State v. Mount, 317 Mont. 481, 78 P.3d 829, 2003 MT 275 (Mont. 10/07/2003)

[1] IN THE SUPREME COURT OF THE STATE OF MONTANA

[2] No. 02-020

[3] 317 Mont. 481, 78 P.3d 829, 2003 MT 275, 2003

[4] October 07, 2003

[5] STATE OF MONTANA,
PLAINTIFF AND APPELLANT,
v.
ROBERT S. MOUNT,
DEFENDANT AND RESPONDENT.

[6] APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, Cause No. DC 2000-255. The Honorable John W. Larson, Judge presiding.

[7] Counsel OF Record:

[8] For Appellant:

[9] Mike McGrath, Montana Attorney General, Ali Sheppard, Assistant Montana Attorney General (argued), Helena, Montana; Fred VanValkenburg, Missoula County Attorney, Dale Mrkich, Deputy Missoula County Attorney, Missoula, Montana.

[10] For Respondent:

[11] William Boggs, Missoula, Montana (argued).

[12] The opinion of the court was delivered by: Justice James C. Nelson

[13] Argued: October 17, 2002

[14] Submitted: March 13, 2003

[15] ¶1 The State of Montana (State) appeals the judgment entered by the Fourth Judicial District Court, Missoula County, granting Robert S. Mount's (Mount) motion to dismiss the charge of failing to register as a sex offender. We reverse and order the District Court to reinstate the charge.

[16] ¶2 We address the following issues on appeal:

[17] ¶3 1. Did the District Court err in finding that the registration and disclosure requirements of the Sexual or Violent Offender Registration Act constituted punishment for purposes of the ex post facto clause of the United States and Montana Constitutions?

[18] ¶4 2. Do the registration and disclosure requirements of the Sexual or Violent Offender Registration Act deprive offenders of any "rights" within Article II, Section 28, of the Montana Constitution, or § 46-18-801, MCA?

[19] FACTUAL AND PROCEDURAL BACKGROUND

[20] ¶5 In 1989, Montana enacted the Sexual Offender Registration Act. Referred to popularly as Megan's Law, the Sexual Offender Registration Act mandates that convicted sex offenders register as sex offenders in their communities, at which time their communities are notified of the offenders' presence.

[21] ¶6 Since its enactment, the Montana Legislature (Legislature) has twice amended the Sexual Offender Registration Act. The effective date of the first amendment was October 1, 1995. The effective date of the second amendment was October 1, 1997.

[22] ¶7 In 1995, the Legislature amended the title of the Sexual Offender Registration Act to the Sexual or Violent Offender Registration Act (the Act). The Legislature also amended the Act to include "or violent" after every instance where the word "sexual" occurred in the Act. Further, the Legislature set out specific registration and disclosure requirements to which an offender must adhere upon release. Neither the Act, nor the 1995 amendments contained retroactive provisions.

[23] ¶8 In 1997, the Legislature again amended the Act to make its registration and disclosure requirements retroactive to "sexual offenders who are sentenced or who are in the custody or under the supervision of the department of corrections on or after July 1, 1989."

[24] ¶9 On October 24, 1984, Mount was convicted of sexual intercourse without consent, a felony offense. He was sentenced to the Montana State Prison for 20 years.

[25] ¶10 On May 10, 1996, Mount received a final discharge from the Montana State Prison, and on May 19, 1996, he registered as a sex offender in Missoula County.

[26] ¶11 On June 16, 2000, Mount was charged with failing to register as a sex offender under § 46-23-507, MCA. The charge arose from Mount's admissions that he had not updated his registration since May 19, 1996, when he initially registered. Specifically, § 46-23-507, MCA, states: "[a] sexual or violent offender who knowingly fails to register, verify registration, or keep registration current . . . may be sentenced to a term of imprisonment of not more than 5 years or may be fined not more than $10,000, or both."

[27] ¶12 On October 17, 2001, Mount moved for dismissal of the charge of failing to register as a sex offender. The District Court granted his motion on November 14, 2001. The District Court found that the Act, as applied to Mount, was ex post facto because it subjected him to enhanced punishment based on his prior conviction. Such enhanced punishment, the District Court concluded, was in violation of the constitutional prohibition against ex post facto laws.

[28] ¶13 The State now appeals the District Court's judgment.

[29] ¶14 Additional facts will be discussed where they become applicable in the following analysis.

[30] STANDARD OF REVIEW

[31] ¶15 In criminal cases, we review a District Court's grant or denial of a motion to dismiss de novo as a question of law. State v. Beanblossom , 2002 MT 351, ¶ 9, 313 Mont. 394, ¶ 9, 61 P.3d 165, ¶ 9.

[32] DISCUSSION

[33] A. EX POST FACTO JURISPRUDENCE

[34] ¶16 We begin by setting out the historical development of ex post facto jurisprudence in Montana, and we then clarify the test to be applied henceforth.

[35] ¶17 The ex post facto clause is found at Article II, Section 31 of the 1972 Montana Constitution. This clause states: "No ex post facto law nor any law impairing the obligation of contracts, or making any irrevocable grant of special privileges, franchises, or immunities, shall be passed by the legislature." Art. II, Sec. 31, Mont. Const. This clause was derived from Article III, Section 11, of the 1889 Montana Constitution and in large measure parallels Article I, Section 10, of the United States Constitution. LARRY M. ELISON & FRITZ SNYDER, THE MONTANA STATE CONSTITUTION 83 (G. Alan Tarr series ed., Greenwood Press) (2001).

[36] ¶18 We have applied Montana's ex post facto clause in a number of cases. In so doing, we have adopted one test in criminal cases and another in civil cases.

[37] ¶19 As to criminal cases, three slightly different tests and analyses have emerged over time. In State v. Ellsworth (1963), 142 Mont. 14, 380 P.2d 886, we adopted the test set forth by the United State Supreme Court in Calder v. Bull (1798), 3 U.S. 386, 1 L.Ed 648. This test defined ex post facto legislation as:

[38] [1] every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action; or

[39] [2] every law that aggravates a crime, or makes it greater than it was, when committed; or

[40] [3] every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. Ellsworth , 142 Mont. at 19, 380 P.2d at 888 (quoting Calder , 3 U.S. at 390).

[41] ¶20 We followed the Ellsworth test for several years. See State v. Maldonado (1978), 176 Mont. 322, 328, 578 P.2d 296, 300; State v. Gone (1978), 179 Mont. 271, 280, 587 P.2d 1291, 1297; State v. Azure (1978), 179 Mont. 281, 282, 587 P.2d 1297, 1298; State v. Coleman (1979), 185 Mont. 299, 314, 605 P.2d 1000, 1010, cert denied , 446 U.S. 970, 100 S.Ct. 2952, 64 L.Ed.2d 831; State v. Beachman (1980), 189 Mont. 400, 406, 616 P.2d 337, 340-41; State v. Hall (1986), 224 Mont. 187, 189, 728 P.2d 1339, 1340, rev'd on other grounds by 481 U.S. 400, 107 S.Ct. 1825, 95 L.Ed.2d 354.

[42] ¶21 However, in 1992, without stating any particular rationale, we adopted a second version of the ex post facto test in State v. Leistiko (1992), 256 Mont. 32, 844 P.2d 97. This version was adopted from Miller v. Florida (1987), 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351, and specifically stated that a law was ex post facto if it: (1) was retrospective; and (2) disadvantaged the offender affected by it. Leistiko , 256 Mont. at 3637, 844 P.2d at 100 (holding that an increase in the amount of restitution owed, based on recent parole violations, violated the ex post facto clause).

[43] ¶22 We continued to apply the Leistiko test for four years. Then, in 1996, we adopted a third version in Frazier v. Montana State Dept. of Corrections (1996), 277 Mont. 82, 920 P.2d 93. The Frazier test looked to both the intent and the effect of the law at issue. Frazier , 277 Mont. at 85-87, 920 P.2d at 95-97 (holding that the intent of an administrative supervision fee is non-punitive and the effect of the law is to require monetary assistance from Frazier). In Frazier , we stated that Leistiko was inapplicable on the facts, as Frazier dealt with a civil sanction. In this regard, we noted that "[a] civil sanction will implicate ex post facto concerns only if it can be fairly characterized a punishment." Frazier , 277 Mont at 85, 920 P.2d at 95 (citing Bae v. Shalala (7th Cir. 1995), 44 F.3d 489, 492).

[44] ¶23 Notwithstanding our adoption of the Frazier test, we continued, for the most part, to apply the Leistiko test in criminal contexts. See State v. Suiste (1993), 261 Mont. 251, 253, 862 P.2d 399, 401 ; State v. Brander (1996), 280 Mont. 148, 153, 930 P.2d 31, 35; Matter of Brogan (1997), 283 Mont. 413, 422, 942 P.2d 100, 106; State v. Beckman (1997), 284 Mont. 459, 463, 944 P.2d 756, 759; State v. Cooney (1997), 284 Mont. 500, 505, 945 P.2d 891, 893-94; In re Young , 1999 MT 195, ¶ 14, 295 Mont. 394, ¶ 14, 983 P.2d 985, ¶ 14; State v. Duffy , 2000 MT 186, ¶ 29, 300 Mont. 381, ¶ 29, 6 P.3d 453, ¶ 29; State v. Goebel , 2001 MT 155, ¶ 28, 306 Mont. 83, ¶ 28, 31 P.3d 340, ¶ 28; Wright v. Mahoney , 2003 MT 141, ¶ 7, 316 Mont. 173, ¶ 7, 71 P.3d 1195, ¶ 7.

[45] ¶24 However, in 1997, we again reformulated the ex post facto test for criminal matters. As revised, this test states that a law is ex post facto if it:

[46] [1] punishes as a crime an act which was not unlawful when committed;

[47] [2] makes punishment for a crime more burdensome; or

[48] [3] deprives [a] person charged with a crime of any defense available under the law at the time the act was committed.

[49] See Langford v. State (1997), 287 Mont. 107, 114, 951 P.2d 1357, 1361; Kills on Top v. State , 2000 MT 340, ¶ 65, 303 Mont. 164, ¶ 65, 15 P.3d 422, ¶ 65.

[50] ¶25 Given that this test is more comprehensive and is in line with the progression of our ex post facto jurisprudence, we take this opportunity to clarify that henceforth, the test, as set forth in Langford , shall be used in analyzing ex post facto challenges in criminal contexts.

[51] ¶26 That said, and for reasons which will become apparent in our further discussion, in analyzing ex post facto challenges in civil sanction contexts, we will henceforth apply an intents-effects test. Our articulation and application of that test here, though, follows current federal case law and is more comprehensive than was the test stated in Frazier .

[52] ¶27 With that introduction, we next turn to the Act itself.

[53] B. THE ACT

[54] ¶28 As noted, the Act was adopted in 1989, and this law is codified in the code of criminal procedure. See §§ 46-23-501 to 520, MCA. Among other things, the Act requires offenders to register in-person with the local law enforcement agency in their communities. Sections 46-23-504(1) and (2), MCA (2001). During this initial registration, offenders must provide the local law enforcement agency with their addresses, photographs and fingerprints. Section 46-23-504(3), MCA (2001). After this initial registration, offenders must then update their addresses by mail according to the time-frames applicable to their level designations--i.e., level one and level two offenders must update their registration information once a year and level three offenders, every 90 days. Section 46-23-504(4), MCA (2001).

[55] ¶29 Under the Act, the duration of the registration requirement depends on an offender's classification--i.e., sex offenders must register for the rest of their lives. Section 46-23506(1), MCA (2001). However, both sex and violent offenders may petition a court for relief of the registration requirement after ten years of registration compliance. Section 4623-506(3), MCA (2001). Finally, as noted above, the Act contains a retroactivity clause for both sex and violent offenders. Section 46-23-501, MCA, Compiler's Comments.

[56] ¶30 As previously stated, Mount contends that the Act violates the ex post facto clause of the United States and Montana Constitutions. That challenge brings us to the recent United States Supreme Court (Supreme Court) case, Smith v. Doe (2003), ___ U.S. ___, 123 S.Ct. 1140, 155 L.Ed.2d 164. Smith dealt with an ex post facto challenge to a sexual offender registration act similar to Montana's act. Specifically, the Supreme Court in Smith addressed whether Alaska's Sexual Offender Registration Act (Alaska's Act) violated the federal ex post facto clause. Smith , ___ U.S. at ___, 123 S.Ct. at 1145.

[57] ¶31 Both respondents in Smith pled nolo contendre to sexual abuse charges and served and completed their respective sentences and rehabilitative programs. However, Alaska's Act contained a retroactivity provision which made the requirements of Alaska's Act applicable to them, with the result that, after completing their respective sentences and rehabilitative programs, both respondents were required to register as sex offenders under Alaska's Act. Smith , ___ U.S. at ___, 123 S.Ct. at 1145-46. The respondents were also required to submit quarterly verifications to the appropriate authorities, and to notify the authorities of any changes to their initial registration forms. Both respondents argued Alaska's Act violated the federal ex post facto clause. Smith , ___ U.S. at ___, 123 S.Ct. at 1146.

[58] ¶32 The Supreme Court, however, rejected this challenge and held that Alaska's Act did not violate the ex post facto clause. Important to our analysis here, the Supreme Court utilized an intents-effects test in disposing of the case. Smith , ___ U.S. at ___, 123 S.Ct. at 1146-47, 1154. It is to the Supreme Court's articulation of that test we now turn.

[59] C. THE TEST

[60] ¶33 As a first step, the Supreme Court determined the intent of the law at issue. In so doing, it analyzed: (1) the declared purpose of the law and (2) the structure of the law. In this part of its analysis, the Supreme Court stated that if the declared purpose of the law, or the structure of the law, or the declared purpose and the structure of the law is punitive, the analysis ends, for at that point the law meets the very definition of ex post facto . Smith , ___ U.S. at ___, 123 S.Ct. at 1146-47. This parallels the test we used in Frazier , 277 Mont. at 86, 920 P.2d at 96.