ two the Does reply In their (evaluating whether in the State de- facts included additional evidence enough “presented plaintiff of material facts statement fendants’ fact”); of material a issue genuine create denied, to the and which relate Does 57,ME Dep’t, 2009 Brewer Sch. Cookson time.13 of recidivism over rate (“Because has [plaintiff] A.2d 276 analysis, the dis- In the final [¶ 78] of material genuine a issue failed to raise and the the Does agreement between entering a did not err fact ... the court not con- disputed facts does State on defen- for summary judgment [the court the trial cern material issues dant]_”). failed to do so The Does pro- necessarily address further would here. Instead, policy constitute they ceedings. argument, facto In their ex [¶ 77] ad- appropriately that are considerations summary judgment argu- in their but not The legislative process. dressed ment, disputes refer to factual the Does agree upon do not parties fact that the denial of the they warranted claim import impediment is not an them or their for sum- cross-motion State defendants’ con- therefore summary judgment. in the Two facts were mary judgment. that sum- arguments the Does’ clude that facts and de- of material Does’ statement granted mary judgment improperly was The first State defendants. by nied unpersuasive. are relationship between concerns re- and the risk of number of convictions Attorney Fees J. evidence empirical “There is no cidivism: VII, I, III, IV, V, VI, Does accepted professional opinion that and no XVIII, XXIV, VIII, X, XIII, XVI, A sex who committed two Class person receive an they XLIII should 1985 would be more dan- offenses before attorney prevailing parties fees award as offender than one gerous in 2010 as a sex The § 1983 and the MCRA. pursuant such offense before who committed one were concluded that the Does trial court fact concerns whether 1985.” The second attorney fees be entitled to recover between sex offenders there is a relation on their motion prevail cause did not public offenses and who commit non-sex The court also summary judgment. for safety risks: “catalyst theory” was an found that evidence and no empirical There is no attorney recovering avenue unavailable that a sex opinion accepted professional law, if it Maine and even fees pursuant sex offense offender who committed one available, not entitled the Does were were or before 1995 a Class C followed theory. pursuant to that to recover activi- higher unrelated to sexual offense may trial court The as a sex ty dangerous is therefore more prevailing party fees to a attorney award pre 1995 sex offender in 2010 than a proceeding to enforce “in action or sepa- has not committed a offender who omitted, facts, higher years at 15 than 5 offense rates are citations 13. The two with their time, identify facts in (1) years.” four other the cumulative rate "Over brief, (2) admitted reply but the Does those their "The recidivism recidivism increases”: re- facts. that cumulative rates for STATIC-99 show

741 Bangs § v. Town The advance catalyst [¶ 83] 1983.” Does the provision ¶8, 955; Wells, 129, theory 2008 ME 834 see in Doe arguing that v. District At- (Lexis 1988(b) 2012). § 42 torney also U.S.C.S. led to the enactment of P.L.2009 ch. that similarly provides (effective 2009) 365, The MCRA 12, § Sept. B-3 date may attorney pre fees to a award (codified court 11202-A(1) § at 34-A M.R.S. § 4683. re vailing party. 5 M.R.S. We (2009)), providing exceptions for certain the trial court’s “determination re view registration requirements, and the liti- status for clear garding prevailing party Letalien, leading in gation legisla- error,” attorney review its denial (effec- enactment of P.L.2009 tive ch. 570 Bangs, an abuse of fees for discretion. 2010) (codified date Mar. tive at 34-A ¶ 129, 7, 955. 834 A.2d 11202-A, 11222,11225-A), §§ M.R.S. allev- iating the reporting requirements. The finding The trial court’s that the connection their parties were not is not between lawsuit and the prevailing Does fact, legislative too changes erroneous. The court ruled in fa- tenuous. In clearly the State on all of the the time John I’s case vor of defendants at Doe reached inus Co., Doe, plaintiff Does’ claims. See Portland expressly pur- had not 98, 32, Moreover, Instead, post 979 A.2d 1279. sued an ex claim.14 facto our restraining grant temporary orders does in analyzing decision an post ex satisfy prevailing-party require- claim, not triggered facto the recent legislative case, “the preliminary ment. the Does’ changes § to 34-A M.R.S. 11222. Because injunction[s] merely ... maintained the legislative changes to SORNA of 1999 quo, [they] effect a status did not material litigation, are the result of this we do legal parties’ relationship alteration catalyst not address the theory further. plaintiffs not pre- [are] and the therefore parties under See Advan-

vailing 1988.” IV. CONCLUSION Media, tage City Hopkins, 511 LLC foregoing reasons, For the [¶84] we (8th Cir.2008). 833, 837 F.3d affirm the trial court’s decision that SOR- The ofNA 1999 is not an unconstitutional ex “prevailing parties” pursuant facto Does’ post law. The other constitu- catalyst theory. catalyst theory The statutory challenges tional and are unper- “posits plaintiff ‘prevailing par that a is a suasive. ty’ if [the achieves desired lawsuit] entry is: because about a brought result volun [it] change in tary the defendant’s conduct.” Judgment affirmed. Home, Buckhannon Bd. & Care Inc. v. W. Res., Dep’t Health & Human Va. SILVER, J., with whom ALEXANDER 598, 601, 149 L.Ed.2d U.S. S.Ct. JABAR, JJ., join, dissenting. (2001). The State defendants contend respectfully dissent rejection because Supreme

that the Court’s of the requirements SORNA of 1999 are catalyst theory Buckhannon Bd. & Care Home, Inc. foreclosed an award of attor to those who have punishment completed ney paid society long to the Does. 532 U.S. at their sentences and back fees See learned, ago. already As we tragical- S.Ct. have Haskell, Doe, argument, oral nized 14. "At Doe’s counsel stated that State v. and Smith v. Doe, requesting he was not had decided the ¶ ME reconsider issue.” (citations omitted). recog- whether SORNA is ex facto as he n. 932 A.2d 552 in favor Maine, many weigh that them of of names shows of publication the in ly, here dangerous finding punitive. the statute the Internet is on pictures and registrants’ the dramatically affects and Restraint Disability A. Affirmative or Press, 2 Sex Associated

lives. See Offend- Homes, N.Y. Death in Their Shot to ers in State Letal We determined [¶ 88] 2006, A14; Mishra, 17, Raja Times, at Apr. to the [prior that “SORNA of 1999 ch. ien Others, to Kill May Have Wanted Suspect disability impose[d] a or amendment] Globe, B2. Apr. at Those Boston is minor nor restraint neither indi comply requirements with the do not who “quarterly, in-person verifi rect” because of 1999 face criminal sanctions SORNA of home, identity of location of cation and those on defendants imposed similar school, police a local employment and at proba- release or conditions of who violate station, including and fingerprinting the SORNA of requirements The tion. of a for re photograph, submission Does, post are ex they affect these life, undoubtedly is mainder one’s States laws that violate the United facto significant supervision form Nowhere else in Maine Constitutions. and ¶37, 985 A.2d 4. state.” of laws is an ex facto the realm such Now, who was registrant a lifetime sen permitted. violation 18,1999, is prior only to September tenced every required report writing ninety in re- do not that the dispute every years, five days report person and in may of 1999 be quirements SORNA in change unless there has been a address persons on sentences have enforced whose 11222(4-B) § appearance. 34-A M.R.S. or requirements since the imposed been (2012). a lower Admittedly, physi this is propri- 1999 took The SORNA of effect. predeces on the than cal burden offender SORNA of 1999 to current ety applying requirements acts’ sor offender appeal. is not at in this offenders issue every days person. in report ninety The whether, per- at issue is after a What is however, supervision, has level of state not imposed, has and after son’s sentence been changed way a material because the served, has that sentence been State State still maintains and distributes the new and onerous may add sentence amount of highly personal same informa au- and restrictions that were not burdens tion about offender. when the was sentenced. thorized offender gov- constitutional The of the requirements effect requirements to SORNA of of SORNA of unique reporting ern this issue not substantially If the State than impose can additional more burdensome re- here, notably, it can do it a driver’s Most if newing burdens restrictions license. for other offender fails to with re- completed comply sentences decides, society hindsight, porting provisions crime that in SORNA he subject liability, himself which tough enough exposes was not sanctions to criminal punitive time effect of the statute. the first around. reflects 11227(1)(2012) (provid- M.R.S. See 34-A ing that the first offense is Class D I. STATES CONSTITUTION UNITED crime). if an individual comparison, not to driver’s license he why There are reasons chooses renew his several [¶87] punishment simply permitted Although 1999 is to drive. SORNA of violates 1999 have changes States A look at SORNA of re- United Constitution. physical on the offend- of the factors duced burdens some Mendoza-Martinez er, the State’s supervision ing) and control over (noting public that the notification re the offender have not been reduced. This gimen of registry “calls to mind sham control, supervision recognized as we ing punishments once used to mark an Letalien, signifies punitive in effect of shunned”); offender as someone to be Doe SORNA of 1999. State, 999, 1012 (Alaska 189 P.3d & n. 98 2008) (noting that the act of registering is B. Historically Regarded Punishment as analogous shaming, but the dissemi Labeling a law’s burden as civil provision nation analogous). is The public instead of criminal does not reduce the does not have access pictures, home punishment level of attached to the bur- addresses, places and work of those con den, nor should it reduce the constitutional arson, robbery, embezzlement, victed of or protection connected to the burden.15 any other crime. acknowledge that Likewise, a imposed burden that was as there stigma is a connected to criminal part of a sentence does not become less behavior and there often is retribution punitive if it imposed part is later as of a public against those who have commit regulatory requirement parallels sen- However, ted crimes. in no other area of tencing. the criminal law do we allow the public to Letalien, In provided [¶91] we a de- have personal access to such information. description tailed of the evolution of the Because these Does have not committed registry sex offender in Maine. 2009 ME additional sex crimes since completed ¶¶ 130, 4-12, 985 aspect A.2d One of the sentences, their they were not required to registry that has evolved is its relation to be on a registry when the registry system sentencing procedures. Beginning in was first 1996, Placing created. them on the registration requirements of registry SORNA of 1995 now imposed part were forces them to face additional P.L.1995, sentence. ch. public 4. Subse- ridicule. Watch, See Human Rights quently, the statute was amended to in- Easy No Answers: Sex Laws in Offender struct the court to order convicted offend- (2007), the US 78-79 http:// available at to register ers at the time it imposed a www.hrw.org/reports/2007/us0907/us0907 sentence, but it longer was no “part a web.pdf (discussing impact the serious P.L.200B, 711, § sentence.” ch. B-13. Al- dissemination of registration information though the statutory language removed registrants). has on the the registry from the direct realm of sen- In State v. Freeman we found tencing, not, itself, change this “did in the civil proceeding by which some make requirements less OUI laws were punitive enforced had con- punitive or otherwise remove the constitu- Letalien, infirmity.” sequences tional type that characterize ¶ 74, (Silver, J., 985 A.2d 4 concurring). prosecution. criminal 487 A.2d (Me.1985) 1176-77 (finding the statute void stigma [¶ 92] The pub- associated with frustrated). because purpose its was lication on the Internet is demonstrative of our analysis of the civil proceeding, OUI SORNA of 1999’s role as punishment and considered, we part, Doe, effect that the punitive its effects. See Smith v. 84, 115-16, pre-charging U.S. 123 S.Ct. mechanism for defen- OUI (2003) J., L.Ed.2d (Ginsburg, dissent- dants had reputation. on one’s Id. at ¶¶ 73-74, 15. The issue of whether a burden civil or State v. (Silver, J., criminal was discussed in further detail in A.2d 4 concurring). XIX, III, X, XXIII, consideration, noted lates In this 1178.16 pre-charging present from XLIII. characteristics stigma Such pro with the civil associated mechanism of the regardless Legislature. of the intent paralleled the offense for the OUI ceeding Supreme As the Court said its Indiana pro with the criminal stigma associated reg- state’s sex offender discussion of that result, we that the As a found ceeding. Id. istration act: true “highly suggestive of the stigma was to some extent the deter- It true that Id.; procedure.” the nature of criminal rent and notifi- effect of the Anton, 703, 463 708 A.2d see also State Act merely cation of the is provisions (Me.1983) stig lack of (noting the criminal regulatory function. incidental to its of traf ma the decriminalization regarding And no reason to believe the we have offenses). fic for Legislature purposes the Act passed who required offenders are [¶ Sex 94] vengeance of its own retribution — part to in subjected stigma to register credulity it strains to sake. Nonetheless offense, in underlying but also due to the suppose that the Act’s deterrent effect is part the dissemination of informa- due to substantial, that the Act does not or per- makes registry significant tion. The promote community condemnation of the readily to the sonal information available offender, which are in both of included public.17 impact of this The dissemination punishment. the traditional aims Internet, by the use heightened correlating thus the dissemination “to 371, (Ind. State, Wallace v. 905 N.E.2d 382 branding punishments shaming and used 2009) (quotation marks and omit citations Attorney, in Doe v. Dist. colonial times.” ted). Although accept we SORNA of (Alexan- 189, ¶55, 2007 932 A.2d 552 ME 1999 is not intended as retribution for sex Silver, JJ., dis- concurring). der and As crimes, effect, due, has that in offenders’ it in relation to the traditional cussed below part, tendency stigmatize reg to its stigma aims associated punishment, result, promotes istrant. As a com “[i]t publication potential with has the Internet munity in its most extreme condemnation and vigilante “retributive vio- cause Letalien, form: vigilantism.” 2009 ME against registrants.” lence Id. The his- ¶ 130, (Silver, 75, J., A.2d 4 concur 985 sentencing toric connection to criminal ring). and with shaming, along the retribution prior in [1Í96] As discussed SORNA below, and deterrence discussed demon- cases, by and cited with concern the Does punitive of 1999’s effect. strate SORNA case, against

in this acts of violence those C. Aims of Punishment Traditional registered Maine Sex Offender on the 2006, Registry unknown. “a promotes are not SORNA of 1999 retri- deterrence, re- and especially targeted bution and as it Canadian man murdered two school, Freeman, stigma, statutory citation and of the In State v. addition to name registrant considered that the defendant is still also offense for which the was convict- subject ed, detention to arrest and and the "civil” 10-year designation and as a lifetime or charge charge and enhances sentence 11221(9)(A) § registrant. M.R.S. 34-A 1175, subsequent OUI violations. 487 A.2d information, (2012). including the Additional (Me. 1985). 1178-79 mailing physical of a address and location residence, registrant’s easily domicile and provides public 17. SORNA of 1999 access through a public available written re- name, birth, photo- date each offender's (9)(B) (2012). quest. § 11221 M.R.S. 34-A residence, graph, city or town of domicile and college employment, or address of address of (1958) offenders, he had locat- 78 S.Ct. L.Ed.2d Maine sex who[m] Doe, (Brennan, J., registry concurring). website.” SORNA of ed on Maine’s ¶56 n. 932 A.2d 552 clearly promotes retribution de- (Alexander Silver, JJ., concurring); by inadvertently creating terrence an envi- 130, 75, see also stigmatized ronment where Does are (Silver, J., concurring). More re- way may ain invite violent attacks in- cent of SORNA continue to iterations stall rehabilitation. vigilantism pro-

vite the possibility via viding registry access Maine’s D. Excessiveness registry The use of Internet website. requires [¶ 98] SORNA 1999 defen- anyone, registries anywhere allows of statutorily specified dants convicted sex world, unlimited to the in- to have access register. offenses 34-A M.R.S. formation. 11203(5)-(8)(2012). registry widely the of exposing In addition to disseminates information all sex of- about there vigilantism, fenders to of is evi acts fenders of convicted these crimes. The registries dence that do not achieve their only provided information public primary objective protecting public. of the upon which potential it can determine the (“The (2012) § pur See 34-A M.R.S. 11201 however, poses, each risk offender is the pose chapter public the protect of this is to statutory and citation name of the offense potentially dangerous registrants from and placed the offender registry. on the by enhancing offenders access informa registry, public, and therefore the concerning tion those and of registrants account, not does take other factors into fenders.”). Zgoba See also Kristen M. & distinguishing as such between individuals Bachar, Karen National of Institute Jus “who have been evaluated a clinical and tice, Registration Sex and Offender Notifi psychologist forensic and determined to be Jersey cation: Limited in New 2 Effect the of at lowest risk and reoffending, those (2009), https://www.ncjrs.gov/ at available multiple individuals who committed (finding that the pdffilesllnijl225k02.pdf crimes; toddlers; victimized infants and sex registry offender did not reduce the tortured, maimed, or their killed vic- number of rearrests for sex offenses or the 130, ¶77, tims.” 985 offenses). number of of sexual In victims J., (Silver, By A.2d 4 concurring). failing stead, registry may promote criminally the offenders, distinguish among regis- the by socially isolating deviant behavior of try purpose promoting pub- exceeds its of Prescott, Sex fenders. See J.J. Do Offend safety, its making registrants lic effects on Safe?, er Registries Regula Make us Less punitive. tion, (discussing Summer at 50 the “negative collateral for consequences” reg E. Evaluation of the Mendoza-Martinez istrants, ties, including loss of social Factors may in cause an increase criminal behav

ior). [¶ 99] We do determine whether a As Brennan in Trop Justice noted Dulles, has a on punitive statute effect based the “I think of more can no certain mere number factors way whom, in in of that demonstrate which to make a man Instead, such effect. these fac- perhaps, rest the seeds of antiso assess serious weight. cial tors their relative See Doe v. likely pursue behavior more further State, 189 activity place career of unlawful than to P.3d at The factors dis- derelict, here, stigma on him the of uncer majority’s cussed as well as the dis- many tain of his basic rights.” regarding of U.S. cussion whether the behavior is heightened stan crime, applying for a more that SORNA basis demonstrate already a Constitution, In the the Ex nota dard. Maine effect. Most punitive has I, in Facto Clause is located article requirements Post imposes SORNA bly, personal which declares the punish section historically regarded citizens, Maine’s while the rights to sen federal of their connections because ment in Post Facto is located article stigma. Addi Ex Clause associated and the tencing powers I, with section which describes stigma associated tionally, legislative limitations of the branch of to retribu the offenders subjects registry Compare deterrence, government. federal Me. promotes tion, in turn which Const, Const, I, I, § art. art. 11 with U.S. punishment. traditional aims which are proof placement cl. 3. The clause Overall, clear provide these factors Maine Constitution shows that effect overcomes punitive that the statute’s Smith, a right Maine establishes civil intent. See Constitution Legislature’s subject to ex people post to not be (setting at S.Ct. 538 U.S. laws, placement unlike the clause’s stan facto States constitutional forth the United Constitution, criminality of sex the which determining United States dard merely prohibits Congress enacting from registry). offenders of a part ex facto law as list of

an II. MAINE CONSTITUTION on powers Congress. limitations significant to a The distinction leads conse applies as it to SORNA 100] [¶ to that quence: obtain a declaration SOR- Does, the Maine violates Constitution. the in prohibition NA of 1999 is violation of the an inde- provides The Maine Constitution Maine post on ex facto laws in the decision, Consti the Unit- pendent while basis tution, merely the need to overcome merely prescribes ed Constitution States constitutionality; un presumption the protections constitutional minimum the Constitution, they der the United States must afford their citizens.18 that states ’ proof have to show the “clearest that the that the Maine Constitution We conclude punitive legislative the despite statute distinguished from the United can be Smith, make Constitution, intent to it civil. See 538 that SORNA of States 92, 123 at 1140. Constitution, U.S. S.Ct. the Maine even 1999 violates if the pass it would muster under United Here, argues the State 102] [¶ Smith, Compare 538 States Constitution. presumed to have a SORNA 1999 is 105-06, (finding 1140 U.S. at S.Ct. effect, civil and thus be constitutional. registry offender’s constitution- Alaska sex in opinion emphasizes Our Freeman that a al United States Constitu- pursuant as originally statute such SORNA tion) Alaska, Doe v. 189 P.3d at with punish- as an criminal explicitly enacted (finding the Alaska sex offend- ment, criminal change cannot its nature registry pursuant unconstitutional er’s punitive simply by chang- its purpose constitution). the state Further, ing its label and its citation. as prior Ex discussion of the Mendoza-Mar- placement of the Post demonstrates, within the Maine factors statute’s Facto Clause Constitu tinez tion, pre- characteristics rebut compared placement punitive its Constitution, us SORNA of law is provides sumption United States ¶¶ 66-72, analysis pur- in-depth post ex A more facto Constitution, J., (Silver, the Maine rather than concurring). suant to Constitution, provided States the United non-punitive somehow civil and and thus ConstitutiQn’s the Maine

compliant with on ex

prohibition facto laws. SORNA exposes registrants

of 1999 to a level supervision, stigma, penalty that is contemplated by civil statutes. Simi-

larly, it promotes the traditional aims of

punishment exposing registrants

the same penalties newly as those convict- provide

ed. Whether these factors proof’

“clearest that the effect of the stat- punitive analy-

ute is is immaterial to the

sis under Maine Constitution. These

factors show there is no doubt that punitive

SORNA of 1999 has a effect that

successfully rebuts the presumption of

constitutionality and makes SORNA of

1999 a criminal law. reasons, For all foregoing

SORNA of 1999 is a retroactive application law, punishes criminal which those paid

who have their penalty society.

Thus, it violates the Maine and United

States Constitutions. Accordingly, we judgment

would vacate the Superior of the

Court and remand for a declaration that requirements of SORNA of 1999 can-

not be imposed, retroactively, plain- on the

tiffs bringing appeal. this

2013 ME 29 Margaret OF

ESTATE C. GRAY.

Supreme Judicial Court of Maine.

Submitted on Briefs: Feb. 2013.

Decided: March

Case Details

Case Name: John Doe I v. Robert Williams

Court Name: Supreme Judicial Court of Maine

Date Published: Mar 5, 2013

Citation: 61 A.3d 718

Court Abbreviation: Me.