Doe v. Fowle

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

KENNEBEC, ss. DOCKET NO. CV-06-113

5 ~ - 5< E r ~ - / ~ ~ + a ~ i .

JOHN DOE,

Plaintiff

DECISION ON MOTIONS

TO DISMISS

EVERT FOWLE, COL. CRAIG

POULIN, and EVERETT B.

FLANNERY, JR., in their

official capacities,

D O N A L D L, GARBRECHT

LAW LIBRAR"

Defendants

JAN 1 6 2001

This matter comes before the court on motions to dismiss filed collectively by

defendants Fowle and Poulin and filed separately by defendant Flannery. Earlier in

this litigation, the plaintiff requested a temporary restraining order to prevent the

defendants from enforcing the Sex Offender Registration and Notification Act of 1999

("SORNA") (34-A M.R.S.A. §§ 11201-11256). That request was denied because the

plaintiff failed to demonstrate a likelihood of success on the merits. Despite a multi-

faceted attack, the plaintiff still fails to convince the court on the merits. The court has

considered as true all of the facts pled by the plaintiff. However, the defendants have

convinced the court that they are entitled to dismissal of the plaintiff's claims as a

matter of law.

Background

With one exception that does not affect these motions,' the background set forth

in the court's decision on the plaintiff's application for temporary restraining order is

incorporated herein.

The original discussion of background noted that plaintiff Doe had not yet registered under SORNA as

of the date of that order, May 4,2006. The court was informed by correspondence from counsel for the

Discussion

In its May 4, 2006 order, this court stated that none of the leading cases appear to

support the plaintiff's arguments, and that continues to be the case. A leading case in

Maine is State v. Haskell, 2001 ME 154; 784 A.2d 4, in which the Supreme Judicial Court

noted, "Sex offender registration and notification laws have been the subject of much

litigation and have been overwhelmingly sustained as constitutional by the majority of

courts, n.12 includng the United States District Court for the District of Maine, see

Corbin v. Chitwood, 145 F.Supp.2d 92, 99 (D.Me. 2001)." The footnote referenced in the

quote sets forth a very extensive list of some of the cases, noting the variety of

constitutional challenges which have failed in each case. Faced with this mountain of

precedent against him, the plaintiff attempts to cast his arguments as uniquely different

or that the courts are simply wrong.

Discussion

As the moving parties, the defendants support the motions by addressing each of

the counts in the plaintiff's complaint. The arguments begin by noting that SORNA has

the presumption of constitutionality, having been duly enacted by the Maine

Legislature. In the face of this presumption, the plaintiff has asserted several

constitutional arguments.

First, the plaintiff argues that the registration requirement, at least as applied to

him, violates constitutional requirements of Due Process in that he was not aware of h s

ultimate registration requirement at the time he entered h s guilty plea. Plaintiff states

that he is not challenging the statute on an ex-post facto basis, yet that is the usual vehicle

for addressing this type of problem. Our Supreme Judicial Court has already indicated

State defendants that prior to oral argument on September 7,2006, Doe had registered and was placed in

the Registry. Since Doe's name could always be removed from the Registry if successful in this litigation,

the fact of registration does not render the case moot.

that SORNA does not pose ex-post facto problems. State v. Haskell, 2001 ME 154, 784

A.2d 4. The Due Process argument falters because of the mistaken belief that the

requirement of regstration is part of a criminal punishment. On the contrary, it is clear

from Haskell that there are legitimate non-punitive goals of SORNA which are collateral

consequences of the plaintiff's conviction as a sex offender, and do not trigger Due

Process issues.

Plaintiff's second constitutional argument is that the court should hold the

statute void for vagueness. However, the court finds nothing particularly vague or

complex about the statutory requirements. It is clear that the duty to register is initiated

by a conviction for a sex offense, and the type of registration - 10 year versus lifetime -

simply depends upon the specific statutory identification of the offense. The court finds

no vagueness.

Next, plaintiff argues h s right to a civil jury trial for determination of certain

facts necessary to determine the category of the offense and to assess the plaintiff's risk

of reoffending. Although the plaintiff correctly cites the Maine Constitution, Art. I, 5 20,

concerning the right to civil jury trials, the section is irrelevant because there is nothing

for a jury to find under SORNA. The statute requires the court to make a determination

of the classification of the offender - 10 years versus lifetime -but that determination is

made solely on the basis of the section of the criminal statutes under which the offender

was convicted. Determining the applicable statute is a legal determination particularly

within the province of the court and is not an issue for the jury. Further, the

Department of Corrections is required to conduct a risk assessment (34-A M.R.S.A. 5

11253), but that assessment is for purposes other than determining whether a sex

offender is required to register. As stated before, the sole trigger for applying the

registration requirements is conviction of a sexual offense and the risk of recidivism is

irrelevant to this issue. Finally, to the extent that the sex offender has a right to a jury

trial, it is the criminal trial which was held or waived prior to his conviction for the

specific offense. Since the fact of conviction triggers the responsibility to register, no

further trial is necessary.

Plaintiff's next constitutional argument is that the forced registration scheme

with its two class registration requirements violates the plaintiff's right to constitutional

Equal Protection since it is done without risk assessment. The difference between the

classes depends on the seriousness of the crime. Those convicted of less serious crime

have to register for 10 years; more serious, for the rest of their lives. There is a rational

relationship between this differentiation and the legislative goal of protecting

vulnerable individuals from convicted sex offenders. The Legrslature could have

concluded that an individual who commits a more serious sexual offense poses a

greater risk of further offending, and therefore should be required to register for the

longer period of time so that the public is more aware of the offender's presence. This is

a rational and legitimate legislative conclusion sufficient to overcome any Equal

Protection arguments.

Another constitutional argument by the plaintiff is that SORNA violates

substantive due process in that-it violates one of the plaintiff's protected liberty

interests, the right to privacy. Maine Constitution, Art. I, 5 1. Assuming that Article I,

§1does include such a privacy right, the question is whether that right constitutionally

prevents public safety authorities from disseminating information concerning the

whereabouts of convicted sexual offenders. The fact of the conviction is already within

the well-recognized realm of public information. Adding identifying information to

make the public safety purpose of the legislation effective does not breach any

fundamental privacy right either, or if it does, it is necessary to protect public welfare.

A registration system which is limited to the offender's name and the bare fact of

conviction of a sex offense would seriously hamper its effectiveness.

With regard to the plaintiff's argument that enforcement of the registration

statute violates 42 U.S.C. § 1983 as a violation of the plaintiff's constitutional rights, the

court concludes simply that no such constitutional violation has been proved.

Furthermore, as the section 1983 argument applies to defendant Flannery, the Sheriff

cannot be held liable as a county law enforcement official for enforcing a State law.

Finally, a few words about the plaintiffs argument that his claims are unique

and matters of first impression. In support of this claim, the plaintiff points to the

"coercive" effects he believes SORNA has. These effects include the payment of an

annual fee and the disclosure of new information concerning address, employment and

other personal identifying facts which go beyond the simple fact of conviction. While

these are the statutory requirements, the court finds no constitutional violation here

either. Payment of the fee is simply to help offset the public expense of the registration

program, and virtually every Sex Offender Registry statute which has been upheld

requires filing of similar information. As noted previously, the whole purpose of the

program is to give convicted sex offenders a higher public recognition in the interest of

improved public safety.

For the reasons stated above, the entry will be:

The defendants' motions to dismiss are GRANTED; the plaintiff's

complaint is DISMISSED as a matter of law, with prejudice, for failure to

state a claim upon whch relief may be granted.

Dated: November /@ ,2006

S. Kirk Studstru~ '

Justice, superio; Court

JOHN DOE - PLLINTIFF SUPERIOR COURT

KENNEBEC, SS .

Attorney for: JOHN DOE Docket No AUGSC-CV-2006-00113

JAMES E MITCHELL - RETAINED 04/26/20D6

MITCHELL & DAVIS

86 WINTHROP STREET DOCKET RECORD

AUGUSTA ME 04330

vs

EVERT FOWLE - DEFENDANT

Attorney for: EVERT FOWLE

PAUL STERN - RETAINED

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

CRAIG POULIN - DEFENDANT

Attorney for: CRAIG POULIN

PAUL STERN - RETAINED

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

EVERETT FLANNERY - DEFENDANT

Attorney for: EVERETT FLANNERY

PETER MARCHES1 - RETAINED

WHEELER & AREY PA

27 TEMPLE ST

PO BOX 376

WATERVILLE ME 04903-0376

Attorney for: EVERETT FLANNERY

CASSANDRA S SHAFFER - RETAINED

WHEELER & AREY PA

27 TEMPLE ST

PO BOX 376

WATERVILLE ME 04903-0376

Filing Document: COMPLAINT Minor Case Type: DECLARATORY JUDGMENT

Filing Date: 04/28/2006

Docket Events:

04/28/2006 FILING DOCUMENT - COMPLAINT FILED ON 04/28/2006

04/28/2006 Party(s): JOHN DOE

ATTORNEY - RETAINED ENTERED ON 04/26/2006

Plaintiff's Attorney: JAMES E MITCHELL

04/28/2006 CERTIFY/NOTIFICATION - CASE FILE NOTICE SENT ON 04/28/2006

Plaintiff's Attorney: JAMES E MITCHELL

MAILED TO ATTY. OF RECORD

Page 1 of 5 Printed on: 11/16/2006

STATE OF MAINE SUPERIOR COURT

KENNEBEC, ss cv -06-113 i /

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JOHN DOE et al.

ORDER ON CROSS-

V. MOTIONS FOR

SUMMARY JUDGMENT

COL. ROBERT WILLIAMS, et al. 1

In his capacity as

Chief of Maine State Police

Before the court is a motion for summary judgment brought on behalf of plaintiffs John

Doe I, III, IV, V, VI, VII, VIII, X, XIII, XVI, XVIII, XXIV, and XLIII,represented by the office

of Attorney Jim Mitchell, and joined by John Doe XIV, represented by Attorney Walt McKee,

and John Doe XIX and XXIII, represented by Attorney Ron Bourget. The plaintiffs' motion

challenges the constitutionality of34-A M.R.S. §11201-11256 (2010), Maine's Sex Offender

Registration and Notification Act of 1999 (SORNA). The state defendants, represented by

Deputy Attorney General Paul Stern, Assistant Attorney General Laura Yustak-Smith, and

Assistant Attorney General Ron Lupton object to the motion and have cross-moved for summary

judgment upholding the constitutionality of the statute, as amended. In addition to the parties'

motions for summary judgment, the court also considers at this time the plaintiffs' motion for

attorneys' fees, the state defendants' objection, and the plaintiffs' response.

CASE HISTORY AND BACKGROUND

The case was brought originally in 2006, and it has a complex history, both procedurally

and substantively. The initial complaint was filed on April 28, 2006 on behalf of John Doe I.

His complaint was dismissed by Justice Kirk Studstrup on November 16, 2006, for failure to

state a claim for which relief could be granted. On October 12, 2007, the Maine Supreme Court

vacated the dismissal in Doe v. District Attorney, 2007 ME 139, 932 A.2d 552, and remanded the

case to the Superior Court of Kennebec County for "further factual development" Jd at ,-r 1, 932

A.2d at 554. The case was assigned to Justice Nancy Mills on December 29, 2007, and

reassigned to the undersigned Justice on April 1, 2008. On July 14, 200R, a temporary

1

Colonel Patrick Fleming was the original named defendant, but Colonel Robert Williams has succeeded him in the

post of Chief of the State Police. As the party is a defendant in his official, rather than individual, capacity, the court

has made the substitution al1er receiving the new information from the state defendants.

restraining order was issued on behalf of five other John Does, who were as of that date among

nineteen John Does who had filed complaints in the Ketmebec County Superior Court

challenging the constitutionality ofSORNA. Eventually, cases consolidated in this matter have

involved as many as forty-seven John Does. In addition to the Jolm Doe cases, there remain

pending approximately four other cases, both civil and criminal, which have been sent for

decision along with the John Does to the undersigned Justice at the direction of the Chief Justice

ofthe Superior Court.

In 2008, before the issuance of the temporary restraining orders staying prosecutions of

the plaintiffs for failure to register, the case was put on hold due to legislative activity in the

spring of that year. LD 446, An Act to Improve the Use ofinformation Regarding Sex

Offenders to Better Ensure Public Safety and Awareness, was passed by both houses ofthe

Maine Legislature. It would have mooted out many, if not all, of the claims pending at that time.

It would have relieved between 500 and 600 persons convicted of sex offenses between 1982 and

1992 from having to register under SORNA. When the court and parties became aware ofthe

pending legislation it was agreed by all, in deference to that process, that all pending cases would

be informally stayed. However, any hope that the legislation would relieve the court of the

obligation to pass on the constitutionality of Maine's SORNA was dashed when Governor

Baldacci announced on April 30, 2008, that he would not sign the bill.

The parties commenced discovery, and more plaintiffs joined. The parties and the court

soon became aware of an appeal by the State from a decision of the Lewiston District Court

(Stanfill, J.), which found Maine's SORNA statute facially unconstitutional as violative of a

criminal defendant's right to be free from ex post facto laws. The Court then became aware of

Justice Fritszche' s decision in State v. A.L., 2008 Me. Super LEXIS 164, along with decisions

from other jurisdictions based upon state constitutions, including Doe v. State ofAlaska, 189

P.3d 999 (Alas. 2008). In light of these decisions, and for other considerations, this Court

provided limited temporary relief to certain John Does, allowing them to remain off of the

registry during the pendency of the legal action. Then, in State v. Letalien, 2009 ME 130, 985

A.2d 4, the Maine Supreme Court agreed that certain portions of Maine's SO RNA violated the

prohibition against ex post facto laws. The Lmv Court stayed issuance of its mandate for ninety

days to give the Maine Legislature an opportunity to address the constitutional violations found

in Letalien. The Legislature responded by enacting P.L. 2009, Chapter 570 (I 24th Leg., LD

2

1822) which was signed into law by Governor Baldacci on March 30, 20 I 0. This legislative

response to Letalien is a primary focus of the motions before the court.

After the bill became law, the court conferred with all parties to discuss the course of

future proceedings. Eventually, twenty-four of the forty-seven plaintiffs dismissed their

complaints? This court further decided that certain of the pending cases should proceed to

decision through dispositive cross-motions. A briefing schedule was issued, and the so-called

"Mitchell Does" were joined in their arguments by the three other John Does represented by

Attorneys Walter McKee and Ron Bourget. Other plaintiffs elected to proceed separately, some

of them having joined much later than the plaintiffs at issue here. 3

With respect to all the cases currently handled by the undersigned Justice, including the

ones that are not the subject of this order, nearly all 4 are ineligible to come off the SORNA

registry in the wake of Letalien and the enactment of Chapter 570, with the exception of nine of

the Mitchell Does (I, IV, VI, VII, VIII, XIII, XVI, XVIII, XXIV) who press on with their

constitutional claims here, despite qualifYing for statutory or automatic removal from the

registry.

The most recent complaint addressing multiple plaintiffs was the Ninth Amended

Complaint, filed by the Mitchell Law Firm on June 29, 2009. 5 The court specifically excused the

filing of a tenth amended complaint on behalf of the Mitchell plaintiffs, allowing plaintiffs to

argue with respect to the amendments without amending pleadings.

On October 30, 2009, this court dismissed the plaintiffs' claims for damages brought

pursuant to Section 1983 and the Maine Civil Rights Act against all state defendants, finding that

the counts had failed to state a claim. By order dated October 14, 2010, the court granted an

2

John Does ll, IX, XI, XII, XV, XX, XXI, XXII, XXV, XXVI, XXVII, XXVIII, XXIX, XXX, XXXI, XXXII,

XXXIV, XXXV, XXXVI, XXXVIII, XXXIX, XL, XLI, and XLII have been dismissed from this action. John Doe

XI was previously knows as John Doe, Jr. and originated in York County. John Doe XU was previously known as

Richard Rowe I. See Order for Consolidation dated July 22, 2008. John Doe XV was previously known as Richard

Rowe If. There remains another "Richard Rowe" case which is actually a criminal matter transfen·ed to Kennebec

County from York County on Sept. I 0, 2010.

3

Among the plaintiffs who did not join in this motion for summary judgment, one is a criminal defendant who has

filed a motion to dismiss, one is a Rule SO(C) appeal, and one case, that of John Doe XXXVII, is factually

distinguishable from the John Does who are the subject of this order.

4

It appears that John Doe V will be eligible to petition for termination of his registration requirements in the near

future, under the current version of 34-A M.R.S. § 11202-A.

5

John Doe XLIII was considered to have joined in the Ninth Amended Complaint. John Doe XLIV, represented by

Samuel Cohen, filed a separate complaint dated on or about October 1, 20 l 0. John Doe XLIII is pmiicipating the

current motion for summary judgment; John Doe XLIV does not appear to have joined in the motion.

3

agreed-upon motion to sever, removing all county and municipal defendants, as well as plaintiff

John Doe XXXVII, from this case. The primary purpose of the severance was to allow this

court, with the agreement of the parties, to decide the claims advanced by Mitchell Does against

the state defendants-including ex post facto arguments that remain unresolved for a number of

plaintiffs in the wake of the Letalien decision and the corresponding legislative response-in

order that the Maine Supreme Court could ultimately address the core constitutional issues

generated. Depending on the Law Court's review of this order, it was agreed, the plaintiffs'

claims against the other defendants could be narrowed or eliminated.

Of the plaintiffs who have joined in this motion for summary judgment, six-John Doe I,

IV, VI, VII, VIII, and XVI-were once on the registry and successfully petitioned for removal

pursuant to the statutory amendments. Three, John Doe XIII, XVIII, and XLIII, were never on

the registry, having been granted a stay from any litigation to enforce the registration

requirements pending the statutory amendments. One, John Doe XXIV, filed his initial

registration papers, but was protected by a temporary restraining order from having his

information fully processed and displayed on the Internet and other notification sites, and has

since successfully petitioned to terminate his registration requirements. Thus, nine of the

plaintiffs who have joined in this motion (I, IV, VI, VII, VIII, XIII, XVI, XVIII, XXIV) qualify

for statutory or automatic removal from the registry. 6 Six of the plaintiffs who have joined this

motion for summary judgment thus remain on the registry: John Doe III, V, X, XIV, XIX and

XXIII. 7

The counts remaining pending before the court from the Ninth Amended Complaint are

as follows:

IV: Unconstitutionality of SORl-.JA under the Constitution of the United States;

V: Unconstitutionality ofSORNA under the Constitution of Maine;

VIII: Improper use of guilty pleas;

IX: Denial of trial by jury;

X: Violation of the Maine Civil Rights Act ("MCRA"); and

XI: Violation of 42 U.S.C. §1983.

6

Although John Doe XLIII is not cuJTently on the registry due to this court's granting a stay from any registration

enforcement litigation, should the stay be lifted, he would be ineligible to petition for termination of his registration

requirements because he does not meet the provisions of the current 34-A M.R.S. § 11202-A(l)(C).

7

The remaining John Does who did not join this motion for summary judgment are: XXXIII, represented by

Attorney Francis Griffin, whose case was severed by order dated October 14, 201 0; and John Doe XLIV,

represented by Attorney Samuel Cohen.

4

The new challenges generated, subsequent to the Ninth Amended Complaint, by the

enactment of Chapter 570 and the addition of John Doe XLIII include a request to add further

facts for the court's analysis, as well as a challenge to 34-A M.R.S. §11221(1)(0) on the grounds

that it is void for vagueness and for numerous violations of rights guaranteed by the Maine and

federal Constitutions, and an argument that Chapter 570 is unconstitutional for failing to remedy

the punishment declared unconstitutionally ex post facto in State v. Letalien, 2009 ME 130, 985

A.2d 4, as well as the application of the plaintiffs' remaining counts to Chapter 570. The state

defendants have responded sequentially to the plaintiffs' arguments in their cross-motion for

summary judgment.

The court will address the issues according to the plaintiffs' organization, which

combines the counts remaining from the Ninth Amended Complaint and the new arguments

related to Chapter 570, and includes the state defendants' argument that the plaintiffs who have

been removed from the registry lack standing. That order is as follows, in addition to the ex post

facto argument after the Law Court's ruling in Letalien: (1) Justiciability (including the standing

issue); (2) Constitutionality of34-A M.R.S. §11221(1)(0); (3) Equal protection; (4) Void for

vagueness; (5) Procedural due process; (6) Substantive due process; (7) Cruel and unusual

punishment; (8) Maine's Declaration of Rights, Article I, section 1 of the Maine Constitution; (9)

Improper use of guilty plea; (I 0) Right to jury trial; and (11) Violation of Maine's Civil Rights

Act. 8

STANDARD OF REVIEW

Summary judgment is appropriate when the court's review of the parties' statements of

material fact and cited record evidence indicates there are no genuine issues of disputed material

fact, and that the moving party is entitled to judgment as a matter of law. Dyer v. Dep 't. of

Transportation, 2008 ME 106,, 14, 951 A.2d 821, 825. A fact is material if it can affect the

outcome of the case. Id An issue of fact is genuine if "there is sufficient evidence to require a

fact- finder to choose between competing versions of the truth at trial." !nkel v. Livingston, 2005

ME 42,, 4, 869 A.2d 745, 747.

"Although no longer an extreme remedy, summary judgment is 'not a substitute for

trial."' Cookson v. Brevver School Dep 'I, 2009 ME 57, , 12, 974 A.2d 276, 280 (quoting Arrow

8

It is unclear to what extent the plaintiffs continue to advance their parallel argument under 42 U.S. C. § 1983.

5

Fastener Co. v. Wrabacon, Inc., 2007 ME 34, ~ 18,917 A.2d 123, 127). "Thus, 'even when one

party's version of the facts appears more credible and persuasive to the court, a summary

judgment is inappropriate if a genuine factual dispute exists that is material to the outcome,' in

which case 'the dispute must be resolved through fact-finding,' regardless of the nonmoving

party's likelihood of success." !d. (quoting Arrow Fastener Co., 2007 ME 34, ~ 17, 917 A.2d at

126-27). The nonmoving party may not rely on "conclusory allegations, improbable inferences,

and unsupported speculation" to oppose summary judgment. Dyer, 2008 ME 106, ~ 14, 951

A.2d at 825 (quoting Vives v. Fajardo, 472 F.3d 19, 21 (1st Cir. 2007)). "A court may properly

enter a summary judgment in a case when the parties are not in dispute over the facts, but differ

only as to the legal conclusions to be drawn from those facts." Tondreau v. Sherwin-Williams

Co., 638 A.2d 728, 730 (Me. 1994) (citing Chadwick-BaRoss, Inc. v. T Buck Constr., Inc., 627

A.2d 532, 534 (Me. 1993)).

FINDINGS AND CONCLUSIONS

As a threshold issue, the plaintiffs seek to add further facts to the record for the court to

consider in evaluating the motions for summary judgment. Prior to the Law Court's decision in

State v. Letalien, 2009 ME 130, 985 A.2d 4, the parties engaged in considerable discovery. After

Letalien, this court halted discovery due to the Law Court's holding that "the determination of

the constitutionality of the retroactive application of SO RNA of 1999 depends on a facial

examination of the statute, and not on an as-applied analysis as we previously suggested in Doe

v. District Attorney, 2007 ME 139, 932 A.2d 552." Letalien, 2009 ME 130, ~ 1, 985 A.2d 4, 7.

The plaintiffs now seek to introduce evidence based upon the previously-conducted discovery for

the court to consider in evaluating their challenges to SORL-JA based upon grounds other than an

allegation that it is in violation of the ex post facto clause. In response, the state defendants cite

Letalien, and point out that the plaintiffs' decision to plead in pseudonym, to which the state

defendants objected, results in the state defendants' inability to adequately challenge the

plaintiffs' stated facts.

The court recognizes the state defendants' argument that the plaintiffs may gain an unfair

advantage in a factual inquiry by pleading in pseudonym. Both parties, however, have submitted

extensive statements ofundisputcd facts, and many ofthc John Does have been deposed. Ifthe

court finds that the facts to which the parties explicitly agree support an as-applied challenge, the

court will consider those agreed-upon facts. Likewise, those counts to which the plaintiffs'

6

challenge is facial can proceed based upon minimal or no fact-finding. The court will consider

briefly which of the plaintiffs' challenges are to be evaluated facially and which proceed "as

applied," thus requiring the comi to determine if the parties explicitly agree on the facts

underlying the claim. Any claims which are analyzed "as applied," and as to which the parties'

facts do not agree closely enough to allow the court to consider them are not appropriate for

summary judgment.

1. Ex Post Facto

"The prohibition on ex post fact laws in the Maine Constitution, Me. Canst. art. I, jJ II, is

coextensive with the corresponding prohibition in the United States Constitution, US. Canst. art.

I, jJ IO, cl. 1." State v. Letalien, 2009 ME 130, ~ 63, 985 A.2d at 26. "[T]he determination of the

constitutionality of the retroactive application of SORNA of 1999 depends on a facial

examination of the statute, and not on an as-applied analysis as we previously suggested in Doe

v. District Attorney, 2007 ME 139, 932 A.2d 552." Id at~ 1, 985 A.2d at 7; see also id. at~ 63,

985 A.2d at 26 ("For ex post facto purposes, SORNA of 1999 is properly evaluated on its face,

and not in relation to how it has been applied against any individuals. Our suggestion to the

contrary in Doe v. District Attorney, 2007 ME 139, 932 A.2d 552, is overruled.").

Because the court's analysis is based upon a facial reading of the statute alone, the court

need not consider the parties' factual allegations.

2. Justiciability:

One who seeks to initiate or continue proceedings in federal court must

demonstrate, among other requirements, both standing to obtain the relief

requested, see Lujan v. Defenders ofWildlife, 504 U.S. 555, 560-561, 112 S. Ct.

2130, 119 L. Ed. 2d 351 (1992), and, in addition, an "ongoing interest in the

dispute" on the part of the opposing party that is sufficient to establish "concrete

adverseness." Camreta v. Greene, 563 U.S._,_, 179 L. Ed. 2d 1118, 1125

(20 11) (internal quotation marks omitted).

Bond v. United States,_ U.S. _ , _ , 131 S. Ct. 2355, 2361 (20 11 ). Though the plaintiffs

plead their case before the Maine courts rather than the federal courts, standing and a case and

controversy are requirements of this court as well. See, e.g., Collins v. State, 2000 ME 85, ~~ 5-

6, 750 A.2d 1257, 1260 ("A party must assert a personal stake in the outcome ofthe litigation

and present a real and substantial controversy touching on the legal relations of parties with

7

adverse legal interests .... [A] party must show they suffered an injury that is fairly traceable to

the challenged action and that is likely to be redressed by the judicial relief sought. ... Further,

the injury must be particularized.") (quotations and citations omitted). In order to determine the

plaintiff Does' "ongoing interest in the dispute," the court will need to consider facts to evaluate

whether each individual plaintiff has alleged a concrete injury, caused by SORNA of 1999 and

redressable by invalidation of that statute. See Bond, 131 S. Ct. at 23 61. The court will examine

the parties' statements of material fact to ensure that both parties agree to the facts constituting

the alleged injuries.

3. Constitutionality of 34-A M.R.S. § 11221 (l)(Gl

The plaintiffs' challenge to the statute is facial; the court need not consider any facts.

4 Equal protection

The equal protection clause of the Maine Constitution provides that "[n]o person

shall ... be denied the equal protection of the laws .... "ME. CONST. art. I, § 6-

A. The United States Constitution provides similarly, and the two clauses provide

co-extensive protection. See U.S. CONST. amend. XIV, § 1; Sch. Admin. Dist.

No. I v. Comm 'r, Dep 't ofEduc. ,659 A.2d 854, 857 (Me. 1995). We apply a two-

step test to determine whether a statute violates the equal protection clause. First,

the party challenging the statute must show that similarly situated persons are not

treated equally under the law. See "Mahaney v. State, 610 A.2d 738, 743 (Me.

1992). Where this step is met, the Court must then detennine what level of

scrutiny to apply. See Sch. Admin. Dist. No. I, 659 A.2d at 857. Where, as here,

the challenged legislation does not involve a fundamental right or a suspect class,

the test under this step is whether the statute is rationally related to a legitimate

state interest. Id

Town of Frye bland v. State, 2008 ME 27, ~ 14,940 A.2d 1065, 1069.

An inquiry involving a determination of whether similarly situated persons are treated

equally under the law must proceed on the basis of facts presented by the party challenging the

statute (here, the plaintiffs). The court will consider the facts presented, to the extent they are

agreed to by the state defendants, in evaluating the parties' motions for summary judgment.

However, if the court can determine the statute's validity based upon the second step only, then

the state defendants may be entitled to summary judgment without reference to the equal

treatment of similarly situated persons.

5. Voici_lor vag11~~~,;;s

8

By definition, this argument attacks the statute facially, and consideration of particular

facts would be inappropriate in evaluating whether the statute itself is unconstitutionally vague.

6. Procedural due process

"The due process rights guaranteed by the Maine Constitution, Me. Const. art. I, § 6-A,

are coextensive with those guaranteed by the Fourteenth Amendment of the U.S. Constitution."

Northup v. Poling, 2000 ME 199, ~ 9 n.5, 761 A.2d 872, 875 n.5.

The Fourteenth Amendment to the United States Constitution and Maine

Constitution, article I, section 6-A protect individuals from deprivations of life,

liberty, or property by the State without due process of law. U.S. Const. amend.

XIV § 1; Me. Canst. art. I, § 6-A. See also Me. Const. art. I, § 19 (providing a

right to redress for injuries). To find a violation of the Fourteenth Amendment,

therefore, there must be (I) state action; (2) a deprivation of a life, liberty, or

property interest; and (3) inadequate process.

Botting v. Dep 't of Behavioral & Developmental Servs., 2003 ME 152, ~ 23, 838 A.2d 1168,

1176.

While the parties agree that SO RNA of 1999 represents state action, analysis of the

deprivation ofthe plaintiffs' alleged interests, and ofthe process they received in relation to the

process due, requires the consideration of certain facts. The court will consider them to the

extent the parties agree to the facts at issue.

7. Substantive due process

The Law Court has "repeatedly held that federal and Maine due process rights are

coextensive." State v. Millikin, 2010 ME 1, ~ 16, 985 A.2d 1152, 1157-58.

The doctrine of substantive due process "does not protect individuals from all

governmental actions that infringe liberty or injure property in violation of some

law. Rather, substantive due process prevents 'governmental power from being

used for purposes of oppression,' or 'abuse of government power that shocks the

conscience,' or 'action that is legally irrational in that it is not sufficiently keyed

to any legitimate state interests."'

PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28, 31-32 (1st Cir. 1991) (quoting Committee of

US. Citizens in Nicaragua v. Reagan, 859 F.2d 929, 943 (D.C. Cir. 1988)) (brackets omitted).

The Supreme Court has identified two primary features of its established method of

substantive due process analysis:

First, we have regularly observed that the Due Process Clause specially protects

those fundamental rights and liberties \vhich are, objectively, "deeply rooted in

9

this Nation's history and tradition," [Moore v. East Cleveland, 431 U.S. 494, 503

(1977)] (plurality opinion); Snyder v. Massachusetts, 291 U.S. 97, I 05 (1934)

("so rooted in the traditions and conscience of our people as to be ranked as

fundamental"), and "implicit in the concept of ordered liberty," such that "neither

liberty nor justice would exist if they were sacrificed," Palko v. Connecticut, 302

U.S. 319, 325, 326 (1937). Second, we have required in substantive-due-process

cases a "careful description" of the asserted fundamental liberty interest. [Reno v.

Flores, 507 U.S. 292, 302 (1993); Collins v. Harker Heights, 503 U.S. 115, 125

(1992); Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261,277-78 (1990)].

Washington v. Glucksburg, 521 U.S. 702, 720-21 (1997); Green v. Comm 'r of Mental Health &

Mental Retardation, 2000 ME 92, ~ 13, 750 A.2d 1265, 1270. "[T]he Fourteenth Amendment

'forbids the government to infringe ... 'fundamental' liberty interests at all, no matter what

process is provided, unless the infringement is narrowly tailored to serve a compelling state

interest."' Glucksburg, 521 U.S. at 721 (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)).

However, "[w]hen the State exercises its police power to regulate for the general welfare and a

fundamental right is not at issue, statutes are subjected to rational basis review." State v.

Haskell, 2008 ME 82, ~ 5, 955 A.2d 737, 739. "Great deference is given to social and economic

regulations, and reasonableness is presumed because it is the job of the Legislature, not the

courts, to balance competing interests. Consequently, the party challenging a statute has the

burden of proving its constitutional deficiency." !d. (citation omitted). "In order to prevail, a

party 'must establish the complete absence of any state of facts that would support the need for

[the statute's] enactment."' !d. (quoting Aseptic Packaging Council v. State, 637 A.2d 457, 461

(Me. 1994)).

The contention that a statute enacted as a purported exercise of a state's police

power is unconstitutional, as violative of substantive due process of law,

precipitates three inquiries: (1) whether the objective of the exercise of the police

power is legitimately within the scope of police power action; (2) whether the

means employed are appropriate to the achievement of the objective; and (3)

whether the manner in which the power is exercised is arbitrary or capricious.

State v. Nat'! Adver. Co., 409 A.2d 1277, 1288 (Me. 1979). "[T]he statute's justification need

not be expressly articulated or readily apparent 'so long as a court can divine some rational

purpose."' Ngo v. State, 2008 ME 71, ~ 14, 946 A.2d 424, 429 (quoting United States v. Neal,

46 F.3d 1405, 1409 (7th Cir. 1995)).

Because the plaintiffs, in order to invalidate the statute, must establish either a

fundamental right and the absence of narrow tailoring to a compelling state interest, OR the

10

complete absence of any state of facts that would support the need for the statute's enactment,

the court may consider the facts presented. However, it appears that a substantive due process

challenge in fact extends beyond the facts presented by the parties, as a statute that does not

infringe upon fundamental rights will be upheld, regardless of the legislature's cited facts, so

long as a court can divine some rational purpose.

8. Cruel and unusualm-tnishment

Article I of the Maine Constitution is a declaration of rights enjoyed by Maine

citizens. Section 9 sets limits on the State's power to punish: "Sanguinary laws

shall not be passed; all penalties and punishments shall be proportioned to the

offense; excessive bail shall not be required, nor excessive fines imposed, nor

cruel nor unusual punishments inflicted." Me. Canst. art. I, jJ 9.

State v. Gilman, 2010 ME 35, ,-r 12, 993 A.2d 14, 18. "[W]e hold that the clause, 'all penalties

and punishments shall be proportioned to the offense,' means what its plain language says, and

does not require consideration of the individual circumstances of each offender." !d. at ,-r 21, 993

A.2d at 21.

This count therefore does not require the court to consider any individualized facts other

than the offense or offenses of which each plaintiff was convicted.

9. Maine's Declaration of Rights

The argument under Article I, Section 1 of the Maine Constitution is somewhat akin to a

due process argument-the plaintiffs assert that this provision makes the rights that it guarantees

Mainers "fundamental" rights for the purposes of a substantive due process analysis. Because

the court will consider the facts agreed upon in its substantive due process analysis, it will

consider the same agreed-upon facts for its determination under the Maine Declaration of Rights.

10. ImQroper us~Q_fguilty_Q!~E:

The plaintiffs agree that their argument regarding the post hoc imposition of additional

requirements based upon a guilty plea is in essence an ex post facto argument, in that for the

state to "expand the consequences [of the plea] violates those [plea] agreements to the extent the

expansion is punishment." (Reply Memo. of Mitchell Firm Pis. and Opp. to State Defs. Cross-

Mot. for Summ. J. at 22.) Because the parties agree that the analysis of this count is the ex post

facto analysis under State v. Letalien, 2009 ME 130, 985 A.2d 4, and Letalien clearly states that

11

such analysis is facial rather than as-applied (id. at~ I, 985 A.2d at 7), the court need not

consider factual submissions in analyzing this claim.

lLRig_ht tol!!!:y tri_'1l

The plaintiffs acknowledge, "The state defendants are correct that if plaintiffs are entitled

to no hearing on dangerousness, they are not entitled to a jury trial." (Reply Memo. ofMitchell

Firm Pis. and Opp. to State Defs. Cross-Mot. for Summ. J. at 22.) The basis for their argument

of entitlement to a jury trial on the issue of dangerousness stems from an allegation that Maine's

registration system has become offender-based rather than offense-based, and that a hearing on

dangerousness is therefore required. This appears to be a facial challenge to the statute within

the procedural due process framework, and will require no consideration of additional factual

submissions.

12. Violation of the MCRA

The parties' arguments are limited to the recovery of restitution from the state, following

this court's dismissal of the claims for damages under the MCRA and 42 U.S.C. §1983 on

September 20, 2009. The court need not consider facts regarding the individual plaintiffs in

making its determination of the availability of restitution under the MCRA.

Having determined which of the plaintiffs' claims require the court to consider the

parties' agreed-upon facts, the comi will turn to the substantive analysis of the issues. For the

sake of efficiency, the court inverts the order of the ex post facto and justiciability analysis, as

the determination ofthe number of plaintiffs who stand to gain from this action will permeate the

analysis of all of the other claims.

I. Justiciability

As noted above, justiciability requires that the plaintiffs establish both standing to obtain

the relief requested, and a case and controversy, including an '"ongoing interest in the dispute'

on the part of the opposing party that is sufficient to establish 'concrete adverseness.'" Bond v.

United States,_ U.S. at_, 131 S. Ct. at 2361 (quoting Camreta v. Greene, 563 U.S.at _ ,

179 L. Ed. 2d at 1125). The State has argued that those plaintiffs who have been removed from

12

the registry pursuant to Chapter 570 have no further interest in the dispute, so the court lacks

jurisdiction absent a claim upon which these plaintiffs could recover. The plaintiffs counter that

even those plaintiffs who are no longer on the registry have a remedy to recover in this lawsuit,

including restitution under their MCRA and 42 U.S.C. §1983 claims, and a declaratory judgment

that the law under which they registered is unconstitutional, and that these claims are sufficient

to ensure their ongoing presence in this action.

The court discusses the MRCA and 42 U.S.C. §1983 arguments below, but for the

purposes of justiciability must reveal that the plaintiffs do not prevail on those arguments.

Therefore, the "ongoing interest in the dispute" that the plaintiffs who are no longer on the

registry allege is limited to a declaratory judgment that the law under which they registered,

since modified by Chapter 570, is unconstitutional. The plaintiffs' logic appears to be circular.

They assert that, "to support the restitution, the plaintiffs no longer on the registry are entitled to

a declaration that the prior law under which they were registered is unconstitutional, a finding

essentially mandated by Letalien even though they were not sentenced to registration as he was."

The purpose of requesting this declaratory judgment is that restitution cannot be awarded against

the state as a retroactive remedy, but only as an award ancillary to a prospective remedy. See,

e.g., Papasan v. Allain, 478 U.S. 265,278 (1986) (reliefthat is "tantamount to an award of

damages for a past violation of ... law, even though styled as something else," is barred by

sovereign immunity). So the plaintiffs' argument for justiciability is that they still have a valid

case and controversy because they can recover restitution ancillary to a prospective declaratory

judgment regarding illegality of their original registration requirements.

However, declaratory judgment actions in fact have the same requirements regarding a

valid and not moot case or controversy as other actions. See, e.g, Preiser v. Newkirk, 422 U.S.

395, 402 (1975) ("this Court, noting the difficulty in fashioning a precise test of universal

application for determining whether a request for declaratory relief had become moot, held that,

basically, 'the question in each case is whether the facts alleged, under all the circumstances,

show that there is a substantial controversy, between parties having adverse legal interests, of

sufficient immediacy and reality to warrant the issuance (~la declaratory judgment.'") (quoting

Maryland Cas. Co. v. Pacific Co., 312 U.S. 270,273 (1941)); TYagncrv. Sec'yofStatc, 663 A.2d

564, 567 (Me. 1995) ("The declaratory judgment statute is 'operative only in cases where a

genuine controversy exists.'") (quoting National Hearing Aid Ctrs., Inc. v. Smith, 376 A.2d 456,

13

458 (Me. 1977)); Hodgdon v. Campbell, 411 A.2d 667,670 (Me. 1980) ("All courts require the

declaratory plaintiff to show jurisdiction, a justiciable controversy and the joinder of necessary

parties.").

The court believes that the issue here is not ripeness, which both parties explicitly

addressed, but mootness. "Mootness 'is the doctrine of standing set in a time frame: The

requisite personal interest that existed at the commencement of litigation (standing) must

continue throughout its existence (mootness). '" Ten Citizens of the Town of Biddeford v. Town

of Biddeford, 2003 ME 59,~ 5, 822 A.2d 1196, 1199 (quoting Halfway House, Inc. v. City of

Portland, 670 A.2d 13 77, 13 79 (Me. 1996)). Courts analyze "mootness by examining the record

to determine 'whether there remain sufficient practical effects f1owing from the resolution of the

litigation to justify the application of limited judicial resources."' !d. (quoting Lewiston Daily

Sun v. Sch. Admin. Dist. No. 43, 1999 ME 143, ~ 14, 738 A.2d 1239, 1243). "A dispute loses its

controversial vitality when a decision by this court would not provide [a litigant] any real or

effective relief." !d. at~ 6, 822 A.2d at 1199 (quoting Int'l Paper Co. v. United Paperworkers

Int'l Union, 551 A.2d 1356, 1360-61 (Me. 1988)). "The Declaratory Judgments Act, 14

M.R.S.A. !3!3 5951-5963 (2003), also does not authorize their claim in the absence of injury. We

have consistently held that the Act may only be invoked when there is a genuine controversy."

!d. at~ 7, 822 A.2d at 1200.

There is no relief that this court could provide the plaintiffs who have already been

removed from the registry. Their petition for a declaratory judgment seeks a judgment on an

alleged wrong (the registration and associated costs for those plaintiffs currently free of

registration requirements) that is no longer present, so the declaratory judgment action is moot.

They cannot collect restitution from the state in the absence of a prospective claim, so that claim

does not avail them. 9 Because the court could not provide "any real or effective relief' to those

plaintiffs who have already had their registration obligations terminated, their claims are moot.

The state defendants' motion for summary judgment to this effect is GRANTED; the plaintiffs'

motion for summary judgment as to their continued vitality is DENIED.

II. Ex post facto

9

This proposition, and the precedent supporting it, is discussed in more detail in connection with the plaintiffs'

MCRA claim below.

14

L__I_he parties' arguments and the court's task after Letahen

The plaintiffs contend that the imposition of any registration requirement on any plaintiff

sentenced before 1991 constitutes an unconstitutional ex post facto act, and therefore seek to

reargue several arguments struck down in Letalien as to registrants who were sentenced after

1991, when Maine's first sex offender registration law took effect. They ultimately focus on the

three elements that the Letalien court identified as posing a constitutional problem-lifetime

registration, quarterly in-person verification, and the absence of a waiver procedure, see Letalien,

2009 ME 130, ~ 62, 985 A.2d at 26-and apply the Mendoza-Martinez factors to those three

elements in light of the legislative changes of Chapter 570 and the status of the plaintiffs as

having been sentenced prior to 1992. 10

The plaintiffs also focus on clear language in Letalien that suggests to them that any

statutory scheme that fails to provide some opportunity for an offender, any offender, to petition

for termination of SO RNA obligations at some point in his or her lifetime violates the mandate

ofthat case. Indeed, the holding of Letalien is as follows:

Specifically, we hold that the retroactive application of the lifetime registration

requirement and quarterly in-person verification procedures of SO RNA of 1999 to

offenders originally sentenced subject to SORA of 1991 and SORNA of 1995,

without, at a minimum, affording those offenders any opportunity to ever be

relieved of the duty as was permitted under those laws, is punitive. As to these

offenders, the retroactive application of SO RNA of 1999 is an unconstitutional ex

post facto law because it makes more burdensome the punishment for a crime

after its commission.

!d. at~ 62, 985 A.2d at 26 (quotations omitted). Unsurprisingly, the plaintiffs conclude that

SORNA of 1999, as revised, is unconstitutionally ex post facto as applied to them because the

statutory amendments make it impossible, based on legislative categorization of offenders, to

ever be free of the requirements of SO RNA.

SORA of 1991 and SO RNA of 1995 did in fact provide an opportunity to be relieved of

SORNA's requirements to all offenders subject to the provisions of those laws. SORA of 1991

provided that its registration requirements could be waived under four circumstances: (1)

vacating of the conviction; (2) granting of a full and free pardon; (3) issuance of a certificate of

10

Doe V was convicted in 1993, but was not subject to sex offender registration until the 200 I amendments to

,r

SORNA of 1999. See Doe v. District Attorney, 2007 ME 139, 14,932 A.2d 552, 556 ("In 2001, the Legislature

amended SO RNA to apply retroactively to sex offenders sentenced on or after June 30, 1992. See P.L. 200 I, ch.

439, f3 000-7 (effective Sept. 21, 200 I) (codified at 34-A tv! R.S.A. jJ 11202 (Supp. 200 I)).")

15

rehabilitation by a licensed counselor certified by the Forensic Evaluation Unit at the Department

of Mental Health and Mental Retardation that deals with sex offenders; or (4) waiver of the

registration requirement by the sentencing court for good cause shown. 34-A M.R.S § 11003

(1992), repealed by P.L. 2001, ch. 439, § 000-5 (effective Sept. I, 2001). It was amended in

1993 by P.L. 1993, chapter 193 §3, which repealed the provision for waiver upon issuance of a

certificate of rehabilitation, and provided instead for waiver if:

The Superior Comi, upon the petition of the sex offender, waives the registration

requirement.

A sex offender may not petition for waiver of the registration requirement until at

least 5 years after the sex offender is first required to register.

A sex offender may petition once a year for waiver of the registration

requirement.

Before waiving the registration requirement, the court must determine that the sex

offender has shown a reasonable likelihood that registration is no longer

necessary and waiver of the registration requirement is appropriate. The court

shall consider the sex offender's progress in treatment and may request an

independent forensic evaluation provided through the State Forensic Service. If

the court orders an independent forensic evaluation, the court shall reimburse the

State Forensic Service for the cost of the evaluation and order the sex offender to

reimburse the court for the cost of the evaluation ....

34-A M.R.S. §11003 (C-1) (1993), repealed by P.L. 2001, ch. 439, §000-5 (effective Sept. 21,

2001). SORNA of 1995 maintained the 1993 amendments. 34-A M.R.S. §§11003, 11121

(1996), repealed by P.L. 2001, ch. 439 §000-5 (effective Sept. 21, 2001).

The fact that the Law Court's holding in Letalien points specifically to the waiver

provisions of SORA of 1991 and SO RNA of 1995, together with the clear language, "without at

a minimum, affording those offenders any opportunity to ever be relieved of the duty as was

permitted under those laws," Letalien, 2009 ME 130, lf62, 985 A.2d at 26 (emphasis added),

suggests to this court that the Law Court was in fact concerned about any statutory scheme which

imposed retroactive lifetime obligations on offenders without providing any opportunity to be

relieved of those obligations.

The court also recognizes the plaintiffs' argument that the legislature sought to add an

individualized waiver scheme to Chapter 570, and that the only reason an individualized waiver

scheme was not included was that it would cost too much money for the judicial branch. The

plaintiffs point to the summary of H.P. 1305, L.D. 1822, the bill that was signed into law as P.L.

2009, ch. 570, which provides in pertinent part: "An additional waiver scheme that authorized

16

registrants to petition the court for relief from the duty to register was not included in the bill at

this juncture due to a substantial fiscal note from the judicial branch, but may be considered

again in the next legislative session." (Mitchell Pis. S.M.F. 20, quoting L.D. 1822, Summary

(124th Legis. 2010)).

Turning to the state defendants' arguments, they contend that the Law Court's holding in

Letalien that SORNA of 1999 was unconstitutionally ex post facto as applied to those sentenced

under SORA of 1991 and SORNA of 1995 was based upon the combination offour factors: (1)

the fact that the original registration requirements were part of the offender's sentence; (2) the

increase of registration time to a lifetime requirement; (3) new quarterly in-person verification

requirements; and (4) removal of the opportunity to be relieved from the registration

requirements. Because Letalien was grounded in the combination of these factors, the state

defendants argue, the legislature's modifications to these requirements under Chapter 570,

including reduction of the in-person verification requirements and allowing large classes of

registrants to petition for relief from registry verification requirements, relieve the burden that

was found in the aggregate to be unconstitutionally ex post facto.

The state defendants contend that the plaintiffs are in a different position than Letalien in

that they were not sentenced under SORA or SO RNA, so that the requirements of SO RNA of

1999, imposed upon the majority of these plaintiffs in 2005, 11 did not modify their sentences and

thus cannot constitute an ex post facto punishment. The state points to the language in Letalien

which focused on the "unique history of the development of sex offender registration laws in

Maine," together with the conclusion that "[b ]ecause sex offender registration was required to be

part of Letalien's criminal sentence, the retroactive application of SO RNA of 1999's

requirements to Letalien modified and enhanced a portion of his sentence." Letalien, 2009 ME

130, ~~ 39, 43, 985 A.2d at 19, 20 (emphasis added). This court finds that argument to be quite

unpersuasive. The court believes that the Law Court was using this analysis to conclude that

Letalien was subject to punishment by the enactment of SO RNA of 1999 in its removal of a

See Doe v. District Attorney, 2007 ME 139, ~ 14, 932 A.2d 552, 556 ("In 200 I, the Legislature amended SO RNA

11

to apply retroactively to sex offenders sentenced on or after June 30, 1992. See P.L. 200 I, ch. 439, 13 000-7

(effective Sept. 21, 2001) (codified at 34-A MR.S.A.jJ I 1202 (Supp. 2001)) .... The Legislature amended SORNA

in 2005 to apply retroactively to all sex offenders sentenced as of January I, 1982. P.L. 2005, ch. 423, l3 I (effective

Sept. 17, 2005) (codified at 34-A M R.S. jJ /1202 (2006))."). Doe V was convicted in 1993, but was not subject to

sex offender registration until the 2001 amendments to SORNA of 1999. Does Ill, X, XIV, XIX, XXIII, and XLIII

became subject under the 2005 amendments.

17

waiver provision, and not as a suggestion that any offender sentenced before the enactment of

SORA of 1991 and SORNA of 1995 would be ineligible to even argue that he or she ought to be

protected from imposition of an ex post facto law.

The presumption against the retroactive application of new laws is an essential

thread in the mantle of protection that the law affords the individual citizen. That

presumption "is deeply rooted in our jurisprudence, and embodies a legal doctrine

centuries older than our Republic." Landgrafv. US! Film Products, 511 U.S. 244,

265, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994). This doctrine finds expression in

several provisions of our Constitution. The specific prohibition on ex post facto

12

laws is only one aspect of the broader constitutional protection against arbitrary

changes in the law. In both the civil and the criminal context, the Constitution

places limits on the sovereign's ability to use its lawmaking power to modify

bargains it has made with its subjects. The basic principle is one that protects not

only the rich and the powerful, United States v. Winstar Corp., 518 U.S. 839, 135

L. Ed. 2d 964, 116 S. Ct. 2432 (1996), but also the indigent defendant engaged in

negotiations that may lead to an acknowledgment of guilt and a suitable

punishment.

"The Ex Post Facto Clause flatly prohibits retroactive application

12

of penal legislation. . . . The Due Process Clause also protects the

interests in fair notice and repose that may be compromised by

retroactive legislation . . . ." Landgraf v. US! Film Products, 511

US. at 266 (footnote omitted).

Lynce v. Mathis, 519 U.S. 433,439-40 (1997). "The bulk of [the Supreme Court's] ex post facto

jurisprudence has involved claims that a law has inflicted 'a greater punishment, than the law

annexed to the crime, when committed."' !d. at 441 (quoting Calder v. Bull, 3 U.S. 386,3 Dall.

386, 390, 1 L. Ed. 648 (1798)). "[S]uch laws implicate the central concerns of the Ex Post Facto

Clause: 'the lack of fair notice and governmental restraint when the legislature increases

punishment beyond what was prescribed when the crime was consummated."' !d. (quoting

Weaver v. Graham, 450 U.S. 24, 30, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981)).

"To fall within the ex post facto prohibition, a law must be retrospective--that is, 'it must

apply to events occurring before its enactment'-and it 'must disadvantage the offender affected

by it,' by altering the definition of criminal conduct or increasing the punishment for the crime."

!d. (quoting Weaver, 450 U.S. at 29, and citing Collins v. Youngblood, 497 U.S. 37, 50 (1990)).

The sex offense convictions serving as the predicate for the plaintiffs' registration requirements

occurred before the enactment of SO RNA of 1999. And the registration and verification

requirements do "disadvantage" the plaintiffs, in that their convictions, already a matter of public

record, are made easily available by the registry, and in that they must report to law enforcement

18

and provide information to law enforcement on a regular basis, in some cases for the duration of

the offender's lifetime.

The state defendants' assertion that any number of requirements, no matter how onerous,

may be heaped onto the plaintiffs based upon their convictions without "increasing the

punishment for the crime" because the plaintiffs were sentenced prior to the existence of any sex

offender registry defies logic, and is constitutionally unsound. The court has already ascertained

that a retrospective law disadvantaged the plaintiffs; it is a matter of delicate balancing pursuant

to the intent-effects test (see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963),

discussed below) to determine whether that retrospective law had effects so punitive that it must

be considered a criminal sanction rather than the civil categorization the legislature intended.

The analysis of whether SORNA of 1999, as amended, increased the punishment for the

plaintiffs' crimes is thus completely independent of their original sentences; it is the convictions,

rather than the sentences, which serve as the predicate for the applicability of SORNA of 1999,

and the Mendoza-Martinez intent-effects test which will help the court to determine whether

SORNA of 1999 goes beyond disadvantageous and into unconstitutionally retrospectively

punitive.

This court conceives the task before it to be fundamentally different from the framework

proposed by both the plaintiffs and state defendants. The court rejects, in part, the notion that

there are four factors which worked in combination to make SORNA of 1999 unconstitutional,

as the court has found highly unpersuasive the state's argument that the plaintiffs are not eligible

to challenge Chapter 570 because they were not sentenced under SORA or SORNA. However,

the court does agree that it must consider the state defendants' argument that the Law Comi in

Letalien found SORNA of 1999 to be unconstitutional based upon a combination of factors, but

finds that there are three and not four factors to be considered. Those factors are, as the plaintiffs

also highlight: (1) the increase of registration to a lifetime requirement; (2) new quarterly in-

person verification requirements; and (3) removal of the opportunity to be relieved from the

registration requirements. The state defendants' argument is that, since Letalien was grounded in

the combination of these factors, the legislative response to Letalien is constitutional because

Chapter 570 reduced the in-person verification requirements and allowed large classes of

registrants to petition for relief from registry verification requirements, thus relieving two of the

three factors in some measure. The plaintiffs emphasize the language from the holding of

19

Letalien, discussed above, which they asserts render the legislative response constitutionally

inadequate because, among other reasons, there remain large numbers of offenders who can

never be relieved from obligations imposed by SORNA.

The tasks before the court include a reconciliation, to the extent possible, of the language

in Letalien suggesting that the provisions of SO RNA of 1999 imposing, after sentence, lifetime

registration and verification obligations for offenders without an opportunity for the offenders

ever to relieved of those obligations was constitutionally unacceptable, with other language from

the case that may suggest that it was a combination of the three factors described above that was

constitutionally unacceptable. The primary focus of the court's decision, however-at least this

much is clear from Letalien-must be application of the Mendoza-Martinez intent-effects test to

the legislative response to the Law Court's decision in that case.

2. Application of the Mendoza-Martinez intent-effects test

The United States Constitution provides that "[n]o State shall ... pass any ... ex post

facto Law." U.S. Canst. art. I,§ 10, cl. 1. The Maine Constitution likewise provides, "The

Legislature shall pass no ... ex post facto law." Me. Canst. art. I, § 11. "[T]he ex post facto

clauses ofthe Maine and United States Constitutions are interpreted similarly and are

coextensive." Letalien, 2009 ME 130, ~ 25, 985 A.2d at 14. A "statute which punishes as a

crime an act previously committed, which was innocent when done; which makes more

burdensome the punishment for a crime, after its commission, or which deprives one charged

with crime of any defense available according to law at the time when the act was committed," is

an ex post facto law. /d. at~ 17, 985 A.2d at 12 (quoting Collins v. Youngblood, 497 U.S. 37, 42

(1990)).

In analyzing ex post facto challenges to SORNA of 1999, the Law Court has consistently

followed "the two-step 'intent/effects' test employed by the United States Supreme Court in

[Smith v. Doe, 538 U.S. 84, 92 (2003)], and Hudson v. United States, 522 U.S. 93, 99, 118 S. Ct.

488, 139 L. Ed. 2d 450 (1997)." Letalien, 2009 ME 130, ~ 29,985 A.2d at 16 (citing State v.

Haskell, 2001 ME 154, ~~ 8-22, 784 A.2d 4, 8-16, and Doe, 2007 ME 139, ~~ 22-28, 32, 36, 932

A.2d at 559-63). "If SO RNA measures are deemed civil rather than criminal in nature ... they

do not implicate the Ex Post Facto Clause." Haskell, 2001 ME 154, ~ 7, 784 A.2d at 8.

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

20

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 US. 144,

168-169, 83 S. Ct. 554, 567-568, 9 L. Ed. 2d 644 (1963), provide useful guideposts,

including: (1) "whether 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 detetTence"; (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 5 68, and only the clearest proof will

suffice to override legislative intent and transform what has been denominated a

civil remedy into a criminal penalty.

!d. at, 8, 784 A.2d at 8 (quoting Hudson v. United States, 522 U.S. 93,99-100 (1997)). "[T]he

Supreme Court has intimated ... that the most significant question under the effects stage of the

analysis is whether the law, 'while perhaps having certain punitive aspects, serves important non

punitive goals."' !d. at, 9, 784 A.2d at 9 (quoting United States v. Ursery, 518 U.S. 267,290,

(1996)).

The law court has repeatedly held that SORNA of 1999 "was intended by the Legislature

to be a civil regulatory statute," noting "the Legislature's express statement that SORNA of 1999

is intended to 'protect the public from potentially dangerous registrants by enhancing access to

information concerning those registrants,'" and that the Legislature "placed SORNA of 1999

entirely outside ofthe Criminal Code." Letalien, 2009 ME 130,, 30, 985 A.2d at 16 (quoting

34-A M.R.S. § 11201 (2008)); see also State v. Cosgro, 2008 ME 64, .,-r 3 n.l, 945 A.2d 1221,

1223; Doe, 2007 ME 139,, 27, 932 A.2d at 560; Haskell, 2001 ME 154,, 12, 784 A.2d at 10.

Given that the law court's analysis is clear on this factor, the plaintiffs' burden is also clear-cut:

"one challenging a statute as imposing ex post facto punishment must demonstrate by the

clearest proof that the statute is so punitive in purpose or effect as to overcome the Legislature's

civil intent." Cosgro, 2008 ME 64,, 2, 945 A.2d at 1222 (quotations omitted). With this

standard in mind, the court turns to the analysis of the seven Mendoza-Martinez factors.

i. Affirmative disability or restraint

21

As to the first factor, "affirmative disability or restraint" (see Mendoza-Martinez, 372

U.S. at I68), the Law Court held in Letalien that "quarterly, in-person verification of identity and

location of home, school, and employment at a local police station, including fingerprinting and

the submission of a photograph, for the remainder of one's life, is undoubtedly a form of

significant supervision by the state," constituting a "disability or restraint that is neither minor

nor indirect." Letalien, 2009 ME I30, ~ 37, 985 A.2d at I8. The Letalien court distinguished

Maine's then-applicable registration scheme from cases where the sex offender registration laws

had been held not to impose a restraint "because the relevant laws afforded offenders the

opportunity to seek the early termination of the registration requirement." Letalien, 2009 ME

130, ~ 37 n. 9, 985 A.2d at 18 n.9 (citing Doe v. Pataki, 120 F.3d I263, 1284-85 (2d Cir. 1997),

amended on other grounds by 120 F.3d 1263, 1285 (2d Cir. 1997) (addressing a duty to register

in person every ninety days for a minimum often years); Doe v. Poritz, 142 N.J. 1, 662 A.2d

367, 378 (N.J. I995) (noting that the statute's lifetime registration requirements could be

terminated early if an offender is offense-free for fifteen years and "can persuade the court that

he or she is not likely to pose a threat to the safety of others")). The Letalien court went on to

note that a third case, Doe v. Otte, 259 F.3d 979, 987 (9th Cir. 2001), had been reversed by the

United States Supreme Court in Smith v. Doe, 538 U.S. 84, 106 (2003), wherein the Supreme

Court noted that the Ninth Circuit opinion, which had ruled that lifelong quarterly in-person

verification did create an affirmative disability, had mistakenly construed the Alaska statute as

requiring in-person updates. Smith, 538 U.S. at I 0 I; see also Doe v. District Attorney, 2007 ME

I39, ~ 32, 932 A.2d at 562.

The Law Court's analysis of this factor supports the state defendants' argument that

Letalien stands for the proposition that the requirements imposed by SORNA of 1999, taken

cumulatively, amounted to an unconstitutional ex post facto punishment. By distinguishing

cases where the burden of in-person registration requirements was ameliorated by an opportunity

to seek termination of the registration requirement, the court believes the Law Comi gives some

indication of the meaning of its oft-quoted sentence: "[W]e hold that the retroactive application

of the lifetime registration requirement and quarterly in-person verification procedures of

SORNA of I999 to offenders originally sentenced subject to SORA of I991 and SORNA of

1995, without, at a minimum, affording those offenders any opportunity to ever be relieved of

22

the duty as was permitted under those laws, is punitive." Letalien, 2009 ME 130, ~ 62, 985 A.2d

at 26.

However, the question remains as to whether the requirements of SO RNA of 1999, as

revised by Chapter 570, constitute an affirmative disability and restraint as to registrants

convicted of crimes prior to 1991. The Law Court specifically found that the in-person

verification procedures constituted a significant and direct disability and restraint, noting, "These

provisions, which require lifetime registrants, under threat of prosecution, to physically appear at

their local law enforcement agencies within five days of receiving a notice by mail, place

substantial restrictions on the movements of lifetime registrants and may work an 'impractical

impediment that amounts to an affirmative disability."' !d. at~ 37, 985 A.2d at 18 (citing Doe,

2007 ME 139, ~ 32, 932 A.2d at 562). Chapter 570 has reduced the frequency of registrants' in-

person verification requirements, such that a lifetime registrant may verify his or her information

in writing quarterly and in person every five years, or when law enforcement has reason to

believe his or her appearance has changed significantly; a ten-year registrant verifies in writing

annually and in person every five years or when law enforcement has reason to believe his or her

appearance has changed significantly. 34-A M.R.S. §11222(4-A) and (4-B) (2011). These

amendments affect in-person registration requirements for those sentenced between January 1,

1982 and September 18, 1999, including the plaintiffs. !d.

In addition, Chapter 570 added several exceptions to the registration requirement of 34-A

M.R.S. § 11202-A (2009). These amendments allow several groups of lifetime registrants to

petition for removal from the registry, including (1) registrants sentenced in Maine between

January 1, 1982 and June 30, 1992, who were finally discharged from the correctional system at

least 10 years prior to their petition for removal; (2) registrants sentenced in Maine on or after

June 30, 1992 and prior to September 18, 1999, who were finally discharged from the

correctional system at least 10 years prior to their petition for removal; (3) registrants who were

sentenced in another jurisdiction, were finally discharged from the correctional system at least 10

years prior to their petition for removal, and who have been in compliance with the registration

duties as a resident required under subchapter 2 since September 12, 2009; and (4) registrants

sentenced in Maine on or after September 18, 1999 and prior to July 30, 2004 for a violation of

former Title 17A, section 252 who were finally discharged from the correctional system at least

10 years prior to their petition for removal; any of whom must not have been convicted of more

23

than one Class A sex offense, who must not have been convicted of a sex offense or a sexually

violent offense prior to the registrable offense, and who must not have been convicted of a crime

punishable by imprisonment for a term of one year or more subsequent to the registrable sex

offense. 34-A M.R.S. §11202-A (2011).

The Chapter 570 modifications do significantly ease the burdens that the Law Court

found punitive in Letalien. However, the statute continues to impose "restraints," on its

registrants, albeit more "indirect" and "minor" than those at issue in Letalien. While the ability

to seek relief from registration requirements is a boon to those who can benefit from it, many

registrants cannot, including several of the plaintiffs. Cf Doe v. District Attorney, 2007 ME 139,

~ 35, 932 A.2d at 563 ("[T]he fact that a sex offender never has the ability to escape the

registration requirements ofthe current SORNA, regardless of behavior, consequences, or

contributions following the conviction, strikes us as having the capability to be excessive and as

diverging from the purpose of protecting the public.").

Likewise, while a reduction in the frequency of in-person verification may lighten the

onus of the verification requirement in theory, in practice, the statute still compels "registrants,

under threat of prosecution, to physically appear at their local law enforcement agencies within

five days of receiving a notice by mail, place[s] substantial restrictions on the movements of ...

registrants and may work an 'impractical impediment that amounts to an affirmative disability."'

Letalien, 2009 ME 130, ~ 37, 985 A.2d at 18 (citing Doe, 2007 ME 139, ~ 32,932 A.2d at 562).

It is thus more restrictive than the statute approved by the United States Supreme Court in Smith

v. Doe, 538 U.S. 84, 101 (2003) ("[T]he record contains no indication that an in-person

appearance requirement has been imposed on any sex offender subject to the Act."). The

provision allowing additional in-person verification requirements "ifthere is a reason to believe

the [registrant's] appearance has changed significantly," 34-A M.R.S. § 11222(4-A)(C), (4-B)(C),

is also significantly intrusive. Rather than in-person verification submissions based upon a set

period of time, this provision compels registrants to "physically appear at their local law

enforcement agencies within five days of receiving a notice by mail" without advance notice to

allow registrants to anticipate such verification procedures. Letalien, 2009 ME 130, ~ 37, 985

A.2d at 18. This is a significant governmental intrusion. It may be one that is sustainable under

the remaining factors of the Mendoza-Martinez analysis, but the "affirmative disability or

24

restraint" factor weighs in favor of a finding that the statute is punitive, even once Chapter 570's

mitigating provisions are taken into account.

ii. H_istoricill_interpretation as rmnishment

Turning to the second Mendoza-Martinez factor, whether retroactive application of the

law has historically been regarded as a punishment (see Mendoza-Martinez, 372 U.S. at 168), the

Letalien court reached two separate conclusions. First, citing Smith v. Doe, 538 U.S. 84, 97-99

(2003), the law comi held that that "Internet posting pursuant to SO RNA of 1999 is not punitive

in purpose or effect." Letalien, 2009 ME 130, ~ 38, 985 A.2d at 19. The Law Court then

considered Maine's unique legislative history and concluded that "retroactive application of

SO RNA of 1999 to offenders who were sentenced on or after June 30, 1992, and before

September 18, 1999, should be regarded as punishment." Jd. at~ 39, 985 A.2d at 19. This

conclusion was due to the fact that the versions of the sex offender registration statutes in place

between June 30, 1992 and September 18, 1999, "authorized sentencing judges, as part of the

sentencing process, to waive an offender's duty to register," (id.), whereas SORNA of 1999

eliminated this exercise of judicial discretion. !d. at~~ 42-43, 985 A.2d at 20.

As discussed above, the state defendants argue that Letalien's holding does not apply to

the plaintiffs, since that case noted, "Because sex offender registration was required to be part of

Letalien's criminal sentence, the retroactive application of SORNA of 1999's requirements to

Letalien modified and enhanced a portion of his criminal sentence," and therefore, "the

retroactive application of SO RNA of 1999 makes more burdensome the punishment for a crime

after its commission," ultimately finding that, "SORNA of 1999 is punitive as applied to those

offenders who were originally made subject to SORA of 1991 or SORNA of 1995." Letalien,

2009 ME 130, ~ 43, 985 A.2d at 20-21(quotations omitted).

The plaintiffs, however, counter that the essence of an ex post facto law is that

punishment becomes more burdensome after the commission of a crime, and that therefore, their

being subject to SORNA of 1999 is even more troublesome than that ofLetalien and his class of

registrants, since the Letalien class of registrants originally had some registration requirement

which then became more onerous, but the plaintiffs ended up facing all ofthe onerous

requircmenls of Let alien, with no notice that they would ever be required to meet its

specifications. Or as plaintiffs state in their argument regarding lifetime registration: "For

plaintiffs, the journey is not from fifteen years to lifetime but from no years to lifetime." The

25

plaintiffs then argue that insofar as their situation is different from Letalien's and they were not

notified that there would be a registration requirement, the internet publication that was approved

in Letalien, 2009 ME 130, ~ 38, 985 A.2d at 19, may still be unconstitutionally ex post facto as

to them.

There now appears to be a multi-jurisdictional consensus that the internet registration

requirement is not punitive, even as applied to those who were not originally subject to it. See,

e.g., Smith v. Doe, 538 U.S. at 91, 99; A.A. ex ref. MM v. New Jersey, 341 F.3d 206 (3d Cir.

2003); Femedeer v. Haun, 227 F.3d 1244, 1248, 1253 (lOth Cir. 2000); A.A. v. State, 895 A.2d

453 (N.J. Super. 2006); State v. Gragg, 137 P.3d 461,464-65 (Idaho Ct. App. 2005); People v.

Cornelius, 821 N.E.2d 288, 292, 307 (Ill. 2004); Haislop v. Edgell, 593 S.E.2d 839, 845-46 (W.

Va. 2003); In re: WM, 851 A.2d 431,446 (D.C. App. 2004). Even ifthis were not the case, this

court is bound by the determinations of the Supreme Court as to the Federal constitution, and of

the Law Court as to the Maine Constitution, and both courts have plainly and clearly ruled that

internet posting is not punitive for purposes of an ex post facto analysis. See Smith v. Doe, 53 8

U.S. at 98-99 ("In contrast to the colonial shaming punishments, however, the State does not

make the publicity and the resulting stigma an integral part of the objective of the regulatory

scheme .... These facts do not render Internet notification punitive. The purpose and the

principal effect of notification are to inform the public for its own safety, not to humiliate the

offender."); Letalien, 2009 ME 130, ~ 38, 985 A.2d at 19 ("[W]e conclude that Internet posting

pursuant to SO RNA of 1999 is not punitive in purpose or effect."). This court is bound by those

determinations, which do not make a distinction based upon whether registration was part of the

offender's original sentence or whether it was imposed separately and subsequent to his or her

conviction.

Having rejected both the plaintiffs' argument that the Internet registration requirement is

unconstitutionally ex post facto as to them and the state defendants' argument that the plaintiffs

are ineligible for ex post facto protection in Maine because they were not sentenced under SORA

of 1991 or SO RNA of 1995, the court turns to the question of whether sex offender registration,

apart from Internet registration, is historically considered punishment. Letalien held that

retroactive registration was historically considered punishment, that is, that the second Jvfendoza-

Martinez factor suggested that SO RNA of 1999 was punitive as to registrants originally

sentenced under either SORA of 1991 or SORNA of 1995, that is, when the registration was

26

ordered as part of a sex offender's sentence unless waived by judicial decree. Letalien, 2009 ME

130, ~~ 42-43, 985 A.2d at 20-21. The court notes that Letalien limited its analysis to the case

before it in that the case only dealt with a situation in which the registration requirements of

SORNA of 1999 were applied retroactively to sex offenders who were convicted and sentenced

of sex crimes under either SORA of 1991 or SO RNA of 1995.

Analysis of the same factor for those registrants convicted of sex offenses between 1982

and 1991 requires that the court consider more generally what the term "punishment" means for

those registrants convicted and sentenced before the enactment of any registration law. See

Letalien, 2009 ME 130, ~ 61, 985 A.2d at 25; cf P.L. 2003, ch. 771, § B-13 (eff. July 30, 2004)

(codified at 17-A M.R.S. § 1152(2-C) (2006) (modifying SORNA of 1999 to remove the

provision stating that registration should be ordered "as part of the sentence" and to substitute,

"At the time the court imposes a sentence"). Letalien noted, "[W]hen sex offender registration is

made a part of an offender's criminal sentence, it necessarily constitutes a part of the punishment

administered by the State in response to that offender's criminal conviction." Letalien, 2009 ME

130, ~ 61, 985 A.2d at 25. When the legislature first enacted sex offender registration in Maine,

it enacted those requirements as part of the offender's sentence-and therefore "part of the

punishment administered by the State in response to that offender's criminal conviction." !d.

Even after the legislature had amended SORA of 1991 and SORNA of 1995, the registration

requirement remained part of the offender's sentence-and thus, punishment, at least in part-

until P.L. 2003, ch. 771, § B-13 (effective July 30, 2004), codified at 17-A M.R.S. § 1152(2-C)

(2005). See State v. Johnson, 2006 ME 35, ~ 14, 894 A.2d 489, 492. While the Legislature has

since recast SO RNA of 1999 as part of a civil regulatory scheme, rather than part of a sex

offender's sentence, the Law Court emphasized the importance of"[t]he unique history ofthe

development of sex offender registration laws in Maine ... to the question of whether the

retroactive application of SORNA of 1999 ... should be regarded as punislunent." Letalien,

2009 ME 130, 'if 39, 985 A.2d at 19. Examination ofthe registry's history shows the closeness of

its association with punishment. The court recognizes that the plaintiffs' connection to the

"sentencing" and therefore punishment provisions of the registration scheme are slightly more

attenuated than those of the Letalien class, who \Vere sentenced to registration, but notes that the

burdens imposed by retroactive application of SO RNA of 1999 to the plaintiffs-including but

not limited to the initial registration process, the quarterly \-vritten requirements, the in-person

27

verification every 5 years, and the inability to ever petition for removal from the registry-

impose duties upon the plaintiffs, in perpetuity, of more that their initial sentences (or

"punishment") required. "[B]ecause the purpose of the ex post facto prohibition is rightfully

considered to be at its apex when a law's retroactive application is more punitive than the

punishment that was actually imposed against an offender as part of a sentence," Letalien, 2009

ME 130, ~ 61, 985 A.2d at 25-26, the court considers this factor to weigh in favor of a finding

that the retroactive application of SO RNA of 1999 to the plaintiffs is punitive.

iii. Scienter

"The third factor asks whether the obligation to register according to SORNA is triggered

only on a finding of scienter. In Haskell we concluded that it is not and that this factor supports

SORNA being viewed as non-punitive." Letalien, 2009 ME 130, ~ 44, 985 A.2d at 21 (citing

Mendoza-Martinez, 372 U.S. at 168; Haskell, 2001 ME 154, ~ 17, 784 A.2d at 12).

iv. Promotion of retribution and deterrence

"The fourth factor requires consideration of whether SO RNA of 1999 promotes

retribution and deterrence, the traditional aims of punishment." Letalien, 2009 ME 130, ~ 45,

985 A.2d at 21 (citing Mendoza-Martinez, 372 U.S. at 168). In Smith v. Doe, 538 U.S. 84, 102

(2003), the United States Supreme Court found that Alaska's SORNA was not punitive merely

because the statute might deter future crimes, nor was it retributive, even though it was applied

based upon the extent of the wrongdoing rather than the extent of the risk posed. In its analysis

of Maine's SORNA, the law court considered this factor to be "neutral" as to its determination of

whether SORNA is punitive. Letalien, 2009 ME 130, ~ 46, 985 A.2d at 21. In the law court's

view, the record before it provided little basis on which to assess the reasonableness of SO RNA

of 1999's disparate treatment categorizing some offenders as lifetime registrants and others as

ten-year registrants, or on which to determine "whether Maine's requirement oflifetime

registration is reasonably related to the danger of recidivism." !d.

This court considers that the legislative provisions of Chapter 570 help to mitigate this

disparity as to offenders who are categorized as lifetime registrants based upon actions

undertaken prior to the effective date of SORNA of 1999, previously given no opportunity to

petition for removal from the registry, regardless of their likelihood to reoffend. The

28

amendments allow several groups of lifetime registrants to petition for removal from the registry,

as discussed in cmmection with the court's analysis of whether SORNA of 1999, as amended,

constitutes an affirmative disability or restraint. Those categories of registrants eligible to

petition for removal from the registry have in common an absence of multiple offenses, whether

sex offenses or felony offenses, and a "[final] discharge[] from the correctional system at least 10

years prior to submitting documentation to the bureau" seeking removal from the registry. 34-A

M.R.S. §11202-A (2011).

While SORNA of 1999, like the Alaska statute considered in Smith, "differentiates

between individuals convicted of aggravated or multiple offenses and those convicted of a single

nonaggravated offense," Smith, 538 U.S. at 102, the United States Supreme "Court recognized in

Smith that 'the broad categories, however, and the corresponding length of the reporting

requirement, are reasonably related to the danger of recidivism, and this is consistent with the

regulatory objective.'" Letalien, 2009 ME 130, ~ 45, 985 A.2d at 21 (quoting Smith, 538 U.S. at

102) (brackets omitted).

It appears that the legislature, in amending the statute to create these exceptions, was

attempting to create greater congruence between a registrant's likelihood to reoffend and the

registrant's lifetime registration requirement. There remain broad categories of offenders whose

lifetime registration requirement is not ameliorated by these legislative categories, and who do

not have an opportunity to present evidence of their non-dangerousness in order to pursue

removal from the registry. However, in light ofthe Law Court's finding that SORNA of 1999

was neutral as to this factor when it did not allow any registrants to petition for removal, the

court finds that the statute remains neutral as to its promotion of the traditional aims of

punishment, retribution and deterrence.

v. AQplication based upon conviction of a crime

The fifth Mendoza-Martinez factor requires the court to consider whether the behavior to

which SORNA of 1999 applies is already a crime. Mendoza-Martinez, 372 U.S. at 168.

Because registration under SORNA of 1999 only applies to offenders who were

convicted of specified crimes, does not arise based on individualized assessment

of an olTender's risk of recidivism, and cannot be waived based on proof that an

offender poses little or no risk, SORNA of 1999 applies exclusively to behavior

that is already a crime. It is punitive in effect in this respect.

29

Letalien, 2009 ME 130, ~ 48, 985 A.2d at 22 (citing Smith, 538 U.S. at 112-13 (Stevens, J.,

dissenting); Doe v. Alaska, 189 P.3d 999, 1015 (Alaska 2008)). The Chapter 570 amendments

do not alter this analysis, and so this factor continues to weigh in favor of a finding that SO RNA

of 1999 is punitive.

vi. Connection to non-punitive purpose

The court next considers the sixth Mendoza-Martinez factor, whether SORNA of 1999

has a rational connection to a non-punitive purpose. Mendoza-Martinez, 372 U.S. at 168-69.

The Supreme Court has intimated, in other cases, that this is the most significant question under

the effects stage of the analysis: whether the law, "while perhaps having certain punitive aspects,

serves important non punitive goals." Haskell, 2001 ME 154, ~ 9, 784 A.2d at 9-10 (citing

United States v. Ursery, 518 U.S. 267,290 (1996); Moore v. Avoyelles Carr. Ctr., 253 F.3d 870,

873 (5th Cir. 2001) ("The most significant question under [the effects] stage of the 'intent-

effects' analysis is whether the law[,] while perhaps having certain punitive aspects, serves

important nonpunitive goals.") (quotations and brackets omitted); Russell v. Gregoire, 124 F.3d

1079, 1091 (9th Cir. 1997), cert. denied, 523 U.S. 1007 (1998)); see also Smith, 538 U.S. at 102

("The Act's rational connection to a nonpunitive purpose is a 'most significant' factor in our

determination that the statute's effects are not punitive.") (quoting Ursery, 518 U.S. at 290).

"There is no doubt that SO RNA of 1999 serves a valid governmental purpose separate from

punishment. The Legislature declared that SORNA of 1999 is intended 'to protect the public

from potentially dangerous registrants by enhancing access to information concerning those

registrants."' Letalien, 2009 ME 130, ~50, 985 A.2d 22 (quoting 34-A M.R.S. §11201 (2008)).

"Protecting the public from potentially dangerous sex offenders is, without question, a

compelling state interest in furtherance of the state's police powers .... The protection advanced

by SORNA is among the most basic obligations state government owes its people--ensuring their

safety." !d. SORNA advances these safety concerns "by alerting the public to the risk of sex

offenders in their community." Smith, 538 U.S. at 103 (quotation omitted). This factor weighs

against a conclusion that SORNA is punitive.

vii. Proportionalityj_n relation to non-punitive J;JUI.:pose

30

The seventh and final Mendoza-Martinez factor addresses whether SORNA of 1999

"appears excessive in relation to the alternative purpose assigned." Mendoza-Martinez, 372 U.S.

at 169. "The excessiveness inquiry of our ex post facto jurisprudence is not an exercise in

determining whether the legislature has made the best choice possible to address the problem it

seeks to remedy. The question is whether the regulatory means chosen are reasonable in light of

the nonpunitive objective." Smith, 538 U.S. at 105; see also Letalien, 2009 ME 130, ,-r 51, 985

A.2d at 22. "Reasonableness is an objective standard." Letalien, 2009 ME 130, ,-r 51, 985 A.2d

at 22.

The law court treated this factor as neutral in its evaluation of SO RNA of 1999 prior to

the Chapter 570 amendments, finding that the court lacked sufficient information upon which "to

gauge whether the regulatory means chosen-in particular, increasing the registration period

from fifteen years [as it would have been under the prior version of SO RNA] to life without the

possibility of a waiver, and increasing the verification from infrequent notices to quarterly in-

person reporting and fingerprinting at a police station-are reasonable in light of the law's non-

punitive purpose." !d. at ,-r 52, 55, 985 A.2d at 23, 24. In conducting its analysis, the law court

focused upon "the increased burdens resulting from SORNA of 1999's retroactive application to

individuals who were originally subject to a fifteen-year registration period under SORA of 1991

or SORNA of 1995, but who are now subject to lifetime registration and quarterly in-person

verification." !d. at ,-r 51, 985 A.2d at 22-23. The Letalien court balanced the registry's over-

inclusiveness and the stigma that registration imparted even to those registrants who had worked

to successfully rehabilitate themselves, id. at ,-r 53, 985 A.2d at 23-24, with the benefit to public

safety of "ready access to information for a longer period regarding a group of individuals who,

at least as a class of persons, pose a public safety risk," noting, "Even in the absence of

individualized risk assessments of registrants, information concerning the conviction history and

current whereabouts of every sex offender benefits public safety." !d. at ,-r 54, 985 A.2d at 24.

Despite the court's tendency to "lean toward the view that the increased regulatory

scheme of SO RNA of 1999 appears excessive when applied to registered offenders previously"

subject to no registration requirement at all "because there is no consideration of the individual

circumstances or rehabilitation of each offender," see id. at ,-r 55, 985 A.2d at 24, the court cannot

categorically state that SORNA of 1999 is excessive or unreasonable in relation to its purpose of

promoting public safety by collecting and making available already public information regarding

31

,,

sex offense convictions-particularly given the slight reduction in onerousness of the registration

requirements and the possibility of removal from the registry for some offenders brought about

by Chapter 570. Accordingly, the court treats this factor as neutral.

The Letalien court synthesized its review of the Mendoza-Martinez factors as follows:

[T]he retroactive application of the lifetime registration requirement and quarterly

in-person verification procedures of SORNA of 1999 to offenders originally

sentenced subject to SORA of 1991 and SORNA of 1995, without, at a minimum,

affording those offenders any opportunity to ever be relieved of the duty as was

permitted under those laws, is punitive.

Letalien, 2009 ME 130, ~ 62, 985 A.2d at 26. Because of the pains the Law Court took to

distinguish those cases where registrants were subject to some of the punitive elements but not

others, see id. at~ 37 n.9, 985 A.2d at 18 n.9, the court is persuaded that the Law Court found the

combination of burdensome factors to be punitive in effect, rather than each factor individually.

In response to Letalien, the legislature lightened the burden of in-person registration by making

the in-person verification requirements less frequent, and offered classes of offenders an

opportunity to seek removal from the registry. The overall effect of SO RNA of 1999, as

amended, is therefore lighter for the plaintiffs now than it was for Letalien when his case came

before the Law Court, despite the fact that the plaintiffs suffered from greater surprise than

Letalien by their addition to the registry. The law court's observation in Letalien that quarterly,

in-person, lifetime registration constitutes a "substantial disability or restraint on the free

exercise of individual liberty," Letalien, 2009 ME 130, ~58, 985 A.2d at 24-25, remains valid,

but the legislative amendment allowing many registrants to petition for removal from the registry

lightens the impairment of liberty that the Letalien court found.

It is not our role to ask whether the Legislature could achieve its goals through

aliernative means. Indeed, we properly exercise restraint in our review of a

legislative effort to apply retroactively a civil regulatory scheme intended to

address a complex public safety issue. We proceed with care so as not to interfere

with innovative legislative efforts intended to advance the public interest, unless

required otherwise by constitutional mandates.

Letalien, 2009 ME 130, ~56, 985 A.2d at 24.

Whether the plaintiffs are correct as to the meaning of Letahen's holding, only the Law

Court can clarify. It may be that any statutory scheme must, in order to withstand constitutional

scrutiny, provide offenders with an individualized opportunity to be relieved of SO RNA

obligations, particularly when the obligations must be endured by the offender until the day the

32

offender dies. In other words, it may be that the "opportunity" provided to the plaintiffs is an

individualized one that must be provided to each offender, depending on how they have lived

their lives after conviction. Alternatively, the Law Court may find that "opportunity" satisfied

by the Legislature's determinations of classes of offenders who are eligible to be relieved of the

obligations, and others who will never be eligible. SORA of 1991 and SORNA of 1995 provided

opportunities for individual offenders to prove rehabilitation, as did the original version of

Chapter 570-until a fiscal note became affixed to it. See L.D. 1822, Summary (124th Legis.

2010)).

However, the plaintiffs' burden here cannot be underestimated. "A statute is presumed to

be constitutional and the person challenging the constitutionality has the burden of establishing

its infirmity." Letalien, 2009 ME 130, ~ 15, 985 A.2d at 12 (quoting Kenny v. Dep 't of Human

Servs., 1999 ME 158, ~ 7, 740 A.2d 560, 563). "We must assume that the Legislature acted in

accord with constitutional requii·ements if the statute can reasonably be read in such a way,

notwithstanding other possible unconstitutional interpretations ofthe same statute." !d. (quoting

Haskell, 2001 ME 154, ~ 4, 784 A.2d at 7). SORNA of 1999 is intended to be a "civil regulatory

statute." !d. at~ 30, 985 A.2d at 16. "[A] statute that is intended to be civil will be found to be

an ex post facto law only if the 'party challenging the statute provides 'the clearest proof that

'the statutory scheme [is] so punitive either in purpose or effect as to negate [the State's]

intention' to deem it 'civil."' !d. at~ 31, 985 A.2d at 16 (quoting Kansas v. Hendricks, 521 U.S.

346, 361 (1997)).

Because the plaintiffs have not demonstrated by the clearest proof that SORNA of 1999,

as amended, is punitive and therefore a criminalla\v, their assertion that it is an ex post facto law

must fail. Their motion for summary judgment on this ground is DENIED. The state

defendants' motion for summary judgment is GRANTED as to the ex post facto argument.

III. Constitutionality of34-A M.R.S. §11221(1)(G)

The plaintiffs argue that 34-A M.R.S. § 11221(1)(0), allowing the sex offender registry to

obtain "any other information the bureau determines important," might allow police to seek

information that would violate the Fourth, Fifth, or Fourteenth Amendments to the Constitution

of the United States and their analogues under the Maine Constitution, or be void for

33

vagueness. The state defendants counter that the argument is not ripe, as the statute has not been

used to request any information at all, so that there is nothing for the plaintiffs to challenge. 12

The provision to which the plaintiffs object provides: "The bureau shall establish and

maintain a registry of persons required to register pursuant to this subchapter. The registry must

include the following information on each registrant: ... G. Any other information the bureau

determines important." 34-A M.R.S. §11221(1)(0) (2011).

"The void-for-vagueness doctrine incorporated within due process rests on the

assumption that the law must provide reasonable and intelligible standards to guide the future

conduct of individuals and to allow the courts and enforcement officials to effectuate the

legislative intent in applying these laws." Shapiro Bros. Shoe Co., Inc. v. Lewiston-Auburn

Shoeworkers Protective Ass'n, 320 A.2d 247,253 (Me. 1974); see also Gun Owners' Action

League, Inc. v. Swift, 284 F.3d 198, 205 (I st Cir. 2002) ("When citizens cannot determine what

conduct a law proscribes, the law's vagueness may raise constitutional due process concerns.")

"A statute is void for vagueness when it sets guidelines which would force men of general

intelligence to guess at its meaning, leaving them without assurance that their behavior complies

with legal requirements and forcing courts to be uncertain in their interpretation of the

law." Shapiro Bros., 320 A.2d at 253. "Such an unacceptable statute would often be so vague

and indefinite as really to be no rule or standard at all." I d. (quotation omitted). "The principle

underlying the doctrine is that no man shall be held criminally responsible for conduct which he

could not reasonably understand to be proscribed." Gun Owners' Action League, 284 F.3d at

205 (quotation omitted).

Alleging that the Act is unconstitutionally vague, the plaintiffs complain about the

threat of enforcement, but not any particular instances of enforcement. Such facial

challenges raise special justiciability concerns. Particularly relevant here is the

doctrine of ripeness, which "asks whether an injury that has not yet happened is

sufficiently likely to happen" to warrant judicial review. 13A Charles Alan

Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and

Procedure, f3 3531.12, at 50 (2d ed. 1984) (citing Warth v. Seldin, 422 US 490,

499 n.10, 45 L. Ed 2d 343, 95 S Ct. 2197 (1975) (defining ripeness inquiry as

"whether the harm asserted has matured sufficiently to warrant judicial

intervention.")). The requirement of ripeness is "particularly relevant in the

12

The state defendants go on to distinguish the cases upon which the plaintiffs rely (Doe v. Nehraska, 20 I 0 WL

3259366 (D. Neb. 20 I 0); Doe v. Pros., Marion County, Ind., 566 F.Supp.2d 862 (S.D. Ind. 2008); and United States

v. Reese, 92 U.S. 214, 221 (1876)) but the court does not find it necessary to make this distinction in any detail, as

the plaintiffs' pre-enforcement objection to the statute does not raise any concrete case or controversy and is thus not

ripe for judicial consideration. See, e.g.. Gun Owners' Action League, Inc. v. Swift, 284 F.3d 198 (l sl Cir. 2002).

34

context of actions for preenforcement review of statutes," because it "focuses on

the timing of the action." Nave gar, Inc. v. United States, 322 US. App. D. C. 288,

103 F.3d 994, 998 (D.C. Cir. 1997).

!d. "In determining ripeness, we apply a familiar test: 'the question in each case is whether ...

there is a substantial controversy, between parties having adverse legal interests, of sufficient

immediacy and reality to warrant the issuance of a declaratory judgment."' !d. (quoting Lake

Carriers' Assn. v. MacMullan, 406 U.S. 498, 506 (1972)). "Nevertheless, threats of enforcement

of a vague statute can support a facial challenge to a statute when certain conditions are

met." !d. at 206. "To determine whether the threat of enforcement of an allegedly vague statute

is ripe for judicial review, we examine 'the fitness of the issues for judicial decision and the

hardship to the parties of withholding court consideration.'" !d. (quoting Abbott Labs. v.

Gardner, 387 U.S. 136, 149 (1967)).

"'Fitness typically involves subsidiary queries concerning finality, definiteness, and the

extent to which resolution of the challenge depends upon facts that may not yet be sufficiently

developed, whereas hardship typically turns upon whether the challenged action creates a direct

and immediate dilemma for the parties.'" !d. (quoting Rhode Island Ass 'n of Realtors, Inc., v.

Whitehouse, 199 F.3d 26, 33 (1st Cir. 1999)). "In all of the vagueness counts, the main hardship

alleged by the plaintiffs is the threat of prosecution. A threatened prosecution is only immediate

enough to satisfY the hardship prong of the ripeness inquiry when 'the challenged action creates

a 'direct and immediate' dilemma for the parties."' !d. (quoting WR. Grace & Co. v. United

States Envtl. Prot. Agency, 959 F.2d 360, 364 (1st Cir., 1992)).

Such a dilemma exists when threatened prosecution puts the party seeking

preenforcement review betw·een a rock and a hard place-absent the availability

of preenforcement review, [they] must either forego possibly lawful activity

because of [their] weli-founded fear of prosecution, or willfully violate the statute,

thereby subjecting [themselves] to criminal prosecution and punishment.

!d. (quotation omitted).

The plaintiffs' claim fails at this point. There is no threatened prosecution. The plaintiffs

allege that the immediate hardship they suffer is the authority provided to bureau to request

information and publicize it, which "could present Fourth or Fifth Amendment issues." (Reply

Memo. ofMitchell Firm Pis. and Opp. to State Defs. Cross-Mot. for Summ. 1. at 17.) The

bureau has not requested any such information. At the time that the bureau requests information

to which it, arguably, is not constitutionally entitled, then the plaintiffs' pre-enforcement

35

challenge may conceivably be ripe. At this time, when the bureau has not requested any

information to which they are even arguably not entitled, there is no "direct and immediate"

dilemma for the parties. There is no lawful activity they must forgo to avoid prosecution; nor is

there any way in which they could willfully violate the statute and incur prosecution. The

challenge is therefore not ripe for review. 13

Even if this point did not conclude the com1's analysis in favor of the state defendants,

the court would point out the second dimension of the analysis likewise does not support the

plaintiffs' contention. "The fitness component of ripeness addresses whether the factual and

legal dimensions ofthe challenge to the Act are developed enough to permit adjudication of the

plaintiffs' claim." !d. at 207-208. The First Circuit noted in Gun Owners' Action Association

that the statute at issue in that case "empowers an agency of the Commonwealth ... to

promulgate regulations clarifying its meaning and to publish a list of weapons proscribed by the

statute" (id. at208), thereby reducing the vagueness that was the subject of the plaintiffs' attacks

on the statute. Likewise, in this case, the statute allows the bureau to request additional

information that "it detennines important" from registrants; the information will not be collected

in the absence of a statement of what information the bureau finds important, thereby clarifying

the vagueness the plaintiffs find objectionable.

The court cannot find 34-A M.R.S. §11221(1)(G) (2011) unconstitutional at this time, so

the plaintiffs' motion for summary judgment seeking such a judgment is DENIED; the state

defendants' motion for summary judgment on this count is GRANTED.

IV. Equal protection

"The Equal Protection Clause of the Fourteenth Amendment forbids any state from

denying 'to any person within its jurisdiction the equal protection of the laws,' U.S. CONST.

amend. XIV, § I, and requires, generally, that persons similarly situated be treated alike."

Anderson v. Town of Durham, 2006 ME 39, ~ 29, 895 A.2d 944, 953 (citing Plyler v. Doe, 457

13

The plaintiffs' reference to Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999) is unavailing. In that case, the

Sixth Circuit noted, the "statute is written in such a manner that the release of registry infonnation can take place at

any time law enforcement officials have determined that release is necessary to protect the public." Cutshall, 193

F.3d at 472. Here, law enforcement does not have the infonnation at its disposal; the greatest risk to the plaintiffs

that the statute would allow would be for the bureau to request information from the registrants, at which point they

could bring a challenge which would then be ripe.

36

U.S. 202,216, 102 S. Ct. 2382,72 L. Ed. 2d 786 (1982)). Article I,§ 6-A ofthe Maine

Constitution likewise provides, "No person shall be ... denied the equal protection of the laws,

nor be denied the enjoyment of that person's civil rights or be discriminated against in the

exercise thereof." The protections ofthe state and federal constitutional provisions are

coextensive. Town of Frye Island v. State, 2008 ME 27, ~ 14, 940 A.2d 1065, 1069.

If government action that is challenged on equal protection grounds infringes on a

fundamental constitutional right, or involves an inherently suspect classification

such as race, it is subject to analysis under the strict scrutiny standard. Sch.

Admin. Dist. No. I v. Comm'r, Dep't of Educ., 659 A.2d 854, 857 (Me. I995).

Strict scrutiny requires that the challenged action be narrowly tailored to achieve a

compelling governmental interest. See Butler v. Supreme Judicial Court, 61I A.2d

987, 992 (Me. 1992). If the government action does not implicate either a

fundamental right or a suspect class, "different treatment accorded to similarly

situated persons need only be rationally related to a legitimate state interest." Sch.

Admin. Dist. No. I, 659 A.2d at 857. When a statute is reviewed under the rational

basis standard, it bears a strong presumption of validity. See id Under the rational

basis standard, the burden is on the party challenging the government action to

demonstrate that "there exists no fairly conceivable set of facts that could ground

a rational relationship between the challenged classification and the government's

legitimate goals." Eulitt [v. State of Me., Dep 't of Educ., 386 F.3d 344, 356 (1st

Cir. 2004)].

Anderson, 2006 ME 39, ~ 29, 895 A.2d at 953-54.

Sex offenders are not a suspect class. Doe v. A1oore, 410 F.3d 1337, 1346 (11th Cir.

2005) (citing United States v. LeMay, 260 F.3d 1018, 1030 (9th Cir. 2001)). Nor do the various

subclassifications among sex offenders, which the plaintiffs point to as unsustainable because of

their diverging responsibilities and opportunities to petition for removal under SORNA of 1999,

as amended, implicate a suspect class. Therefore, in order to determine whether to apply strict

scrutiny or rational basis review, the court must analyze whether the plaintiffs have pled the

existence of a fundamental right. They do not allege a fundamental right in their equal

protection arguments, but they do so argue in their substantive due process line of reasoning. In

order to avoid disrupting that analysis, the court will leave it under the heading where the

plaintiffs have pled it, but for the purposes of our equal protection analysis, it suffices to state

that the court has not found a fundamental right to be at issue. The court's assignment of rational

basis review to this issue is bolstered by the fact that the Law Court has held, "Only

classifications involving a suspect or quasi-suspect class, or impacting certain fundamental

constitutional rights, are subject to heightened scrutiny. Other classifications, like those

37

presented by SORNA, need only be rationally related to a legitimate government goal." State v.

Haskell, 2001 ME 154, ~ 16 n.l 0, 784 A.2d at 11 n.l 0 (citations omitted). Since "the

government action does not implicate either a fundamental right or a suspect class, different

treatment accorded to similarly situated persons need only be rationally related to a legitimate

state interest." See Anderson, 2006 ME 39, ~ 29, 895 A.2d at 953.

"[R]ational-basis review in equal protection analysis 'is not a license for courts to judge

the wisdom, fairness, or logic of legislative choices."' Heller v. Doe, 509 U.S. 312, 319 (1993)

(quoting FCC v. Beach Commc 'ns, Inc., 508 U.S. 307, 313 (1993)). "For these reasons, a

classification neither involving fundm11ental rights nor proceeding along suspect lines is

accorded a strong presumption of validity." !d. "Such a classification cannot run afoul of the

Equal Protection Clause if there is a rational relationship between the disparity oftreatment and

some legitimate governmental purpose." !d. (citing Nordlinger v. Hahn, 505 U.S. 1, 11 (1992);

[New Orleans v. Dukes, 427 U.S. 297,303 (1976)(per curiam)].

"Further, a legislature that creates these categories need not 'actually articulate at any

time the purpose or rationale supporting its classification."' !d. (quoting Nordlinger, 505 U.S. at

15). See also, e. g., United States Railroad Retirement Bd v. Fritz, 449 US. 166, 179, 66 L. Ed

2d 368, 101 S. Ct. 453 (1980); Allied Stores of Ohio, Inc. v. Bowers, 358 US. 522, 528, 3 L. Ed.

2d 480, 79 S. Ct. 43 7 (1959). "Instead, a classification 'must be upheld against equal protection

challenge if there is any reasonably conceivable state of facts that could provide a rational basis

for the classification."' !d. (quoting Beach Commc 'ns, 508 U.S. at 313. Further, "those

attacking the rationality of the legislative classification have the burden to negative every

conceivable basis which might support it." Beach Commc 'ns, 508 U.S. at 314. And since courts

"never require a legislature to articulate its reasons for enacting a slalule, it is entirely irrelevant

for constitutional purposes whether the conceived reason for the challenged distinction actually

motivated the legislature," and "the absence of legislative facts explaining the distinction on the

record has no significance in rational-basis analysis." !d. at 315 (quotations and citations

omitted).

Because "[a] statute is presumed constitutional, ... and 'the burden is on the one

attacking the legislative arrangement to negative every conceivable basis which might support

it,' whether or not the basis has a foundation in the record," the court looks to the plaintiffs'

arguments to determine whether they have successfully shown that there is absolutely no

38

conceivable basis to suppmi the distinctions the legislature has drawn. Heller, 509 U.S. at 320-

21 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). The plaintiffs

allege "several suspect inequalities," including "the fact of registration vs. non-registration for

the Does previously all treated alike before ch. 570; [and] the difference between ten year and

lifetime registrants; sex offenders generally vs. other perpetrators of heinous crimes." (Reply

Memo. of Mitchell Firm Pis. and Opp. to State Defs. Cross-Mot. for Summ. J. at 18.) They also

point to a submission by their expert, Dr. Brian Rines, which they allege suppmis a finding that

the legislative categories do not predict dangerousness. (Memo. of Mitchell Firm Pis. at 8.) The

plaintiffs' memo also includes a version of their ex post facto argument regarding the

arbitrariness of treating pre-1991 convictions as harshly as or more harshly than those registrants

for whom Letalien provided relief, which argument the court need not address after the extensive

consideration given to both parties' ex post facto arguments above. The plaintiffs also argue that

the law is not narrowly tailored, in that the plaintiffs fall into different categories with no

discernable justification, and that the category into which a registrant falls could easily be a

matter of prosecutorial discretion: "Particularly if all charges relate to a single incident, possibly

repeated, the prosecutor could bargain them down to one to secure a guilty plea. Thus one's duty

to register may devolve to luck or accident." (Memo. of Mitchell Firm Pis. at 9.)

The court can comfortably reject all of the plaintiffs' arguments save the last. However,

his opinion does not "negative every conceivable basis" for the legislative distinctions among

and between registrants. Given the proper deference, almost all of the legislature's distinctions,

including those between sex offenders and other forms of criminals, 14 easily withstand rational

basis review.

As to the argument regarding offenders whose status as lifetime registrants, even after the

modifications of Chapter 570, arose from multiple pre-SORA or SO RNA convictions which may

have arisen from a single incident, however, the comi has serious reservations as to whether the

law would rational basis review. Cf Stale v. Heald, 382 A.2d 290, 301 (Me. 1978) ("It is well

established that a reasonable prosecutorial discretion in the enforcement of criminal laws is

inherent in our criminal justice system ... "). Were any of the plaintiffs participating in this

motion for summary judgment unable to petition for termination of the registration requirements

14

See, e.g., McKune v. Life, 536 U.S. 24, 33 (2002) ("When convicted sex offenders reenter society, they are much

more likely than any other type of offender to be rearrested for a new rape or sexual assault. See Sex Offenses 27;

U.S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (I 997)).

39

because of multiple convictions, which convictions stemmed from the same transaction, that

would potentially present a level of arbitrariness sufficient to provide the extraordinary case on

which a law may not withstand rational basis review. If two identical offenders committed

identical crimes, but one district attorney charged every incident of an interaction separately, for

example, charging for each incident of penetration, or for the sexual contact leading up to that

point, and the other district attorney charged once for the overall occurrence, then the two

offenders would have significantly different possibilities for removal from the registry under

SORNA of 1999, as amended. That difference of registration effect for two identical crimes

might be unsustainable, as it does not bear a rational relationship to the state's legitimate interest

of protecting the public and increasing awareness regarding convicted sex offenders. Because

SORNA of 1999, as amended, does not provide for individualized review of registrants'

dangerousness or even their underlying convictions, there is a the potential for an equal

protection violation under a different case or cases.

However, the plaintiffs have not presented the court with such a case as would implicate

these concerns. While Doe V pled guilty to two counts of unlawful sexual contact in 1993 15 , it

appears that he will be able to petition for termination of his registration requirements once the

required ten-year period following his probation has passed, which the State suggest will be in

2012. 34-A M.R.S. §11202-A(l)(A) (2011). The court agrees with the plaintiffs that it is the

retroactive lifetime quality of the registration requirements that triggers further review (see the

court's analysis of the plaintiffs' claims under Maine's Declaration of Rights, below). The other

plaintiffs' records reveal either that their convictions stemmed from multiple incidents, or their

record reflects other disqualifications that would prevent them from seeking termination of their

registration requirements pursuant to § 11202-A.

Therefore, since neither a fundamental right nor a suspect class is implicated, and since

none ofthe plaintiffs has shown that SORNA of 1999, as amended, has established "different

treatment accorded to similarly situated persons" which is not "rationally related to a legitimate

state interest," see Sch. Admin. Dist. No. I, 659 A.2d at 857, the plaintiffs' equal protection

15

Although SORA of 1991 was in effect at the time, it only required registration for a very small class of crimes,

not including the crimes to which Doe V pled. He was required to register by the 200 I amendments to SO RNA of

1999. See P.L. 2001, ch. 439,13 000-7 (effective Sept. 21, 2001) (codified at 34-A lv!R.S.A./3 11202 (Supp.

200 I)).

40

claims must fail. The plaintiffs' motion for summary judgment is DENIED; the state

defendants' motion for summary judgment is GRANTED.

V. Void for vagueness

The plaintiffs allege that Chapter 570's modifications to the verification procedures for

registrants sentenced between 1982 and 1999, intended to alleviate the quarterly in-person

verification requirements found unconstitutionally punitive in Letalien, 2009 ME 130, ~~ 37, 62,

985 A.2d 4, 18, 26, are void for vagueness and may indeed require more frequent intrusions into

registrants' lives than the statute held unconstitutional in Letalien. The state defendants disagree.

The provisions at issue, 34-A M.R.S. §§11222(4-A)(C) and 11222(4-B)(C), are

substantially similar, save that the provision of sub-section 4-A applies to ten-year registrants

and sub-section 4-B applies to lifetime registrants. The provision states:

In lieu of mailing the completed verification form under paragraph B, the ..

registrant shall take the completed verification form and a current photograph of

the ... registrant to the law enforcement agency having jurisdiction once every 5

years after the anniversary of the ... registrant's initial registration or, if there is a

reason to believe the [offender's] [lifetime registrant's] 16 appearance has changed

significantly, the law enforcement agency having jurisdiction or the bureau may

instruct the ... registrant in writing:

1) To appear in person at the law enforcement agency having jurisdiction

with a current photograph or to allow a photograph to be taken; or

2) If authorized in writing by the law enforcement agency having

jurisdiction for the bureau, to submit a new photograph without appearing

in person.

34-A M.R.S. §§11222(4-A)(C); (4-B)(C) (2011).

The state defendants assert that the plaintiffs lack standing to bring a void for vagueness

challenge to this statute as to § 11221(1 )(G), in that none of the plaintiffs have been subject to

enforcement under this statute or have been required to verify their appearances more frequently

than every five years under the provision cited above. They cite State v. Witham, 2005 ME 79,

~11, 876 A.2d 40, 43 (quotations omitted), for the proposition that, "In response to a void for

vagueness challenge, the sufficiency of the language of [a] statute is properly tested in the

circumstances of the case at bar," and that the sufficiency of this statute thus cannot be tested by

16

34-A M.R.S § 11222(4-A)(C) contains the word ·'offender"; 34-A M.R.S. § 11222(4-B)(C) uses the term "lifetime

registrant."

41

these plaintiffs, as they have not been arrested under it. The court disagrees. Unlike in the case

of§ 11221 (1 )(G), here the plaintiffs' contentions are ripe for review.

The comi notes once again that "threats of enforcement of a vague statute can support a

facial challenge to a statute when certain conditions are met." Gun Owners' Action League, 284

F.3d at 206. "To determine whether the threat of enforcement of an allegedly vague statute is

ripe for judicial review, we examine 'the fitness of the issues for judicial decision and the

hardship to the parties of withholding court consideration."' !d. (quoting Abbott Labs. v.

Gardner, 387 U.S. 136, 149 (1967)). "'Fitness typically involves subsidiary queries concerning

finality, definiteness, and the extent to which resolution of the challenge depends upon facts that

may not yet be sufficiently developed, whereas hardship typically turns upon whether the

challenged action creates a direct and immediate dilemma for the parties.'" !d. (quoting Rhode

Island Ass 'n of Realtors, Inc., v. Whitehouse, 199 F.3d 26, 33 (1st Cir. 1999)).

Unlike the plaintiffs' challenge to the provision granting the bureau authority to request

additional information it deems necessary, which objection was based upon the risk of

prosecution in case of noncompliance with potentially unconstitutional demands by the bureau,

here, the plaintiffs' allegations of hardship are based upon the statute's grant to law enforcement

of the power to require frequent in-person verification. The court did not have any evidence of

what theoretical information requests permitted by § 11221 (1 )(G) might be contemplated; this

court noted that the seeking of constitutionally inappropriate information might trigger review

provisions. In contrast to that uncertainty, §11222(4-A)(C) and (4-B)(C) do state the powers

granted to law enforcement, namely, to require registrants to submit to in-person verification

procedures upon a reasonable belief that the registrant's appearance has significantly

changed. Also unlike the theoretical information requests under $11221 (1 )(G), in-person

verification every ninety days has already been held unconstitutionally punitive for registrants

sentenced between 1982 and 1999 in the absence of an opportunity to seek removal from the

registry. See Letalien, 2009 ME 130, ~~37, 62, 985 A.2d 4, 18, 26. The court thus turns to the

merits of the void-for-vagueness analysis.

"The Due Process Clause of the Fifth Amendment to the United States Constitution and

Article I, section 6-A of the .Maine Constitution require that criminal defendants be given 'fair

notice of the standard of conduct to which they can be held accountable."' State v. Witham, 2005

ME 79, ,f7, 876 A.2d 40, 42 (quoting State v. Weeks, 2000 ME 171, ,f7, 76 I A.2d 44, 46)

42

(brackets omitted). "To satisfy due process, 'a penal statute must define the criminal offense [1]

with sufficient definiteness that ordinary people can understand what conduct is prohibited and

[2] in a manner that does not encourage arbitrary and discriminatory enforcement.'" Skilling v.

United States,_ U.S._,_, 130 S. Ct. 2896,2927-28, 177 L. Ed. 2d 619,656 (quoting

Kolender v. Lawson, 461 U.S. 352,357, 103 S. Ct. 1855,75 L. Ed. 2d 903 (1983)) (brackets

omitted). "A statute is unconstitutionally vague when it fails to define the criminal offense with

sufficient definiteness that ordinary people can understand what conduct is prohibited and in a

manner that does not encourage arbitrary and discriminatory enforcement." Witham, 2005 ME

79, ~7, 876 A.2d at 42 (quotations omitted). "A statute may be void for vagueness when people

of common intelligence must guess at its meaning." !d.

The plaintiffs' challenge thus appears to target the second half of the vagueness analysis,

arguing that the statute may lead to "arbitrary and discriminatory enforcement" and potentially

frequent in-person verification of law-abiding registrants.

However, the court notes that "[i]n examining the sufficiency of statutory language,

'objective quantification, mathematical certainty, and absolute precision are not required."' !d.

(quoting Town of Baldwin v. Carter, 2002 ME 52, ~7 n.2, 794 A.2d 62, 66). "In light of the

fundamental precept that we will, if possible, construe statutes 'so as to avoid a danger of

unconstitutionality, ... legislation should not be held invalid on the ground of uncertainty if

susceptible of any reasonable construction that will support it."' !d. (quoting State v. Davenport,

326 A.2d 1, 5-6 (Me. 1974)) (brackets omitted).

In light of the requirement that the court avoid invalidating a statute as unconstitutional as

long as the statute is "susceptible of any reasonable construction that will support it" Witham,

2005 ME 79, ,-r7, 876 A.2d at 42 (quotations omitted), the court is unpersuaded by the plaintiffs'

asse1iion that the statute is unconstitutionally vague because it fails to clarify the "reason to

believe," and who might have the reason, how he or she might report it, or to where. Rather, the

court finds that the plain language of the statute charges the "law enforcement agency having

jurisdiction or the bureau" with determining whether the evidence provided, by tip or otherwise,

constitutes "reason to believe" that the registrant's "appearance has changed significantly," in

which case that law enforcement agency or the bureau may instruct the registrant to provide

evidence of his or her current appearance, whether in person or by sending an updated

photograph. 34-A M.R.S. §§11222(4-A)(C); (4-B)(C).

43

"[R]easonable grounds to believe ... must depend upon the totality of the circumstances

and include consideration of not only the nature and specificity of available information but also

the credibility ofthe source ofthat information and the basis of the source's knowledge." In re

Trever !, 2009 ME 59, ~24, 973 A.2d 752, 759 (quotation omitted) (discussing "reason to

believe" in the context of the Indian Child Welfare Act of 1978); see also State v. Vaughan, 2009

ME 63, ~~11-12, 974 A.2d 930, 933-34 (admitting evidence that the arresting "officer had an

objective, reasonable belief, under the totality of the circumstances," that the defendant was in

violation of the law, and providing that even an anonymous tip may be a reliable basis for an

officer's reasonable belief if the officer corroborates the tip through verifying "details such as the

physical description and location ofthe suspect") (quotation omitted). See also Terry v. Ohio,

392 U.S. 1, 27 (1968) (allowing "stop and frisk" based on law enforcement officer's reasonable

belief of danger); cf Kolender v. Lawson, 461 U.S. 352, 360-61 (1983) (comparing objective

standard of Terry with unconstitutionally vague statutory provision which would allow police to

detain a person pending the person's submission of "credible and reliable" identification to the

officer's satisfaction).

Law enforcement and related agencies in Maine are frequently entrusted with decision-

making under the "reason to believe" or "reasonable belief' standard. See, e.g., 4 M.R.S. § 960

(20 11) ("Whenever the Attorney General has reason to believe that a person in the State has

engaged in or is engaging in activities that violate this section, the Attorney General may initiate

an action in the Superior Court to enforce this section."); 5 M.R.S. §4660-A (2011) ("Whenever

a law enforcement officerhas reason to believe that a person has been a victim of harassment,

the officer shall immediately use all reasonable means to prevent further harassment"); 17-A

M.R.S. §303 (2011) ("For purposes of this subsection, 'reasonable belief a child has been taken,

retained or enticed in violation of this section' includes, but is not limited to, a determination by

a law enforcement officer, based on the officer's review of the terms of a certified copy of the

most recent co uti decree granting custody of the child, that the parent who is exercising control

over the child is not the person authorized to have custody under terms of the decree."); 19-A

M.R.S. § 2203 (20 11) (permitting the Department of Health and Human Services to issue an

order to seize and sell real property in order to satisfy a support lien, which carries the same

effect as a writ of execution from the District Co uti or the Superior Court, as long as the

department "know[s] or ha[s] reason to believe the obligor has a substantial ownership interest in

44

the property identified in the order"); 22 M.R.S. §2159 (20 11) ("Whenever a duly authorized

agent of the Commissioner of Agriculture, Food and Rural Resources finds or has reason to

believe that any food is adulterated, or so misbranded as to be dangerous or fraudulent, within

the meaning of this subchapter, he may issue an order ... "); 22 M.R.S. § 2519-A (20 11 ); 25

M.R.S. § 3501 (2011) ("This chapter shall apply to all personal property of which possession is

transferred to a police department or other law enforcement agency of the State or any political

subdivision thereof, under circumstances supporting a reasonable belief that such property was

abandoned, lost or stolen, or otherwise illegally possessed ... "); 24-A M.R.S. § 2101 (2011) ("If

the superintendent has reason to believe that any insurer or other person is acting in violation of

this section or section 404, the superintendent shall commence proceedings in accordance with

sections 12-A and 404."); 26 M.R.S. § 777 (2011) ("Whenever there is reason to believe that a

work permit was improperly signed, the director, deputy director or agent shall notify the local

superintendent of schools of the place in which the certificate was signed."); 35-A M.R.S. § 3203

(2011) ("Ifthe commission has reason to believe that any competitive electricity provider or

transmission and distribution utility has violated any provision of law for which criminal

prosecution is provided and would be in order or any antitrust law of this State or the United

States, the commission shall notify the Attorney General. The Attorney General shall promptly

institute any actions or proceedings the Attorney General considers appropriate.").

The statutory provision charging the law enforcement agency with jurisdiction over the

registrant or the bureau itself with verifying the registrant's appearance if there is reason to

believe his or her appearance has changed thus meets the constitutional due process requirement

of '"fair notice of the standard of conduct to which they can be held accountable.'" State v.

Weeks, 2000 ME 171, ,7, 761 A.2d 44,46 (quoting United States v. Robinson, 137 F.3d 652,

653 (1st Cir. 1998)). The plaintiffs do not challenge the public policy underlying this

provision-to ensure that those seeking to identify convicted offenders have access to accurate

depictions ofthem. The legislature's limitation of the verification requirement to those

appearance changes which are "significant" both serves to support that public policy, in that it

ensures that a registrant's photo will be updated when his or her appearance has changed to the

extent that he or she would be difficult to recognize from the former photo, and serves as a

limitation against arbitrary enforcement, requiring registrants to verify their appearances based

on minimal changes. The court therefore finds that the statute is sustainable against a vagueness

45

challenge as it "'define[s] the criminal offense with sufficient definiteness that ordinary people

can understand what conduct is prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement."' Weeks, 2000 ME 171, ~ 7, 761 A.2d 44, 46 (quoting Kolender v.

Lawson, 461 U.S. at 357). The plaintiffs' motion for summary judgment to the contrary is

therefore DENIED, while the state defendants motion for summary judgment on this count is

GRANTED.

VI. Procedural due process

The plaintiffs assert that the registration requirements of SO RNA of 1999, as an1ended,

violate their procedural due process rights because they lacked "notice of the issues, an

opportunity to be heard, the right to introduce evidence and present witnesses, the right the

respond to claims and evidence, and an impartial fact-finder" prior to their placement on the

registry. See In re Chelsea C., 2005 ME 105, ~16, 884 A.2d 97, 102 (listing requirements of due

process where significant rights are at stake).

This question has been settled by the United States Supreme Court in Connecticut

Department ofPublic Safety v. Doe, 538 U.S. 1 (2003). There, the Court held that, "even

assuming, arguendo, that [the registrant] has been deprived of a liberty interest, due process does

not entitle him to a hearing to establish a fact that is not material under the Connecticut statute,"

and that "the fact that [the registrant] seeks to prove- that he is not currently dangerous- is of

no consequence under Connecticut's [sex offender registration and notification] Law," because

"the law's requirements turn on an offender's conviction alone- a fact that a convicted offender

has already had a procedurally safeguarded opportunity to contest." Conn. Dep 't of Pub. Safety,

538 U.S. at 7. Because Maine's constitutional due process protections are coextensive with

those of the federal constitution, see, e.g., Botting v. Dep 't of Behavioral & Developmental

Servs., 2003 ME 152, ~23, 838 A.2d 1168, 1176, this is dispositive ofthe court's analysis.

The plaintiffs' attempts to argue that additional process is due because SORNA of 1999,

as amended, implies that registrants are currently dangerous is unavailing. They cite State v.

Briggs, 199 P.3d 935, 946 (Utah 2008) for the proposition that an implication of cunent

dangerousness requires a due process hearing-but in fact, that case supports the court's analysis

that no such process is due. In Briggs, the court ruled:

As to Briggs's procedural due process argument, we hold that the provisions of

the registration statute requiring him to register and requiring the DOC to publish

46

information related to his prior convictions, curr-ent address, appearance, and

other similar information do not violate his right to procedural due process ....

However, we hold that the provision in the registration statute that requires the

DOC to publish his primary and secondary targets, implying that he is currently

dangerous, violates his right to procedural due process unless the DOC provides

him with notice and an opportunity to be heard as to whether he is currently

dangerous.

Briggs, 199 P.3d at 938. This case supports the distinction that many courts have made,

including the United States Supreme Comi in Connecticut Department of Public Safety, between

statutes which require registration based solely upon the fact of conviction, and those which

contain a finding of dangerousness. See, e.g., Montana v. Samples, 198 P.3d 803, 808 (Mont.

2008) (distinguishing Connecticut Department of Public Safety because "[i]n Montana, facts

other than conviction are used to make the designation, and the designation leads to varying

requirements for an offender"); State v. Guidry, 96 P.3d 242, 251-52 (Haw. 2004) ("The

Supreme Court's due process analysis highlights a seeming distinction between Connecticut's

registration statute and the Hawai'i registration statute."); Noble v. Bd. of Parole & Post-Prison

Supervision, 964 P.2d 990, 995-96 (Or. 1998) (finding that determination that a person is a

predatory sex offender implicates a liberty interest, reasoning that when an agency gathers and

synthesizes evidence in making such a determination the interest of the person to be labeled goes

beyond mere reputation and includes an interest in avoiding ostracism, loss of employment

opportunities, and likely verbal or even physical harassment). 17 The plaintiffs' attempt to

distinguish Connecticut Department ofPublic Safety on the ground that the statutory purpose of

SO RNA of 1999, as amended, implies a finding of dangerousness on the part of its registrants

because the statute provides, "The purpose of this chapter is to protect the public from potentially

dangerous registrants and offenders by enhancing access to infonnation concerning those

registrants and offenders," 34-A M.R.S. §11201 (2011), has already been addressed and struck

17

The plaintiffs' emphasis on the necessity of a hearing for lifetime registrants appears to be an implicit reference to

State v. Guidry, 96 P.3d 242 (Haw. 2004), which held "that the lifetime registration component of the Hawai'i sex

offender registration statute implicates a protected liberty interest under the Hawai'i State Constitution, article I,

section V and requires that minimum requirements of due process-notice and the opportunity to be heard-be

afforded to convicted sex offenders." !d. at 244. The court noted that it had "provided broader due process

protection under the IIawai 'i Constitution" id. at 251, and that due process required the opportunity to present

evidence "material to a state's statutory scheme and we independently hold so under the Hawai'i

Constitution." !d. The Guid1y analysis therefore docs not guide this court, as the Law Court has explicitly held that

the Maine Constitution does not afford greater due process protections than the Constitution of the United

States. See, e.g., State v. Mit/ikin, 2010 ME I, ~16, 985 A.2d 1152, 1157-58.

47

down by the Sixth Circuit in Fullmer v. Michigan Department ofState Police, 360 F.3d 579 (6th

Cir. 2004). In that case,

the plaintiff point[ ed] to a provision in the Michigan registration act to the effect

that "the legislature has determined that a person who has been convicted of

committing an offense covered by this act poses a potential serious menace and

danger to the health, safety, morals, and welfare of the people" and that "the

registration requirements of this act are intended to provide law enforcement and

the people an effective means to monitor those persons who pose such a potential

danger." Mich. Camp. Laws B 28.721a (2003). He contend[ed] that this language

in the statute, even though it did not appear in the information presented on the

website, deprive[ d] him of his "constitutionally protected interest in not being

falsely labeled as a dangerous sex offender" and [would be] sufficient to

invalidate the act despite the holding in Connecticut Department of Public Safety

v. Doe.

Fullmer, 360 F.3d at 582 (ellipses omitted). The Sixth Circuit rejected this argument, noting,

"Regardless of the language in the statute, the information on the registry's website makes it

clear to anyone accessing the registry that all sex offenders convicted after a certain date are

listed, without exception," and that "there is nothing on the website to indicate that the state has

made an individual determination as to a registrant's dangerousness." !d. Likewise, there is

nothing on Maine's Sex Offender Registry website that indicates that the state has made an

individual determination of a registrant's dangerousness. On the contrary, the disclaimer on the

website, highlighted in yellow in a text box above the button that a reader would click to search

the registry, reads as follows:

The information provided on this web site is intended to be used for public safety

and community awareness purposes only. The Maine State Bureau of

Identification has not considered or assessed the specific risk of re-offense with

regard to any individual prior to his or her inclusion on this web site and has made

no detem1ination that any individual included on this web site is currently

dangerous. Individuals included on the web site are included solely by virtue of

their conviction record and Maine state law. The primary purpose of providing

this information is to make the information easily available and accessible, not to

warn ahout any specific individual. Use of this information to threaten, intimidate,

or harass any registrant or any other person may result in criminal prosecution.

Maine Sex Offender Registry Online Search Service, Me. State Police web site (visited July 31,

2011). Although the statute recognizes that the registrants are "potentially dangerous," cf Conn.

Dep 't of Puh. Sa_fety, 538 U.S. at 4 ("Sex offenders are a serious threat in this Nation ... and

when convicted sex offenders reenter society, they are much more likely than any other type of

offender to be re-arrested for a new rape or sex assault") (quotations and citations omitted), the

48

public searching the registry is clearly informed that registration is not based on a finding of

dangerousness, or any criteria apmi from conviction.

Because dangerousness is not a consideration under Maine's statute, SORNA of 1999, as

amended, does not fall afoul of procedural due process protections. The plaintiffs' motion for

summary judgment on this ground is accordingly DENIED, while the state defendants' motion is

GRANTED.

VII. Substantive due process

The plaintiffs also assert that the application to them of SO RNA of 1999, as amended,

violates their rights to substantive due process, a question specifically left open in Connecticut

Department of Public Safety v. Doe. They argue that privacy is a fundamental right, which

extends, in Maine, to the acquisition and possession of property and the pursuit of

happiness. Because SORNA of 1999, as amended, infringes on these rights through its

interference with the plaintiffs' employability and is not narrowly tailored, they assert that it fails

strict scrutiny and is unconstitutional.

The Law Court has established a three-part test to determine whether a statute is invalid

because it infringes upon due process rights. 18

The requirements of due process in the exercise of the State's police power are as

follows:

1. The object of the exercise must be to provide for the public welfare.

2. The legislative means employed must be appropriate to the achievement

of the ends sought.

3. The manner of exercising the power must not be unduly arbitrary or

capncwus.

In order to successfully challenge the constitutionality of a statute on due

process grounds, a party "must establish the complete absence of any state

of facts that would support the need for its enactment."

Aseptic Packaging Council v. State, 637 A.2d 457, 461 (Me. 1994) (quoting State v. Eaton, 577

A.2d 1162, 1165-66 (Me. 1990)) (brackets omitted); see also State v. Haskell, 2008 ME 82, ~~ 5-

6, 955 A.2d 737, 739.

1. Object ofthe exercise

18

Article I, Section 6-A of the Maine Constitution provides in pertinent part, "No person shall be deprived of life,

liberty or property without due process of law .... "

49

In applying this test, the court first examines the objective of SO RNA of 1999. "The

purpose of [SORNA of 1999) is to protect the public from potentially dangerous registrants and

offenders by enhancing access to information concerning those registrants and offenders." 34-A

M.R.S. § 11201 (2009). The first requirement of the due process test therefore supports the

statute's validity.

2. Legislative means em12loxecl

In evaluating the second factor of the test, the propriety of the legislative means in light

of the ends sought and the process alleged to be due, the court considers federal jurisprudence

under the Fourteenth Amendment to the U.S. Constitution. 19 "[F)ederal and Maine due process

rights are coextensive." State v. Milliken, 2010 M

This text is long and has been trimmed here. Open the source document for the complete record.