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State v. Haskell, attorneys and footnotes

Attorneys for State:

Norman R. Croteau, District Attorney
Richard R. Beauchesne, Asst. Dist. Atty. (orally)
P O Box 179
South Paris, ME 04281

Attorney for defendant:

Douglas D. Hendrick, Esq. (orally)
P O Box 370
Cornish, ME 04020
FOOTNOTES******************************** {*} Wathen, C.J., sat at oral argument and participated in the initial conference but resigned before this opinion was adopted. {1} . The sex-offender registration requirements at issue in this case can be found at 34-A M.R.S.A. §§ 11221 et seq. See infra notes 10 &13 for the relevant provisions. {2} . Section 255 provides, in pertinent part: 1. A person is guilty of unlawful sexual contact if the person intentionally subjects another person to any sexual contact, and: . . . . C. The other person, not the actor's spouse, has not in fact attained the age of 14 years and the actor is at least 3 years older; . . . . 2. Unlawful sexual contact is a Class D crime, except that a violation of . . . subsection 1, paragraph C . . . is a Class C crime. . . . . 17-A M.R.S.A. § 255(1)(C) (Supp. 2000). {3} . Although his "notice of appeal" suggests Haskell is appealing from the judgment of conviction, he does not discuss that issue in his brief. Instead, Haskell's appeal focuses entirely on the appropriateness of the sentencing court's application of SORNA provisions to him; even if SORNA was found to be inapplicable in this case, such a finding does not affect the underlying conviction. Haskell's failure to brief or argue any basis of error regarding the judgment of conviction, therefore, constitutes a waiver of that issue. State v. Barlow, 320 A.2d 895, 898 (Me. 1974) (holding that, though appellant's points on appeal list other issues, his failure to brief or argue them constitutes a failure to preserve those issues). {4} . The three enactments were consolidated into one law by P.L. 2001, ch. 439, § 000-5 or 6. {5} . The U.S. Constitution states, in part: "No state shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts . . . ." U.S. Const. art. I, § 10, cl. 1. The Maine Constitution provides: "The Legislature shall pass no bill of attainder, ex post facto law, nor law impairing the obligation of contracts, and no attainder shall work corruption of blood nor forfeiture of estate." ME Const. art. I, § 11. {6} . In State v. Myrick, 436 A.2d 379 (Me. 1981), upon which the State relies, we promulgated a different test for determining whether a statute was penal or civil in nature. State v. Myrick, 436 A.2d 379, 383 (Me. 1981). Adopting the analysis of a First Circuit decision, we stated that the proper test for determining whether a statute was penal in nature is as follows: [I]f the past conduct which is made the test of the right to engage in some activity in the future is not the kind of conduct which indicates unfitness in the activity, it will be assumed, as it must be, that the purpose of the statute is to impose an additional penalty for the past conduct. If, however, the past conduct can reasonably be said to indicate unfitness to engage in the future activity the assumption will be otherwise. Id. (quoting Cases v. United States, 131 F.2d 916, 921 (1st Cir. 1981)). The test put forth in Myrick and Cases, however, is much narrower in scope and pertains to instances where a later statute proscribes a right to affirmatively take part in, or practice, a given activity because of a prior misconduct. See Myrick, 436 A.2d at 380 (upholding statute that prohibits persons who have been convicted of a crime punishable by one year or more imprisonment from owning or having in his or her possession a gun); Cases, 131 F.2d at 921 (stating Federal Firearms Act is not unconstitutional as an "ex post facto law," as applied to one who had been convicted of aggravated assault and battery before the passage of the act, on ground that it imposed on him an additional penalty for such crime, since Congress sought by the act to protect the public by preventing the transportation and possession of firearms and ammunition by those who, by their past conduct, had demonstrated their unfitness to be trusted with such dangerous instrumentalities). The authorities upon which the Cases court relied in establishing the test have a similar fact pattern, i.e., prior conduct precludes right to participate in future activity. See Hawker v. New York, 170 U.S. 189, 198-99, 18 S.Ct. 573, 42 L.Ed. 1002 (1898) (upholding statute that made a prior felony conviction conclusive evidence of the lack of fitness to practice medicine); Dent v. West Virginia, 129 U.S. 114, 128, 9 S.Ct. 231, 235, 32 L.Ed. 623 (1889) (upholding statute requiring every practitioner of medicine in W.Va. to obtain a certificate from the State Board of Health that he or she is a graduate of a reputable medical college; this is not a situation where a statute was "designed to deprive parties of their right to continue in their professions for past acts or past expressions of desires and sympathies, many of which had no bearing upon their fitness to continue in their professions."). In this case, there is no prohibition of a future conduct. These cases and their progeny, therefore, are inapposite to the present circumstances. The State's reliance on Myrick is misplaced. {7} . We note that Ursery was a double jeopardy case. Although the Supreme Court warned against lifting a test for punishment from one constitutional provision and applying it to another, the Court applied the "intent-effects" test in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 502 (1997) to both the Double Jeopardy and Ex Post Facto Clauses. See Russell v. Gregoire, 124 F.3d 1079, 1087 n.6 (9th Cir. 1997). Presumably, therefore, the factor noted in Ursery is applicable to the present ex post facto analysis. {8} . Haskell has not met his burden of demonstrating by "the clearest proof" that SORNA is so punitive that it negates the Legislature's civil intent; in fact, neither he nor the State mentioned the so-called "intent-effects" test on appeal. Nevertheless, we make an independent analysis of the Mendoza-Martinez and Ursery factors to assess whether SORNA is so punitive in purpose or effect as to overcome the Legislature's civil intent. {9} . For a good discussion of the effects test as it pertains to ex post facto challenges to sex offender laws, see People v. Malchow, 739 N.E.2d 433 (Ill. 2000), Russell v. Gregoire, 124 F.3d 1079 (9th Cir. 1997), cert. denied, 523 U.S. 1007, 118 S. Ct. 1191, 140 L.Ed.2d 321 (1998), Doe v. Pataki, 120 F.3d 1263 (2nd Cir. 1997), cert. denied, 522 U.S. 1122, 118 S.Ct. 1066, 140 L.Ed.2d 126 (1998); Artway v. Attorney General of State of New Jersey, 81 F.3d 1235 (3rd Cir. 1996), and State v. Noble, 829 P.2d 1217 (Ariz. 1992). {10} . Only classifications involving a suspect or quasi-suspect class, or impacting certain fundamental constitutional rights, are subject to heightened scrutiny. Artway, 81 F.3d at 1267 (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L.Ed. 2d 313 (1985)). Other classifications, like those presented by SORNA, need only be rationally related to a legitimate government goal. Id. (citing Chapman v. United States, 500 U.S. 453, 465, 111 S. Ct. 1919, 114 L.Ed.2d 524 (1991) (applying rational basis test to classification based on nature of offense)). {11} . 34-A M.R.S.A. § 11251 incorporates the notification provisions of the 1995 Act in the SORNA. See 34-A M.R.S.A. § 11251 (Supp. 2000). The notification requirements of the 1995 Act provide, in pertinent part, as follows: § 11141. Risk assessment The department shall establish and apply a risk assessment instrument to each sex offender under its jurisdiction for the purpose of notification to law enforcement agencies and to the public. § 11142. Mandatory notification of conditional release or discharge of sex offenders The department and the Department of Public Safety, State Bureau of Identification are governed by the following notice provisions when a sex offender is conditionally released or discharged. 1. Duties of the department. The department shall give the Department of Public Safety, State Bureau of Identification notice of the following: A. The address where the sex offender will reside; B. The address where the sex offender will work, if applicable; C. The geographic area to which the sex offender's conditional release is limited, if any; and D. The status of the sex offender when released as determined by the risk assessment instrument, the offender's risk assessment score, a copy of the risk assessment instrument and applicable contact standards for the offender. 2. Duties of the Department of Public Safety, State Bureau of Identification. Upon receipt of the information concerning the conditional release or discharge of a sex offender pursuant to subsection 1, the Department of Public Safety, State Bureau of Identification shall forward the information in subsection 1 to all law enforcement agencies that have jurisdiction in those areas where the sex offender may reside or work. § 11143. Public Information. 1. Department. Upon the conditional release or discharge of a sex offender from a state correctional institution, the department shall give notice of the information under section 11142, subsection 1 to members of the public who the department determines appropriate to ensure public safety. 2. Law enforcement agencies. Upon receipt of the information concerning the conditional release or discharge of a sex offender pursuant to section 11142, subsection 2, a law enforcement agency shall notify members of that municipality who the law enforcement agency determines appropriate to ensure public safety. 34-A M.R.S.A. §§ 11141-11143 (Supp. 2000). {12} . Numerous courts have addressed constitutional challenges to sexual offender laws and have generally upheld them, though not always with the same reasoning or with the same synthesis of Supreme Court precedents. Some of those cases include the following: Kansas v. Hendricks, 521 U.S. 346, 370-71, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (holding that Kansas's Sexually Violent Predator Act-which establishes procedures for the civil commitment of persons who, due to a "mental abnormality" or "personality disorder," are likely to engage in "predatory acts of sexual violence"-does not constitute punishment and, therefore, does not violate Ex Post Facto or Double Jeopardy Clauses); Roe v. Office of Adult Probation, 125 F.3d 47, 54-55 (2nd Cir. 1997) (holding that Connecticut probation office policy that notifies community of sex offender parolees does not constitute punishment); Pataki, 120 F.3d at 1265- 66 (2nd Circuit holding that neither the notification nor the registration requirements violate the Ex Post Facto Clause because the laws are not punitive in nature); Artway, 81 F.3d at 1267 (3rd Circuit holding that registration provisions of Megan's Law does not constitute punishment, and, therefore, does not offend the Ex Post Facto, Double Jeopardy, or Bill of Attainder Clauses); E.B. v. Verniero, 119 F.3d 1077, 1105 (3rd Cir. 1997) (holding that the New Jersey's sex offender laws does not constitute punishment for purposes of the Ex Post Facto Clause), cert. denied, 522 U.S. 1109, 118 S. Ct. 1039, 140 L.Ed.2d 105 (1998); Moore v. Avoyelles Corr. Ctr., 253 F.3d 870. 873 (5th Cir. 2001) (holding the Louisiana sex offender neighborhood notification law does not violate the Ex Post Facto Clause because the law is not unconstitutionally punitive; the law, though it has certain punitive aspects, serves important nonpunitive goals); Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999) (upheld Tennessee's sexual offender statute on Double Jeopardy, Ex Post Facto, Bill of Attainder, Due Process, Equal Protection, Eighth Amendment, right to interstate travel, and right to privacy challenges on the ground that it was not punitive), cert. denied, 529 U.S. 1053, 120 S.Ct. 1554, 146 L.Ed.2d 460 (2000); Gregoire, 124 F.3d at 1089, 1092 (9th Circuit upholding Washington's sexual offender statute from ex post facto, right-to-privacy, and due-process attack on the ground that it was regulatory and remedial, not punitive); Femedeer v. Haun, 227 F.3d 1244, 1253-54 (10th Cir. 2000) (upheld Utah's sexual offender statute from Double Jeopardy and Ex Post Facto challenges on ground that it was not punitive); Doe v. Weld, 954 F.Supp. 425, 438 (D. Mass. 1996) (denying a preliminary injunction because it was unlikely that the party seeking relief would succeed in showing that Massachusetts sex offender notification constitutes punishment); People v. Malchow, 739 N.E.2d 433, 440 (Ill. 2000) (upholding Illinois's sex offender neighborhood notification law against ex post facto challenge because the law was determined not to have been punitive in nature); Meinders v. Weber, 604 N.W.2d 248, 255 (S.D. 2000) (upholding sex offender registration as remedial public safety measure, not ex post facto punishment); People v. Pennington, 610 N.W.2d 608 (Mich. App. 2000) (holding that registration and disclosure requirements of the Sex Offenders Registration Act did not increase punishment, so as to violate the constitutional prohibition against ex post facto laws when applied to a defendant sentenced years before the Act became effective; the Act was directed at protecting the public, and had no punitive purpose); People v. Afrika, 648 N.Y.S.2d 235, 241 (N.Y. Sup. Ct. 1996) (stating SORA is remedial in intent and operation; application did not violate Ex Post Facto Clause); Doe v. Poritz, 662 A.2d 367, 422 (N.J. 1995) (holding purpose and implementation of registration and notification statutes were totally remedial and, thus, any deterrent punitive impact did not impose punishment for purpose of constitutional challenges and the Ex Post Facto, Double Jeopardy, Bill of Attainder, and Cruel and Unusual Punishment Clauses); State v. Costello, 643 A.2d 531, 533 (N.H. 1994) (holding, "[a] statute that has both a penal and nonpenal effect is nonetheless nonpenal if that is the 'evident purpose of the legislature;'" the nonpenal, or regulatory, purpose of the Legislature in enacting the sex offender registration law is manifest; any punitive effect is de minimis); Kitze v. Commonwealth, 475 S.E.2d 830, 832 (Va. 1996) (holding that registration requirement was regulatory rather than penal; any potential punishment for failing to register was prospective and did not punish defendant for past criminal activity), cert. denied, 522 U.S. 817, 118 S.Ct. 66, 139 L.Ed.2d 28 (1997); State v. Manning, 532 N.W.2d 244, 248-49 (Minn.App. 1995) (upheld Minnesota's sexual offender statute from Ex Post Facto challenge holding statute was regulatory and not punitive); State v. Ward, 869 P.2d 1062, 1069 (Wash. 1994) (holding Ex Post Facto Clause not violated because applying the sex offender registration statute to prior convictions occurring before its enactment did not constitute punishment); Young v. State, 771 A.2d 525, 532 (Md.App. 2001) (holding the Maryland statutory offender statute is not punitive for due process and Sixth Amendment purposes); Rodriguez v. State, 45 S.W.3d 685, 689 (Tex. App. 2001) (stating that amendment to sex offender registration statute was not unconstitutional, as an ex post facto law, when applied to defendant, who was required under the amendment to register for life due to a conviction for aggravated sexual assault; registration requirement was remedial in nature, it did not impose punishment for constitutional purposes, and it was therefore not susceptible to an Ex Post Facto claim). But cf. State v. Calhoun, 669 So.2d 1359, 1363 (La. 1996) (stating, for the purposes of the Ex Post Facto Clause, "[r]egistration as a sex offender . . . exposes the defendant to the possibility of additional penalties for his criminal conduct;" applying the registration provision to the defendant, therefore, constitutes a violation of the Ex Post Facto Clause of the Louisiana and United States Constitutions); State v. Noble, 829 P.2d 1217, 1224 (Ariz. 1992) (acknowledging that registration requirement has both punitive and regulatory effects; though "decision is close," court, nonetheless, concluded that, on balance, the registration laws are nonpunitive); Rowe v. Burton, 884 F. Supp. 1372, 1380 (D. Alaska 1994) (granting, in part, preliminary injunction to plaintiffs because there was likelihood they would succeed on merits of claim that registration act will violate Ex Post Facto Clause); Roe v. Farwell, 999 F.Supp. 174, 199 (D. Mass. 1998) (upheld Massachusetts's sexual offender statute from Ex Post Facto, Double Jeopardy, Bill of Attainder, Eighth Amendment, and Equal Protection challenges on ground that it was not punitive--except for one of its notification sections, which allowed any adult to request verification of whether a person is a sex offender); Doe v. Otte, 248 F.3d 832, 849 (9th Cir. 2001) (held that, partly because registration portion of the Alaska Sex Offender Act was placed in criminal code, the Legislature intended that the Act be punitive in nature and Ex Post Facto Clause applied, prohibiting retroactive application of Act). {13} . The notification program in Corbin was conducted pursuant to a Portland city ordinance, rather than pursuant to SORNA and its sister provisions. Corbin v. Chitwood, 145 F.Supp.2d 92 (D. Me. 2001). This is, perhaps, due to the fact that, at the time the notification took place in that case, SORNA was not yet in effect, and the sex-offender registration and notification laws then in effect in Maine did not encompass the specific offenses for which Corbin was convicted in California, including "crimes against children/lewd or lascivious," "commitment (90 days) as a mentally disordered sex offender," "oral copulation," and "indecent exposure." See id. at 94. Although the U.S. District Court partly supported its finding that the Ex Post Facto Clause was not implicated in Corbin because the City of Portland had not conducted the notification program pursuant to a State statute or regulation, it also suggested that, even if the notification were conducted pursuant to a State statute or regulation, "there is no ex post facto violation because the notification does not punish [the defendant]." Corbin v. Chitwood, 145 F.Supp.2d 92, 99. Hence, the U.S. District Court sitting in Maine has joined the majority of those jurisdictions that have considered the matter in finding that laws like SORNA do not pose ex post facto problems. {14} . Section 11203 provides, in pertinent part: As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings. . . . . 5. Sex offender. "Sex offender" means a person who is an adult convicted or a juvenile convicted as an adult of a sex offense. 6. Sex offense. "Sex offense" means a conviction for one of the following offenses or for an attempt or solicitation of one of the following offenses if the victim was less than 18 years of age at the time of the criminal conduct: . . . . B. A violation under Title 17-A, section 253, subsection 2, paragraph E, F, G, H, I or J; Title 17-A, section 254; Title 17-A, section 255, subsection 1, paragraph A, E, F, G, I or J; Title 17-A , section 256; Title 17-A, section 258; Title 17-A, section 301, unless the actor is a parent of the victim; Title 17-A, section 302; Title 17-A, section 511, subsection 1, paragraph D; Title 17- A, section 556; Title 17-A, section 852, subsection 1, paragraph B; or Title 17-A, section 855; or . . . . 7. Sexually violent offense. "Sexually violent offense" means: A. A conviction for or an attempt to commit an offense under Title 17-A, section 253, subsection 1; Title 17-A, section 253, subsection 2, paragraph A, B, C or D; or Title 17-A, section 255, subsection 1, paragraph B, C, D or H; or . . . . 8. Sexually violent predator. "Sexually violent predator" means a person is an adult convicted or a juvenile convicted as an adult of a: A. Sexually violent offense; . . . . 34-A M.R.S.A. §11203(5), (6)(B), 7(A) & 8(A) (Supp. 2000) (emphasis added). {15} . Nonetheless, the trial courts are reminded that the SORNA requires the court to make a determination, at the time of the conviction, if a defendant is a sex offender or a sexually violent predator.

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