Allaire v. State of Maine

STATE OF MAINE SUPERIOR COURT

KENNEBEC, 55 CIVIL ACTION

DOCKET NO. CV-05-259

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SHAWN M. ALLAIRE

Plaintiff

v, DECISION AND ORDER

STATE OF MAINE

And

ANNE H. JORDAN

Commissioner, Maine Department of Public Safety

Defendants

This case is before the court on cross-motions for summary judgment. This order takes

up the issues upon which the court had reserved ruling pending the outcome of State v. Letalien,

2009 ME 130, 985 A.2d 4, and the resulting legislative amendments to the Sex Offender

Registration and Notification Act ("SaRNA"), 34-A M.R.S. §§ 11201-256 (2009) amended by

P,L. 2010, ch. 570 (emergency, effective March 30, 2010).

I. Facts

The parties have stipulated to the following facts, At all times relevant to this matter, the

plaintiff was a Maine resident. (Stip.S.M.F. ~ 1.) On June 26, 1999, the plaintiff was working at

the Sunglass Hut in a mall in Newington, New Hampshire, when a young female, B.P., stopped

by to visit him. (Stip.S,M.F. ~ 5.) In the dressing room of a store in the mall, the plaintiff and

B.P. engaged in "heavy petting," during which the plaintiff digitally penetrated B.P.'s vagina.

(Stip,S,M,F. ~~ 7, 8,) The plaintiff did not know B.P. 's age at the time. (Stip.S.M.F. ~ 11.) He

learned that B.P. was fourteen years old approximately one week after their dressing room

encounter, when he received a telephone call from a detective with the Newington police

department. (Stip,S.M,F, ~ 13,)

On September 8, 1999, the plaintiff was indicted by a New Hampshire grand jury for

felonious sexual assault, (Stip.S,M,F.. ~~ 14, 16.) The indictment alleged in pertinent part that

the plaintiff "knowingly, .. engaged in sexual penetration with B.P., (d.o,b, 12/26/84) . , . who

was at the time 13 years of age or older and under 16 years of age ... specifically, by causing an

intrusion of his finger into the genital opening of B.P.'s body ... ." (Stip.S.M.F. ~ 17.) On

October 7, 1999, represented by counsel, the plaintiff waived formal arraignment and entered a

plea of "not guilty." (Stip.S.M.F. ~ 19.) On August II, 2000, on the advice of his attorney, the

plaintitT entered an open plea of guilty to felonious sexual assault in the Rockingham County

Superior Court. (Stip.S.M.F. ~~ 26-28.) As a result of his guilty plea, the plaintiff was sentenced

to twelve months in the Rockingham County House of Corrections and two years' probation.

(Stip.S.M.F. ~ 29.) The plaintiff testified that his criminal defense attorney never told him that

he would be required to register as a lifetime registrant under New Hampshire's sex offender

notification act. (Stip.S.M.F. ~r 31.)

The plaintiff first learned that he was required to register as a lifetime registrant under

New Hampshire's sex offender notification act the day he was released from the Rockingham

County House of Corrections. (Stip.S.M.F. ~ 32.) He then returned to Maine, where the State of

Maine notified him that he was required to register as a lifetime registrant under Maine's

SaRNA because his New Hampshire conviction for felonious sexual assault made him a lifetime

registrant under New Hampshire law. (Stip.S.M.F. ~~ 33, 34, 36.) The plaintiff then completed

and mailed a "Notice of Duty to Register" which identified him as a "Lifetime Registrant" under

SaRNA of 1999, although he had previously registered in Maine as a ten-year registrant.

(Stip.S.M.F. ~I 39, 40.) A State of New Hampshire "Offender Registration Information" form

dated January 25, 200 I, states that the plaintiff must register annually for life, and identifies his

qualifying offense as "Aggravated Felonious Sexual Assault," as well as the "Felonious Sexual

Assault" of which the plaintiff testified he was convicted. (Stip.S.M.F. ~~ 41-43.) The plaintiff

alleges that the registration requirement negatively affects his employability (Stip.S.M.F. ~~ 45,

47) and that he is frightened by the killing of two people listed on Maine's Sex Offender

Registry Website (Stip.S.M.F. ~48).

II. Analysis

A. Arguments and Statutory Scheme

The plaintiffs motion for summary judgment asserts that the State of Maine lacks the

power to require the plaintiff to register pursuant to SaRNA for the following reasons: (I)

application of SaRNA to the plaintiff runs afoul of the prohibition on ex post facto laws, see

U.S. Const. art. 1. § 10, cl. 1 and Me. Const. art. I, § 11; (2) application of SaRNA to the

plaintiff violates the prohibition against cruel and unusual punishment, see U.S. Const. amend.

2

VIII and Me. Const. art. I, § 9; (3) application of SORNA to the plaintiff violates the prohibition

against double jeopardy; see U.S. Const. amend. V and Me. Const. art. I, § 8; and (4) application

of SORNA to the plaintiff violates the plaintiffs due process rights under the Maine and United

States constitutions. In response to Letalien and the subsequent statutory amendments, the

plaintiff argues that SORNA remains a violation of ex post facto constitutional provisions, and

also offers two cases from other jurisdictions in support of his argument that he need not register

in Maine because his offense, committed in New Hampshire, is not "substantially similar" to a

registry-eligible offense in Maine. The defendants object to the plaintiffs motion and cross­

move for summary judgment in their favor. J

The specific provision of the statute to which the plaintiff objects is encoded at 34-A

M.R.S. § lI202(2)(a) (2009), which explains that SORNA applies to "A person sentenced in

another jurisdiction as an adult or as a juvenile sentenced as an adult ... [a]t any time of an

offense that requires registration in the jurisdiction of conviction pursuant to that jurisdiction's

sex offender registration laws or that would have required registration had the person remained

there ...." Under New Hampshire law, a conviction for Felonious Sexual Assault (N.H. R.S.A.

632-A:3 (Supp. 2009)) would render the plaintiff a "Tier II offender" (N.H. RS.A. 651-B:I, IX

(Supp. 2009)); a conviction for Aggravated Felonious Sexual Assault (N.H. RS.A. 632-A:2

(Supp. 2009)) would render him a "Tier III offender." N.H. RS.A. 651-B:I, X (Supp. 2009).

"All tier II or tier III offenders shall be registered for life." N.H. RS.A. 651-B:6, I (Supp. 2009).

Accordingly, the plaintiff is subject to lifetime registration in New Hampshire. He contends that

Maine's statute imposing the same registration status in Maine based upon his New Hampshire

registration status is unconstitutional.

Maine is one of sixteen U.S. jurisdictions to adopt an external approach to registration of

foreign convictions for sex offenses. Wayne A. Logan, Horizontal Federalism in an Age of

Criminal Justice Interconnectedness, 154 U. PA. L. REV. 257, 287 (2005). "[E]xternal approach

states require registration if the foreign jurisdiction where the conviction occurred required

registration, regardless of whether it would warrant registration in the forum." Id.; see Comm.

Amend. A to L.D. 1433, No. H-997 (l22nd Legis. 2005) (describing amendment as changing

"the application section to honor other jurisdictions' determinations with respect to the obligation

1 This court previously rejected the defendants' argument that the FuJI Faith and Credit clause of the federal

constitution requires Maine to recognize and enforce New Hampshire's classification of the plaintiffs sex offender

status. See Allaire v. State, KENSC-CV-2005-259 (Me. Super. Ct., Ken. Cty., Jun. 25, 2009) (Murphy, J.).

3

of offenders to register"). This statutory structure, granting comity to foreign jurisdictions'

judgments, has been consistently upheld. See, e.g., Flowers v. Arkansas, 213 S. W.3d 648, 651

(Ark. App. 2005) ("Arkansas law plainly provides that one who is convicted of a crime in

another state and is required to register in that state as a sex offender is also required to register

in Arkansas. . . . [I]t is simply immaterial whether Arkansas would punish" the underlying

offense in the same way as the foreign jurisdiction that convicted the registrant); New York v.

Arotin, 796 N.Y.S.2d 743, 745 (N.Y. App. Div. 2005) ("The administrative manner in which a

state chooses to exercise the registration requirements for a sex offender who moves into its

jurisdiction falls squarely within the power of that state and is not governed by the procedures in

effect in the state where the offender previously resided."). For this reason, the cases that the

plaintiff cites, State v. Howe, 212 P.3d 565 (Wash. App. Div. 2 2009) and Ex Parte Harbin, 297

S.W.3d. 283 (Tex. Crim. App. 2009) are inapplicable: Washington and Texas have adopted an

"internal" approach, "requiring that newly arrived ex-offenders register in the forum only if the

foreign predicate comes within the ambit of registerable offenses specified by the forum."

Wayne A. Logan, Horizontal Federalism in an Age of Criminal Justice Interconnectedness, 154

U. PA. L. REV. 257, 284 (2005). The fact that the legislatures of Washington and Texas have

limited their states' registration requirements in this way does not affect this court's analysis of

the constitutionality of the Maine legislature's "external approach."

For the purposes of this analysis only, the court accepts the parties' representation that

the incident underlying the plaintiff's conviction for Felonious Sexual Assault does not represent

a crime in Maine. The plaintiff's motion therefore requires the court to determine whether

Maine's policy of giving comity to a sister state's sexual offender registration requirements is

constitutionally impermissible as an ex post facto law, as cruel and unusual punishment, as

double jeopardy, or as violating the plaintiff's due process rights, bearing in mind that "[a]

statute is presumed to be constitutional and the person challenging the constitutionality has the

burden of establishing its infirmity." State v. Cosgro, 2008 ME 64, ~ 2,945 A.2d 1221, 1222

(quoting State v. Haskell, 200 I ME 154, ~ 3, 784 A.2d 4, 7).

B. Ex Post Facto Law

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

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

Legislature shall pass no ... ex post facto law." Me. Const. art. 1, § II. "[T]he ex post facto

4

clauses of the Maine and United States Constitutions are interpreted similarly and are

coextensive." Letalien, 2009 ME 130, ~ 25, 985 A.2d 4, 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. Jd. at ~117, 985 A,2d at 12 (quoting Collins v. Youngblood, 497 U.S. 37,42

(1990)).

The court notes that Allaire's charged conduct occurred in June 1999, before SORNA of

1999 became effective on September 18, 1999, though that statute was the governing law at the

time that Allaire pleaded guilty in August 2000. See 4 P.L. 1999, ch. 437, § 2 (effective Sept.

18, 1999) (codified at 34-A M.R.S.A, §§ 11201-11252 (Pamph. 1999)). However, the fact that

his crime occurred before the effective date of the statute does not automatically render the

statute unconstitutional as an ex post facto law (see Haskell, 200 I ME 154, ~~ 6, 22, 784 A,2d at

8, 15); nor does the fact that the defendant's plea occurred after the effective date of the statute

foreclose his argument that SORNA is unconstitutionally ex post facto, as the statute has been

subject to numerous legislative amendments which have generally increased the burden on

registrants. See Doe v. District Allorney, 2007 ME 139, ~ 28, 932 A,2d 552, 561, overruled in

part by Letalien, 2009 ME 130, 985 A,2d 4 ("We conclude that Haskell does not declare for all

time that SORNA is immune from an ex post facto challenge. It is conceivable that a challenger

can demonstrate that, through amendments, the Legislature changed the character and effects of

SORNA from civil to criminal."). Indeed, the law court held in Letalien that the amended

SORNA of 1999 placed unconstitutional ex post facto obligations upon registrants originally

sentenced under SORA of 1991 or SORNA of 1995. Letalien, 2009 ME 130, ~~ 62-63, 985

A.2d 4, 26. In response to Letalien, the legislature issued "An Act To Further Amend the Sex

Offender Registration and Notification Act of 1999," Public Laws 2010, Chapter 570, on an

emergency basis, effective March 30, 2010.

Allaire contends that SORNA of 1999, as amended, remains unconstitutional as an ex

post facto law. Following the thorough and careful examination of SORNA of 1999 undertaken

by the law court in Letalien, this court will determine whether SORNA of 1999, as amended, is

civil or criminal based upon on the portions of the statute that Letalien held unconstitutional, and

review them in light of Allaire's claims stemming from his unusual situation (but see Letalien.

5

2009 ME 130, ~ 63, 985 A.2d at 26 ("For ex post facto purposes, SaRNA of 1999 is properly

evaluated on its face, and not in relation to how it has been applied against any individuals")),

and in light of the 2010 statutory amendments.

"If SaRNA measures are deemed civil rather than criminal in nature, however, 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

one label or the other. Even in those cases where the legislature has indicated an

intention to establish a civil penalty, we have inquired further whether the statutory

scheme was so punitive either in purpose or effect as to transform what was clearly

intended as a civil remedy into a criminal penalty. In making this latter

determination, the factors listed in Kennedy v. Mendoza-Martinez, 372 u.s. 144,

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

incl uding: (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 deterrence"; (5)

"whether the behavior to which it applies is already a crime"; (6) "whether an

alternative purpose to which it may rationally be connected is assignable for it"; and

(7) "whether it appears excessive in relation to the alternative purpose assigned." It

is important to note, however, that "these factors must be considered in relation to

the statute on its face," id at 169, 83 S. Ct. at 568, and only the clearest proof will

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

civil remedy into a criminal penalty.

1d. at '18,784 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.'" 1d. at ~ 9,784 A.2d at 9 (quoting United States v. Ursery, 518 U.S. 267,290,

116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996)).

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

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

entirely outside of the Criminal Code." Ietalien, 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, ~ 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.

6

Given that the law court's analysis is clear on this factor, Allaire's 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.

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

U.S. at 168), the law court has determined 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 130, ~ 37,985 A.2d at 18. The amendments to SORNA affect

in-person registration requirements for those sentenced between January 1, 1982 and September

18, 1999, but the requirements for those sentenced after September 18, 1999, including Allaire,

have not changed. P.L. 2010, ch. 570, § 2 (emergency, effective March 30, 2010). However, the

Letalien court distinguished the applicable registration scheme from cases where the law 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 (citing Doe v. Pataki, 120 F.3d 1263, 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 of ten years); Doe v. Pori!z, 142 N.J. 1, 662 A.2d 367, 378 (N.J.

1995) (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")).

Public Laws 2010, Chapter 570 adds an exception to the registration requirement of 34-A

M.R.S. § 11202-A (2009), which provides that a person

is not required to register under this chapter if that person submits to the bureau,

in a form to be determined by the bureau, documentation to establish . . . the

person was sentenced in another jurisdiction, was finally discharged from the

correctional system at least 10 years prior to submitting documentation to the

bureau under this section and has been in compliance with the registration duties

as a resident required under subchapter 2 since September 12,2009.

P.L. 2010. ch. 570, § 1 (emergency, effective March 30, 2010). Because Allaire will be eligible

to petition for removal from the sex offender registry, his situation is of the type that Letalien

7

distinguished. It is not at all clear that the statute, as modified, presents an affirmative disability

or restraint for a registrant in Allaire's position.

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 court held that that "Internet posting pursuant to SORNA of 1999 is not punitive

in purpose or etTect." Letalien, 2009 ME 130, ~ 38, 985 A.2d at 19. The law court then

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

SORNA 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

curtailed this exercise of judicial discretion. Jd. at ~~ 42-43, 985 A.2d at 20. Because Allaire

and others similarly situated were sentenced after the effective date of SORNA of 1999, this

concern is not implicated. Application of the law to Allaire and those similarly situated has not

been historically regarded as a punishment.

"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).

"The fourth factor requires consideration of whether SORNA of 1999 promotes

retribution and deterrence, the traditional aims of punishment." Jd. at ,-r 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, ,-r 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 SORNA of 1999' s

disparate treatment categorizing some offenders as lifetime registrants and others as ten-year

8

registrants, or on which to determine "whether Maine's requirement of lifetime registration is

reasonably related to the danger of recidivism." ld.

This court considers that the legislative provisions of Public Laws, 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 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, like Allaire, 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 any other convictions before or since for a

Class A sex offense or sexually violent offense. P.L. 2010, ch. 570, § 1 (emergency, effective

March 30, 2010). 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. These alterations to the statute

suggest that it is now less potentially punitive than it was at the time that the law court declared it

to be neutral; therefore, this factor now weighs in favor of SORNA of 1999's not being punitive.

The fifth Mendoza-Martinez factor requires the court to consider whether the behavior to

which SORNA of 1999 applies is already a crime. 372 U.S. at 168.

Because registration under SORJ'JA of 1999 only applies to offenders who were

convicted of specified crimes, does not arise based on individualized assessment

of an offender's risk of recidivism, and cannot be waived based on proof that an

offender poses little or no risk, SORJ'JA of 1999 applies exclusively to behavior

that is already a crime. It is punitive in effect in this respect.

9

Letalien, 2009 ME 130, ~ 48, 985 A.2d at 22 (citing Smith, 538 U.S. at 112-13 (Stevens, 1.,

dissenting); Doe v. Alaska, 189 P.3d 999, 1015 (Alaska 2008)).

The court next considers the sixth Mendoza-Martinez factor, whether SaRNA of 1999

has a rational connection to a non-punitive purpose. 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 Corr. Ctr., 253 F.3d 870, 873 (5th Cir.

2001) (stating that '''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. '''); 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."). "There is no doubt that SaRNA 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.

E 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." ld. SaRNA advances these safety concerns "by alerting the

public to the risk of sex offenders in their community." Smith, 538 U.S. at 103. This factor

weighs against a conclusion that SORNA is punitive.

The seventh and final Mendoza-Martinez factor addresses whether SORNA of 1999

"appears excessive in relation to the alternative purpose assigned." 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, ~I 51, 985 A.2d

at 22. "Reasonableness is an objective standard." Letalien, 2009 ME 130, ~I 51, 985 A.2d at 22.

10

The law court treated this factor as neutral in its evaluation of SORNA 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 SORNA] 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." Id. at ~ 52, 55, 985 A2d 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." Id. at ~ 51,985 A2d at 22-23.

In the current circumstance, these concerns are no longer applicable. This court does not

make a ruling on the excessiveness of SORNA of 1999, as amended, as applied retroactively to

those sentenced under SORA of 1991 or SORNA of 1995, as that is not the case with which we

are presented. The current case consists of a registrant sentenced in New Hampshire, who

became subject to SORNA of 1999 when he resumed his Maine resident status after conviction

of a registrable sex offense under New Hampshire law. Analyzing the amended statute, as the

court must, on its face (Mendoza-Martinez, 372 U.S. at 169), a statutory scheme emerges where

many registrants whose convictions are unique and more than ten years old may petition to be

removed from the registry. See P.L. 2010, ch. 570, § 1 (emergency, effective March 30, 2010).

Other registrants are ineligible for removal, including those with multiple sexually violent

offense convictions or multiple convictions for Class A sex offenses. Id. On the record before

this court, noting the limited application the court considers today, the court cannot conclude that

SORNA of 1999, as amended, is excessive in relation to its purpose of promoting public safety

by collecting and making available already public information regarding sex offense convictions.

Synthesizing its review of the Mendoza-Martinez factors, the law court held, in Letalien,

that the 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.

11

2009 ME 130, ~ 62, 985 A.2d at 26. The concerns that led to the holding that SORNA of 1999

was established as punitive by the clearest proof, and therefore an ex post facto law, are not

applicable to Allaire. The law court stated explicitly that its holding in Letalien was not

applicable to registrants who were not sentenced under SORA of 1991 or SORNA of 1995:

Because our decision is based to a substantial degree on the unique ... history of

Maine's sex offender registration laws and sentencing practices, we do not decide

today the extent to which it applies to persons sentenced in jurisdictions other

than Maine on or after June 30, 1992, and before September 18, 1999, who are

required to register in Maine in accordance with SORNA of 1999.

Letalien, 2009 ME 130, '1 62 n. 17, 985 A.2d at 26. Allaire was not sentenced pursuant to either

law, but to the law of New Hampshire, and fell within the ambit of SORNA of 1999 based upon

his New Hampshire registration obligations. Allaire's case is thus more analogous to Haskell,

where the law court "determined that the retroactive application of SORNA of 1999 to a crime

that was committed on August 8, 1999, did not violate the ex post facto prohibition," because

Haskell, like Allaire, committed the crime before the effective date of SORNA of 1999, but was

sentenced after the effective date. Haskell, 2001 ME 154, '1'1 6, 22, 784 A.2d at 8, 16. See also

Letalien, 2009 ME 130, ~ 59, 985 A.2d at 25 (distinguishing Haskell, 2001 ME 154, '1~ 6, 22,

784 A.2d at 8, 16).

The law court's observation in Letalien that quarterly, 10 person, lifetime registration

constitutes a "substantial disability or restraint on the free exercise of individual liberty" remains

valid, but the legislative amendment allowing registrants to petition for removal from the registry

lightens the impairment of liberty that the Letalien court found. Letalien, 2009 ME 130, ~ 58,

985 A.2d at 24-25.

It is not our role to ask whether the Legislature could achieve its goals through

alternative 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, '1 56, 985 A.2d 24.

Because Allaire has not demonstrated by the clearest proof that SORNA of 1999, as

amended, is punitive and therefore a criminal law, his assertion that it is an ex post facto law

must fail. His motion for summary judgment on this ground is DENIED. The defendants'

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motion for summary judgment is GRANTED, as to persons convicted after the effective date of

SORNA of 1999.

C. Cruel and Unusual Punishment

The Eighth Amendment to the Constitution of the United States provides, "Excessive bail

shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.',z

Article I, Section 9 of the Maine Constitution similarly provides, "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."

Because the court has determined that the registration requirements of SaRNA of 1999, as

amended, are not punitive as applied to persons sentenced after the statute's effective date, these

constitutional provisions are not implicated. See, e.g., Thun v. State of Maine, 2009 U.S. Dist.

LEXIS 66670 at *53 (D. Me. July 28, 2009) ("Thun has no viable Eighth Amendment challenge

to his registration ... requirements.") (citing Cutshall v. Sundquist, 193 F.3d 466, 477 (6th Cif.

1999) ("We have already concluded that the Act does not impose punishment; it is regulatory in

nature. Therefore, it does not violate the Eighth Amendment's prohibition on cruel and unusual

punishment.")); see also Johnson v. Terhune, 184 Fed. Appx. 622, 624 (9th Cif. 2006)

("Requiring appellant to register as a sex offender did not violate the Ex Post Facto Clause,

Double Jeopardy Clause or Cruel and Unusual Punishment Clause because sex offender

registration is not punishment. "); Snyder v. State, 912 P.2d 1127, 1131 (Wyo. 1996) ("Our

determination that registration is not punishment is dispositive of Snyder's claim that it is cruel

and unusual punishment . . . ."). Allaire's motion for summary judgment on this ground is

accordingly DENIED. The defendants' motion for summary judgment is GRANTED, as to

persons convicted after the effective date of SaRNA of 1999.

D. Double Jeopardy

'"The double jeopardy proVIsIOns of the Maine and United States constitutions are

coextensi ve and protect a defendant in a criminal matter, inter alia, from multiple punishments

for the same offense." State v. Smith, 2002 ME 177, '12,816 A.2d 57,58; see also Hudson v.

United States, 522 U.S. 93, 98-99 (1997) (explaining that the Federal Fifth Amendment Double

2 Allaire's original motion for summary judgment cites the Fifth Amendment to the United States Constitution on

this point.

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Jeopardy Clause "protects only against imposition of multiple criminal punishments for the same

offense, . . . and then only when such occurs in successive proceedings") (quotations and

citations omitted). Because Allaire is subject to a regulatory scheme, rather than a criminal

punishment, under SORNA of 1999, as amended, his claims must fail. See also Haskell, 2001

ME 154"r 22, n. 12,784 A.2d at 14-15 (collecting cases rejecting challenges to other states' sex

offender registration laws on double jeopardy and other grounds, holding that registration

requirement was not punishment). Allaire's motion for summary judgment on this ground is

likewise DENIED, and the defendants' motion for summary judgment GRANTED.

E. Due Process

Allaire asserts that the application of SORNA of 1999, as amended, to him violates his

right to due process. He argues, specifically, that it lacks substantive due process because it

violates his fundamental rights to privacy and to "live wherever he wants within the four comers

of the State of Maine." (PI. Mot. Summ. J. 11.)

The law court has established a three-part test to determine whether a statute is invalid

because it infringes upon due process rights. 3

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

capricious.

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. EalOn, 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.

In applying this test, the court first examines the objective of SORNA 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

3 Article 1, 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 ...."

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M.R.S. § 11201 (2009). The first requirement of the due process test therefore supports the

statute's validity.

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 values federal jurisprudence under

the Fourteenth Amendment to the U.S. Constitution. 4 "[F]ederal and Maine due process rights

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

Our established method of substantive-due-process analysis has two primary

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

protects those fundamental rights and liberties which are, objectively, deeply

rooted in this Nation's history and tradition, and implicit in the concept of ordered

liberty, such that neither liberty nor justice would exist if they were sacrificed.

Second, we have required in substantive-due-process cases a careful description

of the asserted fundamental liberty interest.

Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (quotations and citations omitted).

"[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." Jd. at 721 (quotations, emphasis and ellipses omitted). Thus, "by

establishing a threshold requirement-that a challenged state action implicate a fundamental

right-before requiring more than a reasonable relation to a legitimate state interest to justify the

[legislative] action, it avoids the need for complex balancing of competing interests in every

case." Jd. at 722.

The court's review of whether the legislative means are appropriate to the achievement of

the ends sought accordingly depends upon whether the asserted right is a fundamental right, in

which case the legislation requires more than a "reasonable relation to a legitimate state interest"

to withstand a due process challenge. Allaire asserts that SaRNA of 1999, as amended,

infringes upon two fundamental rights-his right to privacy and his right to travel within the

state of Maine.

The fundamental rights that have been upheld by the Supreme Court as "liberty" interests

protected by the Due Process Clause include, "in addition to the specific freedoms protected by

the Bill of Rights," id. at 720, "the rights to marry, to have children, to direct the education and

upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to

4 Tht: Fourteenth Amendmt:nt to the U.S. Constitution provides in pertinent part, "No State shall make or enforce

any law which shall abridge the privileges or immunities ofcitizens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due process of law, , .."

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abortion." 1d. (citing Loving v. Virginia, 388 U.S. 1 (1967), Skinner v. Oklahoma ex rei.

Williamson. 316 U.S. 535 (1942), Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of

Sisters, 268 U.S. 510 (1925), Griswoldv. Connecticut, 381 U.S. 479 (1965), Eisenstadt v. Baird.

405 U.S. 438 (1972), Rochin v. California, 342 U.S. 165 (1952), Planned Parenthood oj'

Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992)). Courts must take care in interpreting

assertions of fundamental rights; the Supreme Court has "always been reluctant to expand the

concept of substantive due process because guideposts for responsible decisionmaking in this

unchartered area are scarce and open-ended." 1d. (quotations omitted). "By extending

constitutional protection to an asserted right or liberty interest, we, to a great extent, place the

matter outside the arena of public debate and legislative action." 1d. "We must therefore

exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty

protected by the Due Process Clause be subtly transformed into the policy preferences of the

members of this Court," rather than the elected legislature. 1d. (quotations and citations omitted).

SORNA of 1999, as amended, provides the following information on the internet:

1) The registrant's name, date of birth and photograph;

2) The registrant's city or town of domicile and residence;

3) The registrant's place of employment and college or school being attended, if

applicable, and the corresponding address and location; and

4) The statutory citation and name of the offense for which the registrant was

convicted.

34-A M.R.S. § 11221,9, A. Upon written request containing the name and date of birth ofa

registrant, the following information is accessible:

1) The registrant's name, aliases, date of birth, sex, race, height, weight, eye

color, mailing address and physical location of domicile and residence;

2) The registrant's place of employment and college or school being attended, if

applicable, and the corresponding address and location;

3) A description of the offense for which the registrant was convicted, the date of

conviction and the sentence imposed; and

4) The registrant's photograph.

34-A M.R.S. § 11221, 9, B. The information that SORNA of 1999 makes public is therefore

information intended to inform the public about the potential risk posed by the registrant and to

allow the public the information necessary to recognize the registrant. The statute does not

reveal information in which courts have recognized a potential privacy interest, such as financial

or medical information. Compare Borucki v. Ryan, 827 F.2d 836, 840-49 (1st Cir. 1987)

(reviewing cases and noting circuit split regarding right to privacy in psychiatric records) with

16

Cutshall v. Sundquist, 193 F.3d 466, 480-81 (6th Cir. 1999) (rejecting a constitutional right to

non-disclosure of private information).

Allaire cites no authority for his proposition that disclosure of a matter of public record,

the fact of his conviction, and of his identifying characteristics in order to render that status

meaningful to the public, constitutes the infringement of a fundamental right. He cites a Maine

Freedom of Access Act case, Blethan Maine Newspapers, Inc. v. State, for the proposition that

"an individual has an interest in avoiding disclosure of personal matters," as well as "an interest

in controlling the dissemination of personal information." 2005 ME 56, ~ 15, 871 A.2d 523,

529. This precedent does not dictate the court's inquiry, as the context is distinguishable, and an

"interest" is far from a "fundamental right." Moreover, in the context of sex offender

registration laws, persuasive precedent exists suggesting that the disclosure of information

sufficient for the public to identify a convicted sex offender does not implicate any fundamental

right to privacy on the part of the registrant. See A.A. v. New Jersey, 341 F.3d 206, 211-13 (3rd

Cir. 2003) ("this case begins with the understanding and, indeed, the requirement that what

might otherwise be private information be made public ... it is clear that a registrant's right to

privacy in his or her home address gives way to the State's compelling interest to prevent sex

offenses"); see also Smith, 538 U.S. at 101 (acknowledging the potential adverse effect of

disclosure, but explaining that "consequences flow not from the Act's registration and

dissemination provisions, but from the fact of conviction, already a matter of public record. The

State makes the facts underlying the offenses and the resulting convictions accessible so

members of the public can take the precautions they deem necessary before dealing with the

registrant ...").

Given the Supreme Court's warmng against expanding the universe of "fundamental

rights" and the absence of precedent supporting a registrant's right to privacy in his or her

identi(ying information, as well as SORNA of 1999's limitation of disclosed information to that

which members of the public would need in order to take precautions, the court concludes that

Allaire has no fundamental liberty interest in nondisclosure of his registry information.

His next asserted fundamental right is the right "to live wherever he wants within the four

corners of the State of Maine," a right which he contends is unconstitutionally limited by local

restrictions prohibiting sex offenders from residing near schools or other places where children

17

might gather. (PI. Mot. Sum. 1. 11.) As for SaRNA of 1999, Allaire asserts that it IS

unconstitutional as the triggering mechanism for these local restrictions.

A fundamental constitutional right to live wherever one wants does not, and cannot, exist.

If there were such a right, zoning laws creating non-residential zones would be constitutionally

invalid if ever a person wished to reside in that area. Eminent domain would carry no meaning,

because the government's right to the land would be on par with, or secondary to, an individual's

fundamental liberty interest in living where he or she wishes. This is neither practicable nor the

state of the law. The court therefore interprets Allaire's contention as an argument that SaRNA

of 1999 unconstitutionally limits his fundamental right to travel, a constitutional right that has

been legally recognized.

The "right to travel" ... embraces at least three different components. It protects

the right of a citizen of one State to enter and to leave another State, the right to

be treated as a welcome visitor rather than an unfriendly alien when temporarily

present in the second State, and, for those travelers who elect to become

permanent residents, the right to be treated like other citizens of that State.

Saenz v. Roe, 526 U.S. 489, 500 (1999). '.'The cases applying the right to travel doctrine involve

laws which distinguished between newcomers to a state, who were denied fundamental rights,

and residents of longer duration, who were accorded such rights." Salibra v. Supreme Court of

Ohio, 730 F.2d 1059, 1064-65 (6th Cir. 1984). "The right to travel doctrine has been applied

only to cases involving the denial of 'vital benefits,' 'fundamental rights' or 'basic necessity of

life.'" ld. at 1065 (quoting Califano v. Torres, 435 U.S. 1,4 (1978); City ofAkron v. Bell, 660

F.2d 166, 169 (6th Cir. 1981); Hayes v. Board o.fRegents, 495 F.2d 1326,1328 (6th Cir. 1974)).

"Fundamental rights" include, for example, the right to vote. See id. Because the time-limited

posting of Allaire's identifying information and conviction on the registry for public protection

does not deny him vital benefits, fundamental rights, or basic necessities of life, nor any

inequality in treatment while in Maine based upon his recent residency status, his argument

under the right to travel must fail.

Because Allaire has not established that SaRNA of 1999, as amended, infringes upon

any recognized fundamental right or liberty interest, the legislative means employed will be

considered appropriate to the achievement of the ends sought as long as they are reasonably

related to a legitimate state interest. See Aseptic Packaging, 637 A.2d at 461; Glucksberg, 521

U.S. at 720-21. The interest of public safety is reasonably related to the statute's provisions

18

making available information about convicted sex offenders in order that families and the public

may take appropriate precautions. The second factor of the test therefore supports upholding the

statute.

The third and ±inal factor of the due process inquiry is whether the statute's

implementation is arbitrary and capricious. "[A] court, in performing a rational-basis analysis, is

not limited to the face of the statute and may go beyond its face in determining whether any

conceivable state of facts exists to support a statute." Aseptic Packaging, 637 A.2d at 460. "It is

for the legislature, not the courts, to judge the wisdom of legislative action and to evaluate

legislative facts." Id. "The State has no burden to come forward with such conceivable state of

facts, but rather, it is the contestant who retains the burden of proving that no conceivable state

of facts exists. " Id. (quotations omitted).

Allaire agrees that SORNA has been properly upheld on rational basis review in the past,

but asserts that it should now be overturned because, as his conviction requiring registration was

not a crime in Maine, he poses no threat and need not be on the registry. This argument does not

meet the requirement of illustrating that no conceivable set of facts exists to support upholding

SORNA of 1999, as amended.

Because Allaire has not met his burden, his motion for summary judgment asserting that

SORNA of 1999, as amended, should be overturned on due process grounds is DENIED. The

defendants' motion for summary judgment is GRANTED as to persons convicted after the

effective date of SaRNA of 1999.

The entry shall be:

Allaire's Motion for Summary Judgment is denied; the Defendants' Motion for Summary

Judgment is granted.

This Order shall be noted on the Docket as incorporated by reference pursuant to Rule

79(a) of the Maine Rules of Civil Procedure.

M/ MICHAEL URPHY,

SUPERIOR COURT JUSTICE

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