Lead Opinion
In this appeal Michael Wade, Jason Reece Peterson, and Edwin Carey each argue that article I, section 13 of the Missouri Constitution, which prohibits the passage of any law “retrospective in its operation,” applies to criminal laws and, therefore, their charges under § 566.150,
This Court concludes-that § 566.150 is a criminal law. Therefore, the circuit courts erred in dismissing the charges against Peterson and Carey on the grounds that the statute was unconstitutionally retrospective as applied to them, but the circuit court correctly overruled Wade’s motion to dismiss. The judgments entered against the State with respect to Peterson and Carey are reversed, and the cases are remanded. The judgment in Wade’s case is affirmed.
Factual and Procedural History
The facts are undisputed in each case. The cases are consolidated for opinion because they present the same legal question.
State v. Wade
On November 25, 1996, Wade pleaded guilty to statutory sodomy in the first degree, § 566.062, child molestation in the second degree, § 566.068, and sexual abuse in the first degree, § 566.100. Wade was sentenced, pursuant to § 559.115, RSMo 1994, to participate in the Sexual Offender Assessment Unit program. Upon successful completion of the pro
On August 22, 2011, Wade was arrested at Castlewood State Park for violating § 566.150. Section 566.150 prohibits any individual who has pleaded guilty to, or been convicted of, or been found guilty of various sex offenses from “knowingly be[ing] present in or loiter[ing] within five hundred feet of any real property comprising any public park with playground equipment or a public swimming pool.” Wade was charged with knowingly being present within 500 feet of a public park with playground equipment. Wade filed a motion to dismiss the indictment, claiming the statute was unconstitutionally retrospective as applied to him in violation of article I, section 13. The circuit court overruled the motion, and Wade waived his right to a jury trial. After a bench trial, Wade was convicted and sentenced to three years’ imprisonment. The circuit court suspended execution of his sentence and placed Wade on probation for a period of five years. Wade appeals.
State v. Peterson
On January 20, 1998, Peterson was convicted of the offense of indecent behavior with a juvenile in Louisiana. Peterson resides in Missouri and is in compliance with all sex offender registration requirements. On June 17, 2011, a grand jury issued an indictment charging Peterson with the crime of loitering within 500 feet of a public park in violation of § 566.150.
Peterson filed a motion to dismiss the charge against him as unconstitutionally retrospective in violation of article I, section 13. The State responded by arguing the retrospective ban contained in the constitution applied only to civil rights and proceedings, not to criminal proceedings, relying on the holding in Ex parte Bethurum,
The circuit court sustained Peterson’s motion to dismiss the indictment. The circuit court assumed the ban contained in article I, section 13 was not limited to civil statutes and found § 566.150 was an unconstitutionally retrospective law as applied to Peterson. The State appeals.
State v. Carey
On May 7, 1997, Edwin Carey pleaded guilty to the offense of statutory rape in the second degree in violation of § 566.034, RSMo Supp.1997. Carey is in compliance with all sex offender registration requirements.
In 2010, the State filed an information charging Carey with the offense of loitering within 500 feet of a public park in violation of § 566.150. Carey filed a motion to dismiss the charge against him, alleging that § 566.150 is unconstitutionally retrospective as applied to him because it imposed a new obligation that was not present at the time of his conviction in violation of article I, section 13. Carey’s motion alleged that § 566.150 became effective 12 years after his May 1997 guilty plea. The motion further alleged that laws similar to § 566.150 had been found unconstitutionally retrospective as applied to offenders convicted before the enactment of the law. The State responded to the motion by arguing that article I, section 13’s prohibition against laws retrospective in their operation applied only to civil rights and remedies.
Because these three cases involve the validity of a statute, this Court has exclusive appellate jurisdiction. Mo. Const, art. V, § 3.
Standard of Review
Whether a statute is constitutional is an issue of law that this Court reviews de novo. State v. Honeycutt,
The Prohibition of Laws Retrospective in Their Operation Does Not Apply to Criminal Laws
The United States Constitution
This Court recently held, in State v. Honeycutt, that the retrospective clause of article I, section 13 does not apply to criminal laws.
In the face of the long-standing technical legal meaning of these terms and Bethu-
Generally, this Court presumes, absent a contrary showing, that an opinion of this Court has not been overruled sub silentio. See Badahman v. Catering St. Louis,395 S.W.3d 29 , 37 n. 10 (Mo. banc 2013). Sub silentio is defined as “without notice being taken or without making a particular point of the matter in question.” Webster’s Third New International Dictionary 2279 (1976). “If the majority chooses to overrule [a case] it is far preferable to do so by the front door of reason rather than the amorphous back door of sub silentio.” Keller v. Marion Cty. Ambulance Distr.,820 S.W.2d 301 , 308 (Mo. banc 1991) (Holstein, J., dissenting). This presumption can be traced, at least in part, to the doctrine of stare decisis. “The doctrine of stare decisis — to adhere to decided cases — promotes stability in the law by encouraging courts to adhere to precedents.” Med. Shoppe Int’l, Inc. v. Dir. of Revenue,156 S.W.3d 333 , 334-35 (Mo. banc 2005). Under the doctrine of stare decisis, decisions of this Court should not be lightly overruled, especially when “the opinion has remained unchanged for many years.” Sw. Bell Yellow Pages, Inc. v. Dir. Of Revenue,94 S.W.3d 388 , 391 (Mo. banc 2002).
Importantly, “[t]he maxim of stare de-cisis applies only to decisions on points arising and decided in causes” and does not extend to mere implications from issues actually decided. Broadwater v. Wabash R. Co.,212 Mo. 437 ,110 S.W. 1084 , 1086 (Mo.1908). To assert that a decision has been overruled sub silentio is the same as to assert that the decision has been overruled by implication. This Court’s presumption against sub silentio holdings, therefore, is based not only on the general preference that precedent be adhered to and decisions be expressly overruled, but . also because the implicit nature of a sub silentio holding has no stare decisis effect and is not binding on future decisions of this Court. R.L. and F.R. did not expressly address whether article I, section 13 applies to criminallaws, and this Court must presume those opinions made no decision on the issue.
In addition to the usual presumption against assuming a case was overruled sub silentio, a careful review of these cases demonstrates that this Court— without consideration — presumed the laws invalidated in R.L. and F.R. to be civil in nature. In R.L., this Court stated, “The constitutional bar on retrospective civil laws has been a part of Missouri law since this State adopted its first constitution in 1820.”245 S.W.3d at 237 (emphasis added). The Court, without any briefing to suggest a contrary analysis, stated that “[t]he same long-standing principles applied in [ Doe v.] Phillips apply in this case.” Id. In Doe v. Phillips, this Court held that Missouri’s sex offender registration requirement was civil in nature and operated retrospectively in violation of article I, section 13.194 S.W.3d 833 , 850 (Mo. banc 2006). Based on the issues raised and discussed on the briefs of the parties, R.L. held that the residency requirement at issue there retrospectively imposed a new civil obligation in violation of the constitution. Id. at 237-38.
Similarly, the opinion in F.R. (concerning residency requirements and various Halloween restrictions) begins with the statement, “These two cases are simply cases that can be resolved by applying article I, section 13 in the same way as it was applied in Doe v. Phillips and R.L.”301 S.W.3d at 61 . As already noted, in both of these cases the Court stated that it was applying article I, section 13 to a civil law. The issue concerning whether article I, section 13 applied to criminal laws was not briefed by the parties in R.L. and F.R., and the Court made no formal analysis concerning the nature of the laws before it....
While this Court is not critical of counsel for the defendant making the argument that R.L. and F.R. reversed Bethurwm sub silentio, a fair reading of R.L. and F.R. demonstrates they do not hold that article I, section 13’s prohibition against laws retrospective in their operation applies to criminal laws. Neither case made an express holding to that effect, and the language used and authorities cited in each case demonstrate that the Court presumed the particular laws invalidated were civil laws without consideration or analysis of the issue.
As discussed more fully in the next section, in addition to holding that the retrospective clause does not apply to criminal laws, Honeycutt also held that when a law is challenged under either the ex post facto or retrospective clause of article I, section 13, it is essential that the analysis begins with a determination of whether the law being challenged is a criminal law or law affecting civil rights and remedies.
Section 566.150 is a Criminal Law
The question that this Court now must answer, and the dispositive one in this case, is whether § 566.150 is a criminal law. Honeycutt made clear that, when a law is challenged under either the ex post facto or retrospective clause of article I, section 13, it is essential that the analysis begins with a determination of whether the law under examination is civil or criminal.
To determine which provision of article I, section 13 the Court is required to apply, Honeycutt instructs that this Court utilize a two-part test for ascertaining whether a statute is criminal or civil in nature. Id. Pursuant to the test, the Court first will determine whether the legislature intended the statute to affect civil rights and remedies or criminal proceedings. Id. If the legislature intended to impose punishment, that ends the inquiry. Id. However, if the Court determines that the legislature intended the law to be civil, the Court then must determine whether the statutory scheme is so punitive in purpose or effect as to negate the intention to affect civil rights or remedies. Id. at 424-25. “Whether a statutory scheme is civil or criminal is first of all a question of statutory construction.” Id. at 424 (internal quotation marks omitted). As stated in Honeycutt,
The courts must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. An express legislative finding is one obvious indicator of legislative intent, but [ojther formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it establishes, are probative of the legislature’s intent.
If a statute is determined to create a civil regulatory scheme, the Court must then examine whether the civil scheme was so punitive either in purpose or effect as to negate [the State’s] intention to deem it civil. To analyze the effects of the regulation, [this Court] examine[s] whether, in its necessary operation, the regulatory scheme: (1) has been regarded in our history and traditions as a punishment; (2) imposes an affirmative disability or restraint; (3) promotes the traditional aims of punishment; (4) has a rational connection to a nonpunitive purpose; or (5) is excessive with respect to that purpose.
Id. at 424-25 (citations and internal quotation marks omitted).
Section 566.150 provides:
1.Any person who has pleaded guilty to, or been convicted of, or been found guilty of:
(1) Violating any of the provisions of this chapter or the provisions of subsection 2 of section 568.020, incest; section 568.045, endangering the welfare of a child in the first degree; subsection 2 of section 568.080, use of a child in a sexual performance; section 568.090, promoting a sexual performance by a child; section 573.023, sexual exploitation of a minor; section 573.025, promoting child pornography; or section 573.040, furnishing pornographic material to minors; or (2) Any offense in any other state or foreign country, or under federal, tribal, or military jurisdiction which, if committed in this state, would be a violation listed in this section; shall not knowingly be present in or loiter within five hundred feet of any real property comprising any public park with playground equipment or a public swimming pool.
2. The first violation of the provisions of this section shall be a class D felony.
3. A second or subsequent violation of this section shall be a class C felony.
Section 566.150 is part of the criminal code, appears on its face to be a criminal statute, and does not explicitly indicate that the purpose of the statute is to protect the public by alerting them to sex offenders in their area. The statute is not a part of a civil regulatory scheme. Section 566.150 is located in Title XXXVIII of the Revised Statutes of Missouri, titled “Crimes and Punishment; Peace Officers and Public Defenders.” Chapter 566 is titled “Sexual Offenses.”
Most significantly, § 566.150 does not depend on a sex offender’s registration as a sex offender. In fact, § 566.150 does not reference the sex offender registration list. An offender is guilty of violating § 566.150 independently of any registration requirement.
In addition to these obvious considerations, § 566.150 carries a very severe punishment. The obvious purpose to punish is distinct from the purpose of registration, which as discussed in R.W., is to protect public safety by giving the public and public agencies information about sex offenders.
The purpose of § 566.150 is not to provide the public with any information whatsoever, but to punish a person who was convicted of one of the enumerated sex offenses when that person knowingly loiters within 500 feet of, or is present in, a park with playground equipment or a swimming pool. The General Assembly intended for this statute to punish felons, who had been convicted of committing specific, enumerated crimes, for engaging in future conduct that the General Assembly determined should be prohibited. While this necessarily also has a positive impact on public safety — as do all criminal statutes — this impact is directly related to past criminal conduct independent of any civil regulatory scheme designed for the purpose of giving the public greater access to information concerning certain prior sex offenders. The rationale is no different from punishing any prior felon for possessing a firearm in the future.
Furthermore, even if the legislature had intended this statute to aid the sexual registration system — which it does not do in any practical manner — the statute is so punitive in effect as to negate that purpose. In the second part of the two-part analysis, this Court considers whether in its necessary operation, the regulatory scheme: 1) has been regarded in our history and traditions as a punishment; 2) promotes the traditional aims of punishment;
Section 566.150 is the type of statute that has been regarded as punishment throughout our history. The statute seeks to punish conduct that necessarily occurs subsequently to the conviction of a prior offense. In that respect, it is very similar to the legislative prohibition of any felon— not necessarily dangerous felons — from possessing firearms.
This statute does not require registration, and it does not provide any information to the public. Section 566.150 is designed solely to criminalize future conduct. This Court in R.W. distinguished sex offender registration statutes from those that punish on the grounds that sex offender registration statutes make information publicly available and do not physically confíne or restrain the movement of the registrant.
Turning to the second factor, § 566.150 also promotes the traditional aims of punishment. “Two traditional aims of punishment are deterrence of future crimes and retribution for past crimes.” Id. Section 566.150 serves both of these aims of punishment. It serves a deterrent effect in the same manner as other criminal statutes by making certain conduct punishable by imprisonment. It is retributive for much the same reason: engaging in prohibited future conduct is punishable by imprisonment. Moreover, a second violation of this statute is punished more severely than a first offense.
Turning to the third factor, § 566.150 imposes a direct and affirmative restraint on a certain class of defendants. It prohibits anyone who has violated one of the enumerated statutes from being present in or loitering around certain public parks. This is unlike a registration statute that requires only that the defendant register and does not prohibit or restrain particular future conduct.
Finally, § 566.150 is excessive with respect to any regulatory purpose. In R.W,, this Court found that purely sex offender registration statutes were not excessive because they provided aid to law enforcement when investigating future offenses and because registration statutes did not impose a substantial physical or legal impediment on a registrant’s ability to conduct his or her legal affairs. Id. at 70. Section 566.150 does not aid in the investigation of future crimes. It creates a new crime for those with prior convictions for certain crimes based on certain future conduct. Section 566.150 is far more punitive than requiring a person with a prior sex crime conviction to register as a sex offender.
Properly analyzed pursuant to Honey-cutt, § 566.150 is a criminal statute. As a criminal statute, § 566.150 is not subject to article I, section IB’s prohibition against laws retrospective in their operation. No party in any of the consolidated cases raised an alternative argument that § 566.150 violates article I, section 13’s prohibition of ex post facto laws.
Because an appellate court is not a forum in which new points will be considered, but is merely a court of review to determine whether the rulings of the trial court, as there presented, were correct, a party seeking the correction of error must stand or fall on the record made in the trial court, thus it follows that only those objections or grounds of objection which were urged in the trial court, without change and without addition, will be considered on appeal.
Id. Absent plain error, this Court will not find that a lower court erred on an issue that was not put before it to decide. Id.
Conclusion
As recently reaffirmed in Honeycutt, the retrospective clause of article I, section 13 does not apply to criminal laws. Because § 566.150 is a criminal statute, the circuit court erred in dismissing the charges against Peterson and Carey on the ground that the statute was unconstitutionally retrospective as applied to them, but correctly overruled Wade’s motion to dismiss. The circuit courts’ judgments are reversed,
RUSSELL, C.J., and BRECKENRIDGE, J., concur in opinion of WILSON, J.
DRAPER, J., dissents in separate opinion filed.
Notes
. All statutory references are to RSMo Supp. 2010 unless otherwise indicated.
. U.S. Const, art. I, sec. 9, cl. 3 ("No Bill of Attainder or ex post facto Law shall be passed.”); U.S. Const, art. I, sec. 10, cl. 1 ("No state shall ... pass any ... ex post facto law.... ”).
. See Colo. Const, art. 11, sec. 11; Ga. Const, art. I, sec. 1, para. X; Ind. Const, art. XI, sec. 12; Md. Decl. of Rts., art. 17; N.H. Const. Part I, art. 23; Ohio Const, art. II, sec. 28; Tenn. Const, art. I, sec. 20; and Tex. Const, art. I, sec. 16.
. See Mo. Const, art. XIII, sec. 17 (1820) ("That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, can be passed, nor can the person of a debtor be imprisoned for debt after he shall have surrendered his property for the benefit of his creditors in such manner as may be prescribed by law.”); Mo. Const, art. I, sec. 28 (1865) ("That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, can be passed.”); Mo. Const, art. II, sec. 15 (1875) ("That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be passed by the General Assembly.”).
. Violation of the residence restriction was a class D felony for the first violation and a class B felony for any subsequent violation. Violation of the Halloween restrictions was a class A misdemeanor.
. The dissent hypothesizes that because R.L. found it unnecessary to address the lower court’s alternative finding that the law at issue was an ex post facto law, this Court should imply that the Court in R.L. "found the statute's effect to be civil rather than criminal, and therefore, affirmatively analyzed it as a retrospective, regulatory law.” Dissent op. at 443. The problem with this line of logic is that it relies on speculation rather than the express words of this Court's opinion. As this Court made clear in Honeycutt — and as has already been set out here — this Court speaks through its written opinions, and only express holdings are to be given any stare decisis effect. Neither F.R. nor R.L., even considered it a factor or analyzed whether the laws at issue were civil.
. The dissent questions why this Court does not completely overrule R.L. and F.R. To overrule R.L. and F.R. outright would require this Court to examine the laws at issue in those cases under the Honeycutt two-part test, which is fully outlined in the next section, and make a determination as to whether the laws are civil or criminal. As Honeycutt cautioned, "No case should be reversed unless the legally dispositive issue is necessary to the resolution of the pending case. To do otherwise could result in an under-informed or under analyzed holding." Honeycutt,
. This Court first applied this test in R.W. v. Sanders to determine whether Missouri’s sex offender registration statute was criminal or civil.
The Court found that requiring registration as a sex offender: 1) did not fit our history as a punishment; 2) did not promote the traditional aims of punishment because it did not deter crime and was not retributive; 3) did not impose a significant affirmative disability because it only required a defendant to register; 4) served a legitimate non-punitive purpose of "public safety;” and 5) was not excessive because of the grave concerns over recidivism of sex offenders. Id. at 69-70. The Court determined that Missouri’s sex offender registration statute was not so punitive as to overcome the legislature’s intention to create a civil regulatory scheme and was, therefore, civil in nature. Id. at 70.
. The manner of the statute’s codification is just one factor in the determination of whether a law is civil or criminal. This same factor was used in both Honeycutt and R.W. to help determine whether the statutes at issue in those cases were civil or criminal. While it is not dispositive, it may help shed light on the issue. Of course, the practical punitive effect of the statute has great weight in these situations, and should be examined, as it is here, in the determination of whether the legislature intended for the statute to be civil or criminal.
. Section 571.070 provides:
1.A person commits the crime of unlawful possession of a firearm if such person knowingly has any firearm in his or her possession and:
(1) Such person has been convicted of a felony under the laws of this state, or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony; or
(2) Such person is a fugitive from justice, is habitually in an intoxicated or drugged condition, or is currently adjudged mentally incompetent.
2. Unlawful possession of a firearm is a class C felony.
3. The provisions of subdivision (1) of subsection 1 of this section shall not apply to the possession of an antique firearm.
. Despite the fact that § 571.070 and § 566.150 are nearly identical to one another, and despite the fact that each serves to impose an additional regulation on a person who has previously violated a. criminal statute, not a single member of this Court, in Honeycutt, asserted that § 571.070 is a civil law.
. Though the dissent states that ‘A.W.’s [two-step] approach is proper under this Court's jurisprudence, which requires the Court to look at a law’s substantive effect rather than its nominal label[,]" the dissent does not engage in the second part of the analysis. Dissent op. at 444. In the second part of the test, the Court is required to determine whether the statute at issue is so punitive as to negate any intention of the legislature to deem it civil. While the dissent argues that the legislature intended § 566.150 as civil, it does not examine any of the factors involved in the second part of the analysis in order to refute this Court’s holding that the effect of the statute is so punitive as to negate any legislative intention that the statute be deemed civil.
. Any ex post facto law challenge to § 566.150 would not have been successful. As this Court recently reaffirmed in State v. Harris, there is no ex post facto violation when a statute is applied to conduct completed after its enactment.
Concurrence Opinion
I concur in the reasoning and conclusions in the majority opinion. I write separately, however, to express concern over the Court’s increased willingness to draw inferences as to legislative intent from the codification (i.e., the structure and placement by title, chapter and section) of new provisions enacted by the General Assembly. Such inferences are of doubtful validity and should be indulged, if at all, only after careful analysis of the codification process and its effect on the language actually voted upon and approved by the legislature.
The majority opinion correctly states that it is solely a question of statutory construction whether a particular enactment is a criminal statute (and, therefore, is constrained only by the portion of article I, section 13 prohibiting ex post facto laws) or a statute affecting civil rights and remedies (and, therefore, is constrained only by the portion of article I, section 13 prohibiting laws that are retrospective in their operation). Maj. Op. at 434. In order to divine the General Assembly’s intent on this question, the majority opinion states that the Court may explore various “formal attributes of a legislative enactment, such as the manner of its codification....” Id. (quoting State v. Honeycutt,
As authority for the proposition that a statute’s location and structure imposed during the codification process can have probative value on this question of statutory construction, the majority opinion cites to R.W. v. Sanders,
R.W., Honeycutt and the majority opinion here suggest that the Court is increasingly and unquestioningly willing to draw critical inferences regarding the General Assembly’s intent solely from the location within the Revised Statutes of Missouri that is assigned to a new statute during the codification process. Clear and correct precedent spanning nearly all of this Court’s existence preclude such inferences regardless of whether the question before the Court is if the legislature intended a new enactment to be a criminal statute for purposes of article I, section 13, or any other question of statutory interpretation. The process that newly enacted language undergoes after it leaves the General Assembly and before it appears in the Revised Statutes precludes any reasonable reliance on placement or structure of a
Article III, section 34 of the Missouri Constitution provides: “In the year 1949 and at least every ten years thereafter all general statute laws shall be revised, digested and promulgated as provided by law.” This process is governed by Chapter 3 of the Revised Statutes of Missouri, including section 3.060, which provides:
The [joint committee on legislative research], in preparing editions of the statutes and supplements or pocket parts thereto, shall not alter the sense, meaning, or effect of any legislative act; but may renumber sections and parts of sections thereof, change the wording of headnotes, rearrange sections, change reference numbers or words to agree with renumbered chapters or sections, substitute the word “chapter” for “act” or “article” and the like, substitute figures for written words and vice versa and change capitalization for the purpose of uniformity and correct manifest clerical or typographical errors.
[Emphasis added.]
The effect of this constitutional charge and its implementing legislation is that the language of a given enactment exclusively is the province of the General Assembly (with the Governor’s approval or inaction), but where that language is codified in the revised statutes and the structure in which that language will be published is the province of the Joint Committee on Legislative Research created by Mo. Const, art. Ill, sec. 35, and the Revisor of Statutes acting under the Committee’s supervision. § 3.070, RSMo 2000.
Until recently, this Court had a long and unblemished record of refusing to recognize any probative value in the codification or structure of legislative enactments on the question of statutory interpretation. The bold-faced headings (or “catch words”) assigned to each title, chapter and individual section throughout the Revised Statutes are the work solely of this codification process and, therefore, shed no light whatsoever on the General Assembly’s purposes or intent. State ex rel. Agard v. Riederer,
This Court also has recognized that the placement and structure of newly enacted language is no more probative of the legislature’s intent than the bold-faced headings added to the Revised Statutes by the Committee and the Revisor. See, e.g., In re Marshall,
In this case, the majority opinion’s conclusion that section 566.150 is a criminal law for purpose of applying article I, section 13 plainly is correct. The support for that conclusion is overwhelming, as demonstrated throughout the majority opinion.
Accordingly, I concur in the reasoning and conclusions of the majority opinion but write to caution future advocates against assuming that, on questions of statutory interpretation, the Court reflexively will credit matters of placement and structure imposed on a legislative enactment during the codification process in order to divine the General Assembly’s intent. The Court should not — -and historically has not— drawn such inferences without a far more compelling case that the inferences are warranted than has been made here.
. One significant indicator of the legislature's intent is the title of House Bill 62 (2009), which states that it is an act repealing various sections and enacting “in lieu thereof seventy-
. For example, it should take more than a website printout, which does not even purport to be an authoritative record of what the General Assembly actually voted on, to support the argument that the section number "566.150” was assigned to this new enactment by the General Assembly itself in House Bill 62 and not during the codification process. And, even if the legislature voted on and passed the assignment of that section number to this new criminal law as part of House Bill 62, I am loathe to infer anything from the ebb and flow of legislative practice on this point when it takes place in a constitutional and statutory context in which the placement and structure of new statutes in the Revised Statutes of Missouri is to be done by the Committee and the Revisor rather than by the General Assembly.
Dissenting Opinion
I respectfully dissent from the principal opinion in two respects. First, I question the extent to which this Court’s holdings in R.L. and F.R. are valid after the issuance of this opinion. Second, while it may be codified in the criminal code, that is not determinative where, as here, section 566.150’s primary effect is regulatory. Therefore, I disagree that section 566.150 is a criminal law. Just as the United States Supreme Court held that sexual predator laws are primarily civil in nature, even though they require incarceration of those subject to their terms, so too I believe section 566.150 should be construed as a civil law and subject to retrospective, rather than ex post facto, examination under article I, section 13. Upon application of the retrospective analysis set forth in R.L. and F.R., I would find section 566.150 is a law retrospective in its operation as applied to Wade, Peterson, and Carey. Accordingly, I would reverse the circuit court’s judgment with respect to Wade and affirm the circuit courts’ judgments with respect to Peterson and Carey.
Validity of R.L. and F.R.
The principal opinion states that Bethu-rum has not been overruled sub silentio by this Court’s later decisions in R.L. and F.R. I agree with this determination. However, the principal opinion goes on to state that this Court presumed, without consideration, that the regulatory sex offender laws invalidated in R.L. and F.R. were civil in nature and that the issue was not briefed or argued to suggest a contrary analysis.
In other words, while the principal opinion relies heavily on the fact that the distinct and finely drawn argument of whether the retrospective clause of article I, section 13 applies to criminal laws presented here was not developed in R.L. or F.R., this Court had an opportunity to resolve the issue in R.L. and F.R. because these arguments were presented in the alternative. Perhaps, instead of reading R.L. and F.R. to conclude this Court assumed, without due consideration, that the laws at issue were civil, as the principal opinion surmises, it is equally reasonable to find this Court carefully considered the alternative ex post facto challenges raised and found the retrospective analysis was proper and dispositive of the issue on appeal.
The principal opinion goes on to state that, to the extent that R.L. and F.R. conflict with this Court’s recent holding in Honeycutt due to their failure to perform any analysis to determine whether the statute being challenged was a criminal law, they no longer should be followed. It appears, therefore, that R.L. and F.R. have been overruled in part for failure to apply the Smith factors to determine whether a statute is criminal or civil, but the ultimate holdings in those cases remain valid. I agree the clearer and more precise analysis of this issue should include the application of the Smith factors at the outset. However, the principal opinion’s conclusion that R.L. and F.R. still have validity in light of today’s holding is perplexing and incongruous, especially when one considers that in the principal opinion’s view, this Court failed to engage in the proper analysis, and if it were to apply the Smith factors, R.L. and F.R. ostensibly reached the wrong result given that the statutes at issue in those cases are substantially similar to section 566.150. This flawed reasoning leaves one wondering why the principal opinion failed to overrule both opinions in their entirety rather than permit them to stand as anomalies with questionable precedential value.
Section 566.150 is a Civil Law
The principal opinion holds that section 566.150 is a criminal law after applying the Smith factors, as articulated in this Court’s holding in R.W. I disagree. I believe this regulatory statute is part of the unique statutory scheme that has its genesis in the sex offender registrations statutes, which this Court has determined to
RW.’s approach is proper under this Court’s jurisprudence, which requires the Court to look at a law’s substantive effect rather than its nominal label. Here, while the laws are included with other criminal laws and provide criminal sanctions if they are violated, an examination of this Court’s precedent addressing sex offender registration laws and the laws that regulate the registrants’ conduct persuade me that section 566.150 is a civil law. In Smith, the United States Supreme Court upheld the Alaska sex offender registration statutes, commonly referred to as “Megan’s Law,” in the face of a challenge that they violated the ex post facto ban in the United States Constitution. Smith,
In R.W., this Court applied the Smith factors to a challenge raised by a convicted sex offender who filed a declaratory judgment action and injunctive relief to prevent enforcement of Missouri’s Megan’s Law. R.W.,
This Court reaffirmed R.W.’s rejection of the ex post facto challenge to the registration and notification requirements in Phillips “because Missouri’s ex post facto clause applies only to criminal laws,” while R.W. found the statutes were civil and regulatory in nature. Phillips,
In R.L., this Court held section 566.147, which imposed residency restrictions on a registered sex offender who committed sex offenses before the statute’s effective date, violated the constitutional prohibition against the enactment of retrospective laws. R.L.,
Similarly, in F.R., this Court invalidated section 566.147, which imposed a school residency requirement prohibiting a registered sex offender from residing within 1,000 feet of any school or child-care facility, and section 589.426, which prohibited a convicted and registered sex offender from going outdoors, turning on outdoor lights, and handing out candy on Halloween, because they violated the constitutional prohibition against the enactment of retrospective laws. F.R.,
Contrary to the principal opinion’s suggestion otherwise, the fact that the laws at issue here are codified in the portion of the statutes governing criminal rather than civil laws does not call for a different result. The United States Supreme Court itself has so recognized in cases such as United States v. One Assortment of 89 Firearms,
The sexually violent predator law does not impose punishment, but rather is rehabilitative. The sexually violent predators’ confinement is for the purpose of holding the person until his mental abnormality no longer causes him to be a threat to others, and he is permitted to be released on a showing that he is no longer dangerous. The law seeks, above all else, the protection of society against a particularly noxious threat: sexually violent predators.
Holtcamp,
Other examples of cases in which laws were found to be and were treated as civil even though their violation carries criminal penalties include United Pharmacol Co. of Missouri, Inc. v. Missouri Bd. of Pharmacy,
In support, United Pharmacol cited J.S. v. Beaird,
Similarly, here, all of these statutes, including section 566.150, are designed to protect the public from harm and derive from offenders having been required to register, which has been deemed nonpuni-tive and civil in nature. Smith made it clear that although violations of these statutes may be labeled as criminal and carry criminal penalties, there are also rational connections to regulatory and non-punitive purposes, such as protecting the public from harm. Smith,
Section 566.150 contains identical language regarding enumerated sex offenses as the statute in R.L. and F.R. While it is true this statute does not require an offender to register, as noted by the principal opinion, section 566.150 only captures and burdens those individuals required to comply with Missouri sex offender registration laws in that all of the enumerated sex offenses contained in this statute require an offender to register. Thus, when applying this Court’s most recent precedent addressing statutes that regulate sex offender conduct, I would find section 566.150 is a civil law and subject to retrospective examination under article I, section 13.
I would further hold that section 566.150 is a law retrospective in its operation as applied to Wade, Peterson, and Carey. A law is retrospective in its operation if it takes away or impairs vested or substantial rights acquired under existing laws or imposes new obligations, duties, or disabilities with respect to past transactions. Hess v. Chase Manhattan Bank, USA, N.A.,
Conclusion
I believe section 566.150 should be construed as a civil law and subject to retrospective, rather than ex post facto, examination under article I, section 13. Upon application of the retrospective analysis set forth in R.L. and F.R., I would find section 566.150 is a law retrospective in its operation as applied to Wade, Peterson, and Carey. Thus, I would reverse the circuit court’s judgment with respect to Wade and affirm the circuit courts’ judgments with respect to Peterson and Carey.
. Similarly, although unpublished, in State v. Jones, the court noted that even though Ohio codified its sex offender registration laws as criminal, the court found them to be inherently civil in nature because they bore the attributes of a civil rather than criminal sanction. State v. Jones, 97 CA 42,
. Smith stated, "A sex offender who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual's original offense. Whether other constitutional objections can be raised to a mandatory reporting requirement, and how those questions might be resolved, are concerns beyond the scope of this opinion. It suffices to say the registration requirements make a valid regulatory program effective and do not impose punitive restraints....” Id. at 102,
. The principal opinion states in footnote 11 that these two statutes are “nearly identical to one another" and that it was not asserted in Honeycutt that section 571.070 was a civil law. These two statutes are only identical to the extent the legislature has drafted them in the same format as other criminal statutes. This means very little in the analysis, given that Missouri's Megan's Law, which is clearly civil, was drafted structurally by the legislature in the same manner. When examining their substance and regulatory effect, it is akin to comparing apples to oranges. As such, there was no need for any member of this Court to make the assertion that the statute in Honeycutt was a civil law. In Ho-neycutt, there was no dispute section 571.070 was anything other than a criminal law, but rather, the issue was whether the retrospective analysis applied to both civil and criminal laws.