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State v. Brian Haskell Sr.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 154
Docket:	Oxf-00-503	
Argued:	September 11, 2001	
Decided:	November 5, 2001




	[¶1]  Brian S. Haskell Sr. appeals from the application of the Sex
Offender Registration and Notification Act of 1999 ("SORNA"){1} in his case
after a judgment of conviction was entered in the Superior Court (Oxford
County, Pierson, J.) on a jury verdict finding him guilty of unlawful sexual
contact in violation of 17-A M.R.S.A. § 255(1)(C) (Supp. 2000) (Class C).{2} 
Haskell contends that: (1) SORNA, as it applies to him, is an ex post facto
law that is prohibited by the Constitutions of the State of Maine and of the
United States and (2) the Sentencing Court's alleged specification of him as
a "sex offender," rather than as a "sexually violent predator," makes void its
determination that he is subject to SORNA provisions.  We disagree and
	[¶2] On September 13, 2000, the jury found that Haskell was guilty
of the charge of unlawful sexual contact with a child pursuant to 17-A
M.R.S.A. § 255(1)(C).  Accordingly, on September 22, 2000, the trial court
sentenced Haskell to an imprisonment term of three years, with all but
fourteen months suspended.  The court also imposed a probationary term of
four years.  In addition, pursuant to 34-A M.R.S.A. §§ 11221 et seq., the
court notified and ordered Haskell to satisfy, upon his release, the
registration provisions of SORNA.  The sole basis of Haskell's appeal stems
from the court's application of SORNA provisions to his case.{3}	
A.  Standard of Review

	[¶3] We review a ruling on the validity of a statute, a matter of law,
de novo.  Rideout v. Riendeau, 2000 ME 198, ¶ 14, 761 A.2d 291, 297
(citing Estate of Jacobs, 1998 ME 233, ¶ 4, 719 A.2d 523, 524).  Further,
our review is guided by the familiar principle that "[a] statute is presumed to
be constitutional and the person challenging the constitutionality has the
burden of establishing its infirmity." Id. (quoting Kenny v. Dep't of Human
Servs., 1999 ME 158, ¶ 7, 740 A.2d 560, 563).  
	[¶4] We must assume that the Legislature acted in accord with
constitutional requirements if the statute can reasonably be read in such a
way, notwithstanding other possible unconstitutional interpretations of the
same statute.  Id. ¶ 14, 761 A.2d at 297-98 (citing Portland Pipe Line Corp.
v. Envtl. Improvement Comm'n, 307 A.2d 1, 15-16 (Me. 1973)).  "Our role
in reviewing the constitutionality of a statute must necessarily be limited by
the facts in the case before us."  Id. ¶ 15, 761 A.2d at 298.   "We may not
reach beyond those facts to decide the constitutionality of matters not yet
presented."  Id. (citations omitted).  We, therefore, address the
constitutionality of the statute before us in the context of the facts found by
the trial court.

B.  SORNA is Not Penal in Nature--Ex Post Facto Doctrine does not apply.

	1.  Introduction.

	[¶5] The Maine sex offender registration and notification laws
comprise three Acts.{4}  The original 1991 Act, entitled the Sex Offender
Registration Act, limited the class of registrants to only those persons who
had a gross sexual assault conviction that involved a victim who was under
16 years of age at the time of the commission of the crime.  34-A M.R.S.A.
§ 11002(2) (Supp. 2000); P.L. 1991, ch. 809, § 1 (effective June 30, 1992);
see also 17-A M.R.S.A. § 253 (1983) (Gross sexual misconduct).  In 1995,
the Legislature enacted provisions expanding the registration requirements
to include "individual[s] found not criminally responsible for committing
gross sexual assault by reason of mental disease or defect if the victim had
not, in fact, attained 16 years of age at the time of the crime." 34-A
M.R.S.A. § 11103(5) (Supp. 2000); P.L. 1995, ch.  680, § 13 (effective July
4, 1996).  Finally, in 1999, the Legislature enacted SORNA to further expand
the registration requirements to encompass individuals who have been
convicted of a number of other offenses, including unlawful sexual contact
under 17-A M.R.S.A. § 255(1)(C), the crime for which Haskell was
convicted.  See 34-A M.R.S.A. § 11203(7)(A) (Supp. 2000); P.L. 1999, ch.
437, § 2 (effective September 18, 1999).  
	[¶6] Because he committed the crime on August 8, 1999, and
SORNA did not become effective until September 18, 1999, Haskell argues
that applying SORNA in his case constitutes an ex post facto application of a
penal statute.   Indeed, the enactment by our state Legislature of any ex post
facto law is constitutionally prohibited.{5}   A criminal statute will violate these
constitutional prohibitions of ex post facto legislation if:  "(i) the new statute
punishes as a crime an act that was innocent when done, or (ii) makes more
burdensome the punishment for a crime after its commission, or (iii) if it
deprives one charged with a crime of a defense available according to law at
the time the act was committed."  State v. Chapman, 685 A.2d 423, 424
(Me. 1996) (citing State v. Joubert, 603 A.2d 861, 869 (Me. 1992)).	 
	[¶7] If SORNA measures are deemed civil rather than criminal in
nature, however, they do not implicate the Ex Post Facto Clause.  See Baker
v. Town of Woolwich, 517 A.2d 64, 69 (Me. 1987).  The threshold question
for us to consider, therefore, is whether SORNA is civil or penal in nature.

	2.  Civil-Criminal Analysis.

	[¶8] In Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139
L.Ed.2d 450 (1997), the Supreme Court promulgated the so-called "intent-
effects" test for distinguishing between civil and criminal penalties, stating: 
Whether a particular punishment is criminal or civil is, at
least initially, a matter of statutory construction.  A court
must first ask whether the legislature, in establishing the
penalizing mechanism, indicated either expressly or
impliedly a preference for one label or the other.  Even in
those cases where the legislature has indicated an intention
to establish a civil penalty, we have inquired further whether
the statutory scheme was so punitive either in purpose or
effect as to transform what was clearly intended as a civil
remedy into a criminal penalty. 

	In making this latter determination, the factors listed in 
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83
S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963), provide useful
guideposts, including:  (1) "[w]hether the sanction involves
an affirmative disability or restraint";  (2) "whether it has
historically been regarded as a punishment";  (3) "whether it
comes into play only on a finding of scienter";  (4) "whether
its operation will promote the traditional aims of
punishment-retribution and deterrence";  (5) "whether the
behavior to which it applies is already a crime";  (6)
"whether an alternative purpose to which it may rationally be
connected is assignable for it";  and (7) "whether it appears
excessive in relation to the alternative purpose assigned."  It
is important to note, however, that "these factors must be
considered in relation to the statute on its face," id. at 169,
83 S.Ct. at 568, and only the clearest proof will suffice to
override legislative intent and transform what has been
denominated a civil remedy into a criminal penalty. 
Hudson v. United States, 522 U.S. 93, 99-100, 118 S.Ct. 488, 139 L.Ed.2d
450 (1997) (additional citations and quotation marks omitted); see also
Kansas v. Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 138 L.Ed.2d 501,
(1997) (applying similar principles to determine whether sex offender
commitment statute violated Ex Post Facto Clause).{6}   
	[¶9]  The Mendoza-Martinez list of considerations, however, is
neither exhaustive nor dispositive.  See United States v. Ward, 448 U.S. 242,
249, 100 S. Ct. 2636, 65 L.Ed.2d 742 (1980).  In fact, the Supreme Court
has intimated, in other cases, that the most significant question under the
effects stage of the analysis is whether the law, "while perhaps having
certain punitive aspects, serve[s] important nonpunitive goals." United
States v. Ursery, 518 U.S. 267, 290, 116 S. Ct. 2135, 135 L.Ed. 2d 549
(1996).{7} See also Russell v. Gregoire, 124 F.3d 1079, 1091 (9th Cir. 1997)
(stating, Mendoza-Martinez's list of considerations is helpful but is not
exhaustive or dispositive), cert. denied, 523 U.S. 1007, 118 S. Ct. 1191, 140
L.Ed.2d 321 (1998); Moore v. Avoyelles Corr. Ctr., 253 F.3d 870, 873 (5th
Cir. 2001) (stating that "'[t]he most significant question under [the effects]
stage of the ['intent-effects'] analysis' is whether the law 'while perhaps
having certain punitive aspects, serve[s] important nonpunitive goals.'").  
 	[¶10] Thus, our first task is to discern whether the intent of the
Legislature in enacting the sex-offender notification program was to create a 
civil or criminal penalty.  If we determine that the legislature intended to
establish a civil penalty, we must then inquire whether there exists the
"clearest proof" that the measure is so punitive in purpose or effect as to
override the Legislature's intent.
		a.  Legislative Intent.

	[¶11] An analysis of the legislative history of SORNA and its sister
Acts reveals that the Maine legislature intended SORNA to be a civil remedy. 
First, the legislative intent to establish a nonpunitive measure is
ascertainable from the simple fact that the Legislature placed the statute in
the civil code as opposed to the criminal code.  See Hendricks, 521 U.S.
346, 361, 117 S. Ct. 2072 (stating that the Kansas Legislature's objective to
create a civil proceeding is evidenced by its placement of the Sexually
Violent Predator Act within the Kansas probate code, instead of the criminal
code).    Second, the civil nature of the Acts is evident in the Legislature's
description of the 1991 Act as "An Act to Ensure Continuing Knowledge of
the Identity and Whereabouts of Convicted Sex Offenders," P.L. 1991, ch.
809, and its unambiguous expression in the 1995 Act that the legislation's
purpose was "to protect the public safety by enhancing access to information
concerning sex offenders." 34-A M.R.S.A. § 11101 (Supp. 2000).  The
description and purpose suggest that the Acts were enacted to protect the
public, not to punish the sex offender.
	[¶12] Although SORNA carries none of these legislative expressions,
the expressions of the prior Acts are attributable to it because SORNA is
merely an expansion of those Acts, primarily enacted to conform the
existing Maine Acts to federal law on the same issue.  See L.D. 1721,
Summary (119th Legis. 1999).  Specifically, the Legislature, in enacting
SORNA, stated:
	This bill [creating SORNA] provides for the registration
of sex offenders in conformance with federal law.  The bill
does the following.
	1. It expands the scope of the definition of "sex
offender" for the purposes of registration.
	2.  It adds "sexually violent predator" as a new category.
	3.  It increases the type of identifying information for sex
offenders and sexually violent predators that must be kept by
the State Bureau of Identification and directs the bureau to
forward registration information to the Federal Bureau of
Investigation for inclusion in the national sex offender
	. . . .
Id.   Nothing in any of the Acts suggests that the Legislature sought to create
anything other than a civil registration and notification procedure designed
to protect the public from harm.  The legislative intent in enacting SORNA,
therefore, is remedial, not criminal.
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