# Doe v. State > Alaska Supreme Court · July 25, 2008 · 189 P.3d 999 URL: https://www.frixlaw.com/law-library/cases/9796083 ## Case - **Full name:** John DOE, a Pseudonym, Appellant, v. STATE of Alaska, Appellee - **Court:** Alaska Supreme Court - **Decided:** July 25, 2008 - **Citations:** 189 P.3d 999; 2008 Alas. LEXIS 109; 2008 WL 2853565 - **Precedential status:** Published - **Opinion:** Dissent by Fabe - **Judges:** Fabe, Matthews, Eastaugh, Bryner, Carpeneti - **Cited by:** 95 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9796083 ## How later opinions describe it (automated extraction) - explaining that provisions of the Alaska and United States Constitutions "bar the legislature from enacting any law that '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… - concluding in a two-to-one decision that ASO-RA's registration, disclosure, and dissemination provisions violate the protection against ex post facto laws afforded by the Alaska Constitution as it applies to defendants who committed their crimes before the legislature enacted … - concluding that the Alaska SORA is punishment that violated the state constitution’s ex post facto clause because the act neither meaningfully distinguished between classes of sex offenses on the basis of risk nor gave offenders any opportunity to demonstrate their lack of risk - concluding that quarterly in-person verification is an affirmative disability or restraint that "treats offenders not much differently than the state treats probationers and parolees subject to continued state supervision" - concluding that the United States Supreme Court’s holding that Alaska’s registration statute did not violate the federal Ex Post Facto Clause did not mean that the same law was valid under Alaska’s Ex Post Facto Clause ## Opinion text FABE, Chief Justice, dissenting. I disagree with the court's conclusion that ASORA violates the ex post facto clause of the Alaska Constitution. The court maintains that its "reliance on the multifactor effects test is consistent with our past use of federal law in resolving state ex post facto claims." But our past decisions have firmly established a practice of interpreting the Alaska ex post facto clause "no differently" than its federal counterpart. 1 The court now purportedly applies that federal test to the facts of this case: "[the intent-effects test provides an appropriate analytical framework here." But the court's decision directly conflicts with the United States Supreme Court's application of the same test to the same statute. 2 As we have concluded in the past, this case presents "no reason for us to interpret Alaska's constitutional provision differently." 3 The court defends its expansion of Alaska's constitutional protections against ex post fac-to litigation as "consistent with what the federal standards appear to have been before 2003, when the Supreme Court decided Smith." But the Smith Court announced no intention to depart from the standards that it had previously created or to alter the Mendoza-Martines multifactor effects test. The Smith Court reasoned that its "examination of [ASORA's] effects leads to the determination that [Doe] cannot show, much less by the clearest proof, that the effects of the law negate Alaska's intention to establish a civil regulatory scheme." 4 Despite this court's implication that the United States Supreme Court misapplied the Federal Ex Post Facto Clause, today's decision actually broadens the protections of Alaska's ex post facto clause beyond that of the Federal Constitution. Thus, the court must justify its departure from our established practice of interpreting the Alaska and federal ex post facto clauses as coextensive. Today's decision, however, fails to do so. *1020 Of course, "we have the authority and, when necessary, duty to construe the provisions of the Alaska Constitution to provide greater protections than those arising out of the identical federal clauses." For example, we have devised our own sliding-seale test to implement "Alaska's more stringent equal protection standard," 5 which we have held "protects Alaskans' right to non-discriminatory treatment more robustly than does the federal equal protection clause." 6 We have held that the state constitution entitles Alaskans to a jury trial where the Federal Constitution does not. 7 And we have interpreted the Alaska Constitution's mandate that "[nljo person shall be put in jeopardy twice for the same offense" 8 to extend beyond the Federal Constitution's double jeopardy protections. 9 But where we have expanded Alaskans' constitutional protections beyond federally required minimums, we have recognized a "duty to move forward in those areas of constitutional progress which we view as necessary to the development of a civilized way of life in Alaska. 10 We have never recognized broader protections under the Alaska Constitution's ex post facto clause as compared to the Federal Constitution's. 11 In Danks v. State, we examined an ex post facto challenge to a habitual offender statute. 12 As in this case, the United States Supreme Court had rejected a challenge to a similar statute under the federal clause. 13 Accordingly, we held that the Supreme Court decision disposed of Danks's federal claim, and we saw "no reason for us to interpret Alaska's constitutional provision differently." 14 In State v. Anthony, we rejected challenges under the state and federal ex post facto clauses to a law that deprived certain felons of receiving the annual permanent fund dividend. 15 Our analysis did not differentiate between the two clauses and noted the parties' agreement "that the ex post facto prohibition of the Alaska Constitution is the same as that of the United States Constitution." 16 As in this case, State v. Creekpaum 17 involved a sex offender. Creekpaum was charged with sexual assault over five years after the alleged assault took place. At the time that Creekpaum allegedly committed his offense, a five-year limitations period applied. But the legislature subsequently extended that period. In rejecting Creekp-aum's challenge to the new limitations period under the state and federal ex post facto clauses, we relied almost exclusively on United States Supreme Court precedents in similar cases and once again declined "to construe our parallel ex post facto prohibition-article I, section 15-differently from the federal provision." 18 Finally, in State v. Coon, we rejected a claim that our adoption of new evidentiary rules for the admission of scientific evidence violated "federal and state constitutional pro *1021 hibitions on ex post facto legislation." 19 Our decision in Coon followed from an analysis of federal precedent and our explanation that "Iwle construe our state prohibition no differently than the federal prohibition." 20 These decisions leave no doubt that our practice of treating the state and federal ex post facto clauses coextensively is settled precedent. The court's decision today, recognizing broader protections under the Alaska Constitution, casts a pall of uncertainty upon our earlier decisions. The court nevertheless declares that its decision "does not overrule or depend on overruling any prior decision of this court, nor does it depart from any past holding of this court." This assertion ignores the plain language of our previous holdings and alters the doctrine of stare decisis beyond recognition. We have explained that "a prior decision may be abandoned because of 'changed conditions' if 'related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, [or] facts have so changed[,] or come to be seen so differently, as to have robbed the old rule of significant application." 21 Perhaps one could view the ongoing development of federal case law, and the United States Supreme Court's Smith decision in particular, as a "changed condition." But the court makes no attempt to frame its decision in such a manner. Instead, the court fails to recognize that today's decision is indeed "inconsistent with the analytical approach we have approved for deciding ex post facto claims under the Alaska Constitution." Because the court has decided to overrule our settled practice of construing the Alaska Constitution's ex post facto clause "no differently than the federal prohibition," 22 it must meet the higher threshold raised by the principle of stare decisis. In my opinion, that threshold has not been met. Stare decisis demands that we adhere to past precedent unless "we are clearly convinced the rule was originally erroneous or is no longer sound because of changed conditions, and that more good than harm would result from a departure from precedent." 23 Assuming arguer-do that the Supreme Court's decision in Smith upsets our reliance on Federal Ex Post Facto Clause jurisprudence, I remain unconvineed that departing from our precedents to invalidate ASORA would result in more good than harm. Alaska is not alone in passing legislation that responds to this public safety threat. 24 In 1994 Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 25 which conditions federal funding to assist law enforcement on established guidelines for state sex offender registration programs. Alaska's sex offender registration program forms one small part of a nationwide comprehensive regulatory program. Nothing in the court's analysis gives reason to depart from our established practice of interpreting Alaska's ex post facto clause to mirror the protections of the United States Constitution. Our adherence to this practice has not proceeded automatically, and it has reflected our regard for the judgments of the United States Supreme Court in this area. Accordingly, I respectfully dissent. . State v. Coon, 974 P.2d 386, 391-92 (Alaska 1999). . See Smith v. Doe, 538 U.S. 84 , 123 S.Ct. 1140 , 155 L.Ed.2d 164 (2003). . Danks v. State, 619 P.2d 720, 722 (Alaska 1980). . Smith, 538 U.S. at 105 , 123 S.Ct. 1140 . . Alaska Civil Liberties Union v. State, 122 P.3d 781, 787 (Alaska 2005) (Article I, section 1 of the Alaska Constitution requires "equal treatment of those similarly situated."). . State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc., 28 P.3d 904, 909 (Alaska 2001). . Baker v. City of Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970). . Alaska Const. art. I, § 9. . Whitton v. State, 479 P.2d 302, 309-10 (Alaska 1970). . Baker, 471 P.2d at 401 . . See State v. Coon, 974 P.2d 386, 391-92 (Alaska 1999); State v. Anthony, 816 P.2d 1377, 1378 (Alaska 1991); State v. Creekpaum, 753 P.2d 1139, 1144 (Alaska 1988); Danks, 619 P.2d at 722 . The Alaska Court of Appeals has employed the same analysis for both the Alaska and federal ex post facto clauses. Patterson v. State, 985 P.2d 1007, 1011-13 (Alaska App.1999), overruled on other grounds by Doe v. State, 92 P.3d 398 (Alaska 2004). . 619 P.2d at 722 . . See Gryger v. Burke, 334 U.S. 728 , 68 S.Ct. 1256 , 92 L.Ed. 1683 (1948). . Danks, 619 P.2d at 722 . . 816 P.2d at 1377-79 . . Id. at 1378, n. 1. . 753 P.2d at 1140 . . Id. at 1143 . . 974 P.2d at 391 . . Id. at 391-92 . . Pratt & Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173, 1176 (Alaska 1993) (quoting Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 855 , 112 S.Ct. 2791 , 120 L.Ed.2d 674 (1992). . Coon, 974 P.2d at 391-92 . . State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986) (quoting State v. Souter, 606 P.2d 399, 400 (Alaska 1980), overruled on other grounds by Dunlop, 721 P.2d at 610 (internal quotation marks omitted)). . By 1996 legislators in every state of the union had enacted laws to regulate sex offenders after their release. Doe, 538 U.S. at 89 , 123 S.Ct. 1140 ; Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 4 , 123 S.Ct. 1160 , 155 L.Ed.2d 98 (2003). . See Doe, 538 U.S. at 89, 123 S.Ct. 1140 (discussing 42 U.S.C. § 14071 ). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9796083. Public record. Not legal advice.