Ronald S. Kammerer, Jr. v. The State of Wyoming , 2014 Wyo. LEXIS 55 ( 2014 )

IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 50
APRIL TERM, A.D. 2014
April 17, 2014
RONALD S. KAMMERER, JR.,
Appellant
(Defendant),
v. No. S-13-0070
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Campbell County
The Honorable Michael N. Deegan, Judge
Representing Appellant:
Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N.
Olson, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.
Argument by Mr. Morgan.
Representing Appellee:
Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General;
Jeffrey S. Pope, Assistant Attorney General. Argument by Mr. Delicath.
Before KITE, C.J., and HILL, VOIGT*, BURKE, and DAVIS, JJ.
*Justice Voigt retired effective January 3, 2014.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Justice.
[¶1] Appellant, Ronald S. Kammerer, Jr., challenges his conviction for failure to
register as a sex offender, in violation of Wyo. Stat. Ann. § 7-19-302(j) and Wyo. Stat.
Ann. § 7-19-307(a)(d). He contends that Wyoming’s Sex Offender Registration Act
(Wyo. Stat. Ann. §§ 7-19-301 through 7-19-307) (“WSORA” or “the Act”) violates the
prohibitions against ex post facto laws contained in the United States and Wyoming
Constitutions. We affirm.
ISSUES
[¶2] Appellant presents the following issues:
1. Does Wyoming’s Sex Offender Registration Act violate
the United States Constitution, Art. 1, § 10, prohibition
against enacting ex post facto laws?
2. Does Wyoming’s Sex Offender Registration Act violate
the Wyoming Constitution’s prohibition of ex post facto
laws?
The State presents an additional issue:
1. Did the district court commit plain error by not finding
that the Wyoming Constitution provides greater protection
than its federal analog and that the Wyoming Sex
Offender Registration Act violates that greater protection?
FACTS
[¶3] In 1993, Appellant pled guilty to a second degree sexual assault crime in New
Jersey. He subsequently moved to Gillette, Wyoming. Appellant’s New Jersey
conviction required him to register as a sex offender in Wyoming under Wyo. Stat. Ann.
§ 7-19-302(j) (LexisNexis 2011).1 In early 2012, the State charged Appellant with one
1
The statute provides, in relevant part, as follows:
(j) For an offender convicted of a violation of W.S. 6-2-201 if the victim
was a minor, W.S. 6-2-302 or 6-2-303, W.S. 6-2-304(a)(iii) if the victim
was under fourteen (14) years of age, W.S. 6-2-314(a)(i), W.S. 6-2-
314(a)(ii) and (iii) if the victim was less than thirteen (13) years of age,
W.S. 6-2-315(a)(ii), W.S. 6-2-315(a)(iii) and (iv) if the victim was less
than thirteen (13) years of age, W.S. 6-2-316(a)(ii) and (iii), 6-4-402, 18
1
count of failure to register, in violation of Wyo. Stat. Ann. § 7-19-302(j) and Wyo. Stat.
Ann. § 7-19-307(a)(d). Before trial, Appellant filed a Motion to Dismiss as Ex Post
Facto Law, claiming that the Wyoming Sex Offender Registration Act is
unconstitutional. The district court denied Appellant’s motion.
[¶4] The case proceeded to trial, and Appellant was convicted of failing to register.
The jury also found that Appellant was subject to an enhanced penalty because he had
previously been convicted of the crime of failing to register as a sex offender. The
district court sentenced Appellant to a term of four to seven years imprisonment. This
timely appeal followed.
STANDARD OF REVIEW
[¶5] Appellant presents a constitutional challenge to Wyoming’s Sex Offender
Registration Act. The question of whether a statute is constitutional is a question of law
over which this Court exercises de novo review. Smith v. State, 2009 WY 2, ¶ 52, 199
P.3d 1052, 1067-68 (Wyo. 2009). We presume statutes to be constitutional and resolve
any doubt in favor of constitutionality. Id., ¶ 52, 199 P.3d at1068.
DISCUSSION
[¶6] In 1994, Wyoming joined the majority of other states in enacting legislation
relating to sex offender registration. Snyder v. State, 912 P.2d 1127, 1129 (Wyo. 1996).
By 1996, every State, the District of Columbia, and the Federal Government had enacted
laws requiring sex offender registration. Smith v. Doe, 538 U.S. 84, 90, 123 S. Ct. 1140,
1145, 155 L. Ed. 2d 164 (2003).
[¶7] Under Wyoming’s Act, offenders convicted of certain sex offenses must register
with the county sheriff in their county of residence. Wyo. Stat. Ann. § 7-19-302(a). The
basic provisions of the Act require the registrant to provide identifying information,
including the registrant’s name, aliases, address, date and place of birth, social security
number, place and address of employment, a DNA sample, and any internet identifiers.
Id. The registrant must also provide the date and place of his conviction, the crime for
U.S.C. § 2245, or an offense in another jurisdiction containing the same
or similar elements, or arising out of the same or similar facts or
circumstances as a criminal offense specified in this subsection, an
attempt or conspiracy to commit any of the offenses specified in this
subsection, . . . the division shall verify the accuracy of the offender’s
registered address, and the offender shall report, in person, his current
address to the sheriff in the county in which the offender resides every
three (3) months after the date of the initial release or commencement of
parole.
2
which he was convicted, the age of each victim, the name and address of educational
institutions at which the registrant is employed or attending school, the license plate
number and description of his vehicle, and any phone number at which the registrant may
be reached. Id. Additionally, the registrant must be photographed and fingerprinted. Id.
If the registrant intends to travel outside the United States, he must inform the county
sheriff of his plans at least twenty-one days prior to travel. Wyo. Stat. Ann. § 7-19-
302(q). The duty to register continues for the duration of the registrant’s life, but this
duty may terminate in certain cases upon the registrant’s petition to be relieved from the
duty to register. Wyo. Stat. Ann. § 7-19-304(a).
[¶8] The Act also establishes a central registry of offenders and makes certain
identifying information and information relating to the registrant’s offense available to
the public. Wyo. Stat. Ann. § 7-19-303(a), (c)(iii). The Act requires this information to
be made available through the internet, and also requires the dissemination of notice of a
registrant’s status as a sex offender to residential neighbors living within 750 feet of the
registrant. Wyo. Stat. Ann. § 7-19-303(c)(ii), (iii). A sex offender who fails to comply
with the Act is subject to criminal prosecution. Wyo. Stat. Ann. § 7-19-307.
[¶9] In his first issue, Appellant contends that Wyoming’s Sex Offender Registration
Act violates the ex post facto clause of the United States Constitution because it
retroactively inflicts greater punishment for his crime. The passage of ex post facto laws
is prohibited by Article 1, § 10 of the United States Constitution and Article 1, § 35 of the
Wyoming Constitution.2 “[A]ny statute . . . which makes more burdensome the
punishment for a crime, after its commission, . . . is prohibited as ex post facto.” Smith v.
State, ¶ 55, 199 P.3d at 1068 (quoting Dobbert v. Florida, 432 U.S. 282, 292, 97 S. Ct.
2290, 53 L. Ed. 2d 344 (1977)). We have stated that the constitutional prohibition against
ex post facto laws applies only to statutes that impose penalties. Snyder, 912 P.2d at
1130.
2
Those sections provide, in relevant part, as follows:
No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law
impairing the Obligation of Contracts, or grant any Title of Nobility.
U.S. Const. art. I, § 10.
No ex post facto law, nor any law impairing the obligation of contracts,
shall ever be made.
Wyo. Const. art. I, § 35.
3
In deciding whether or not a law is penal, this Court has
generally based its determination upon the purpose of the
statute. If the statute imposes a disability for the purposes of
punishment – that is, to reprimand the wrongdoer, to deter
others, etc., it has been considered penal. But a statute has
been considered nonpenal if it imposes a disability, not to
punish, but to accomplish some other legitimate
governmental purpose. The Court has recognized that any
statute decreeing some adversity as a consequence of certain
conduct may have both a penal and a nonpenal effect. The
controlling nature of such statutes normally depends on the
evident purpose of the legislature.
Id. (quoting Trop v. Dulles, 356 U.S. 86, 96, 78 S. Ct. 590, 595-96, 2 L. Ed. 2d 630
(1958)).
[¶10] This is not the first time that a constitutional challenge to Wyoming’s Sex
Offender Registration Act has been before this Court. In Snyder, the appellant claimed
the Act was an unconstitutional ex post facto law because it retroactively inflicted
punishment after his crime was committed. Specifically, the appellant claimed that the
Act was punitive because (1) it submitted the registrant to police surveillance and lineup
appearances if a similar crime was committed, (2) the fact of registration itself was
admissible under the Wyoming Rules of Evidence, and (3) failure to register was
punishable by imprisonment. Snyder, 912 P.2d at 1130. We began our analysis by
noting that
The mark of an ex post facto law is the imposition of what
can fairly be designated punishment for past acts. The
question in each case where unpleasant consequences are
brought to bear upon an individual for prior conduct, is
whether the legislative aim was to punish that individual for
past activity, or whether the restriction of the individual
comes about as a relevant incident to a regulation of a present
situation.
Id. at 1131 (quoting De Veau v. Braisted, 363 U.S. 144, 160, 80 S. Ct. 1146, 1155, 4
L. Ed. 2d 1109 (1960)). In our discussion, we noted that “the Act is unaccompanied by a
description of its purpose and legislative history does not exist which would assist in
discerning whether the legislative intent was regulatory or punitive.” Nonetheless, we
concluded that “The plain reading of the statutory scheme . . . indicates that the
legislature intended to facilitate law enforcement and protection of children. There was
no intent to inflict greater punishment.” Snyder, 912 P.2d at 1131. Accordingly, we held
that the Act “does not inflict greater punishment and does not violate the ex post facto
4
clause.” Id.
[¶11] Since its initial passage in 1994, Wyoming’s Sex Offender Registration Act has
been amended on numerous occasions. Appellant claims that the revisions to WSORA
are punitive because they require “the use of ‘active’ as well as passive community
notification,” and because the Act “requires frequent in-person registration, and imposes
elevated movement and residency restrictions.” Appellant acknowledges that, in Snyder,
we found that amendments to WSORA imposing stricter registration requirements did
not violate the ex post facto clause of the United States Constitution. He contends,
however, that the recent amendments “tip the scale and make the current version of
WSORA more punitive.”
[¶12] Subsequent to our decision in Snyder, the United States Supreme Court, in Smith
v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 1146, 155 L. Ed. 2d 164 (2003), considered
whether Alaska’s sex offender registration and notification statutes constituted retroactive
punishment forbidden by the ex post facto clause. The statutory scheme at issue in Smith
v. Doe contained elements similar to those found in the current version of Wyoming’s
Act. The Alaska law required, among other things, that sex offenders be photographed
and fingerprinted, and mandated that offenders provide their name, aliases, identifying
features, address, place of employment, date of birth, conviction information, driver’s
license number, information about vehicles to which they had access, and postconviction
treatment history. Id., 538 U.S. at 90, 123 S. Ct. at 1145-46. Much of this information
was made available to the public. Id., 538 U.S. at 91, 123 S. Ct. at 1146. In cases
involving an aggravated sex offense or two or more sex offenses, the offender was
required to register for life and verify the information quarterly. Id., 538 U.S. at 90, 123
S. Ct. at 1146. The law also required an offender to notify the local police department of
any changes in residence. Id.
[¶13] The Court set forth the framework for its inquiry as follows:
We must “ascertain whether the legislature meant the statute
to establish ‘civil’ proceedings.” Kansas v. Hendricks, 521
U.S. 346, 361, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997). If the
intention of the legislature was to impose punishment, that
ends the inquiry. If, however, the intention was to enact a
regulatory scheme that is civil and nonpunitive, we must
further examine whether the statutory scheme is “‘so punitive
either in purpose or effect as to negate [the State’s] intention’
to deem it ‘civil.’” Ibid. (quoting United States v. Ward, 448
U.S. 242, 248-249, 65 L. Ed. 2d 742, 100 S. Ct. 2636 (1980)).
Because we “ordinarily defer to the legislature’s stated
intent,” Hendricks, supra, at 361, “‘only the clearest proof’
will suffice to override legislative intent and transform what
5
has been denominated a civil remedy into a criminal penalty,”
Hudson v. United States, 522 U.S. 93, 100, 139 L. Ed. 2d 450,
118 S. Ct. 488 (1997) (quoting Ward, supra, at 249); see also
Hendricks, supra, at 361; United States v. Ursery, 518 U.S.
267, 290, 135 L. Ed. 2d 549, 116 S. Ct. 2135 (1996); United
States v. One Assortment of 89 Firearms, 465 U.S. 354, 365,
79 L. Ed. 2d 361, 104 S. Ct. 1099 (1984).
Smith v. Doe, 538 U.S. at 92, 123 S.Ct. at 1146-47. In the first part of its two-step
inquiry, the Court noted that “As we observed in Hendricks, where we examined an ex
post facto challenge to a post-incarceration confinement of sex offenders, an imposition
of restrictive measures on sex offenders adjudged to be dangerous is ‘a legitimate
nonpunitive governmental objective and has been historically so regarded.’” The Court
concluded, as it did in Hendricks, that “nothing on the face of the statute suggests that the
legislature sought to create anything other than a civil . . . scheme designed to protect the
public from harm.” Smith v. Doe, 538 U.S. at 93, 123 S.Ct. at 1147 (quoting Hendricks,
521 U.S. at 361, 117 S.Ct. at 2082).
[¶14] The Court then proceeded to the question of whether the effect of the Alaska
statute negated the legislature’s intent to impose regulatory, as opposed to punitive,
sanctions. To answer this question, the Court invoked the factors identified in Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963), which the
Court noted were designed to apply in “various constitutional contexts.” Smith v. Doe,
538 U.S. at 97, 123 S.Ct. at 1149. The Court stated that the factors most relevant to its
analysis were “whether, in its necessary operation, the regulatory scheme: has been
regarded in our history and traditions as a punishment; imposes an affirmative disability
or restraint; promotes the traditional aims of punishment; has a rational connection to a
nonpunitive purpose; or is excessive with respect to this purpose.”3 Id. After considering
the relevant factors, the Court concluded that “respondents cannot show, much less by the
3
The Court concluded that the remaining Mendoza-Martinez factors were of “little weight” in the context
of sex offender registration legislation:
The two remaining Mendoza-Martinez factors – whether the regulation
comes into play only on a finding of scienter and whether the behavior to
which it applies is already a crime – are of little weight in this case. The
regulatory scheme applies only to past conduct, which was, and is, a
crime. This is a necessary beginning point, for recidivism is the statutory
concern. The obligations the statute imposes are the responsibility of
registration, a duty not predicated upon some present or repeated
violation.
Smith v. Doe, 538 U.S. at 105, 123 S.Ct. at 1154.
6
clearest proof, that the effects of the law negate Alaska’s intention to establish a civil
regulatory scheme. The Act is nonpunitive, and its retroactive application does not
violate the Ex Post Facto Clause.” Id., 538 U.S. at 105-06, 123 S. Ct. at 1154.
Application of the principles articulated in Snyder and Smith to the present case leads us
similarly to the conclusion that the current version of WSORA does not violate the ex
post facto clause of the United States Constitution.
Legislative Intent
[¶15] We begin our analysis by examining the legislature’s intent in enacting the
amendments to Wyoming’s Sex Offender Registration Act. Our inquiry is whether the
legislature “indicated either expressly or impliedly a preference” to impose civil or
criminal sanctions. Smith v. Doe, 538 U.S. at 93, 123 S.Ct. at 1147 (quoting Hudson, 522
U.S. at 99, 118 S.Ct. at 493). Answering this question is a matter of statutory
construction. Smith v. Doe, 538 U.S. at 92, 123 S.Ct. at 1147. We look to the “statute’s
text and its structure to determine the legislative objective.” Id.
[¶16] As noted above, we have previously determined, in Snyder, 912 P.2d at 1131, that
WSORA is intended to impose regulatory, as opposed to punitive, requirements. We
affirmed this conclusion in In re JJF v. State, 2006 WY 41, ¶ 25, 132 P.3d 170, 178
(Wyo. 2006), where we stated that “Wyoming’s [sex offender registration] statutes, like
others nationwide, are regulatory rather than punitive in purpose.” Appellant contends,
however, that the amendments to WSORA indicate that the legislature intended to
impose punishment. Appellant claims that the amendments were enacted in response to
federal legislation relating to sex offender registration which conditions the receipt of
federal grants on compliance with the federal standards. As a result, according to
Appellant, “Wyoming’s enactment of WSORA was for financial gain.” Additionally,
Appellant notes that the Act is codified within Wyoming’s Criminal Procedure Code, and
suggests that this fact indicates the law is intended to be punitive.
[¶17] Even if we assume that the Wyoming legislature was “motivated by financial
gain,” as posited by Appellant, we fail to see how this fact indicates that the legislature
intended to impose punishment. Appellant does not attempt to explain how this fact
would be indicative of punitive intent. Consequently, we find this argument
unpersuasive.
[¶18] Appellant acknowledges that “the Supreme Court has noted that criminal
codification does not itself transform civil laws [into] criminal ones.” Indeed, in Smith v.
Doe, 538 U.S. at 94-95, 123 S.Ct. at 1148, the Court responded to a similar argument:
Other formal attributes of a legislative enactment, such
as the manner of its codification or the enforcement
procedures it establishes, are probative of the legislature’s
7
intent. See Hendricks, supra, at 361; Hudson, supra, at 103;
89 Firearms, supra, at 363. In this case these factors are open
to debate. The notification provisions of the Act are codified
in the State’s “Health, Safety, and Housing Code,” § 18,
confirming our conclusion that the statute was intended as a
nonpunitive regulatory measure. Cf. Hendricks, supra, at 361
(the State’s “objective to create a civil proceeding is
evidenced by its placement of the Act within the [State’s]
probate code, instead of the criminal code” (citations
omitted)). The Act’s registration provisions, however, are
codified in the State’s criminal procedure code, and so might
seem to point in the opposite direction. These factors, though,
are not dispositive. The location and labels of a statutory
provision do not by themselves transform a civil remedy into
a criminal one. In 89 Firearms, the Court held a forfeiture
provision to be a civil sanction even though the authorizing
statute was in the criminal code. 465 U.S., at 364-365. The
Court rejected the argument that the placement demonstrated
Congress’ “intention to create an additional criminal
sanction,” observing that “both criminal and civil sanctions
may be labeled ‘penalties.’” Id., at 364, n.6.
The same rationale applies here. . . . The partial
codification of the Act in the State’s criminal procedure code
is not sufficient to support a conclusion that the legislative
intent was punitive.
Likewise, in the present case, we are not persuaded that the legislature’s mere
codification of WSORA within Wyoming’s Criminal Procedure Code indicates that the
legislature intended for the statutes to be punitive. WSORA was also codified within the
Criminal Procedure Code at the time Snyder and In re JJF were decided. That fact,
however, did not affect our conclusion that the legislature intended to enact a nonpunitive
regulatory scheme. We find no reason, and Appellant has offered none, to depart from
our precedent with respect to this issue. We turn, then, to the issue of whether the
statutory scheme is so punitive as to negate the legislature’s intent to impose a regulatory
scheme for convicted sex offenders.
Punitive Effect
[¶19] To determine whether the effect of WSORA negates the legislature’s intent to
create regulatory requirements for sex offenders, we apply the relevant factors set forth in
Kennedy v. Mendoza-Martinez, as identified in Smith v. Doe. Again, those factors
evaluate whether the regulatory scheme (1) has been regarded in our history and
8
traditions as a punishment, (2) imposes an affirmative disability or restraint, (3) promotes
the traditional aims of punishment, (4) has a rational connection to a nonpunitive
purpose, or (5) is excessive with respect to this purpose. Smith v. Doe, 538 U.S. at 97,
123 S.Ct. at 1149. We will address each of these factors in turn. Ultimately, we
conclude that the effects of the Act do not override the legislature’s intent to enact a
regulatory scheme for registration of sex offenders.
(1) Historically regarded as punishment
[¶20] Evaluation of the first Mendoza-Martinez factor is based on the notion that “a
State that decides to punish an individual is likely to select a means deemed punitive in
our tradition, so that the public will recognize it as such.” Smith v. Doe, 538 U.S. at 97,
123 S.Ct. at 1149. Appellant contends “The world wide website dissemination of [an]
offender’s picture and personal information without any type of restriction or monitoring
is akin to traditional shaming punishments intended to inflict public disgrace.” Appellant
also suggests that the Act’s requirement that notice of the offender’s registration be
delivered to residential neighbors within 750 feet of the offender’s residence is similar to
the historical punishment of public shaming. Finally, Appellant claims that the Act’s
reporting provisions are similar to supervised probation or parole.
[¶21] The Third Circuit Court of Appeals, addressing a challenge to New Jersey’s
notification scheme for registered sex offenders, which involved an element of risk
assessment, has distinguished between the State’s public dissemination of personal
information and the historical punishments of public shaming or banishment:
Nor can we accept the suggested analogy between
notification’s re-publication of information publicly available
at the time of a sex offender’s trial and the holding of a
convicted defendant up to public ridicule. Public shaming,
humiliation and banishment all involve more than the
dissemination of information. State dissemination of
information about a crime and its perpetrators was
unnecessary in colonial times because all in the colonial
settlement would have knowledge of these matters. Rather,
these colonial practices inflicted punishment because they
either physically held the person up before his or her fellow
citizens for shaming or physically removed him or her from
the community.
The “sting” of [New Jersey’s sex offender notification
scheme] results not from their being publicly displayed for
ridicule and shaming but rather from the dissemination of
accurate public record information about their past criminal
9
activities and a risk assessment by responsible public
agencies based on that information. This distinction makes a
substantial difference when one looks for the relevant
historical understanding of our society. Dissemination of
information about criminal activity has always held the
potential for substantial negative consequences for those
involved in that activity. Dissemination of such information
in and of itself, however, has never been regarded as
punishment when done in furtherance of a legitimate
governmental interest.
When there is probable cause to believe that someone
has committed a crime, our law has always insisted on public
indictment, public trial, and public imposition of sentence, all
of which necessarily entail public dissemination of
information about the alleged activities of the accused.
...
Whenever these state notices are directed to a risk
posed by individuals in the community, those individuals can
expect to experience embarrassment and isolation.
Nevertheless, it is generally recognized that the state has a
right to issue such warnings and the negative effects are not
regarded as punishment. Because the closest analogies have
not historically been regarded as punishment, we conclude
that historical precedent does not demonstrate an objective
punitive purpose.
E.B. v. Verniero, 119 F.3d 1077, 1099-1101 (3d Cir. 1997) (see also Femedeer v. Haun,
227 F.3d 1244, 1251 n.2 (10th Cir. 2000) (noting that “the Third Circuit’s discussion of
whether notification has historically been regarded as punishment is instructive,” despite
the fact that New Jersey’s notification scheme contained an element of risk assessment
absent from Utah’s system)). Further, we note that at least one other Circuit Court of
Appeals has determined that “active” dissemination of an individual’s sex offender status
is distinguishable from public shaming:
Plaintiffs attempt to distinguish Smith [v. Doe] on the grounds
that, unlike the Alaska law at issue there, AB 579 requires
law enforcement agencies actively to provide notice of an
individual’s sex-offender status in many instances. See AB
579 § 29(2). We have previously held that a state law which
included a provision requiring government agencies actively
10
to notify the public of certain individuals’ sex-offender status
was not so punitive in effect that it violated the Ex Post Facto
Clause. Russell [v. Gregoire], 124 F.3d [1079,] 1082, 1091-
92 [(9th Cir. 1997)]. That logic remains sound in the wake of
Smith. Active dissemination of an individual’s sex offender
status does not alter the Court’s core reasoning that “stigma
. . . results not from public display for ridicule and shaming
but from the dissemination of accurate information about a
criminal record, most of which is already public.” Smith, 538
U.S. at 98. Though “humiliation increas[es] in proportion to
the extent of the publicity,” the “purpose and the principal
effect of notification are to inform the public for its own
safety.” Id. at 99.
ACLU v. Masto, 670 F.3d 1046, 1055-56 (9th Cir. 2012). We are in agreement with the
analysis of these courts. Although dissemination of information relating to a registrant’s
status as a sex offender may have negative consequences for the registrant, information
regarding the offense is made public at the time of trial, and its publication under
WSORA is merely a necessary consequence of the Act’s intent to protect the public from
harm. Accordingly, we conclude, consistently with the authorities quoted above, that
WSORA’s publication and notification requirements are not analogous to the historic
punishment of public shaming.
[¶22] We are also not persuaded that WSORA’s reporting requirements are akin to
supervised probation or parole. As the Supreme Court explained in Smith v. Doe, 538
U.S. at 101-102, 123 S.Ct. at 1152, reporting requirements do not subject registrants to
supervision, and do not prevent registrants from moving where they please:
Probation and supervised release entail a series of mandatory
conditions and allow the supervising officer to seek the
revocation of probation or release in case of infraction. See
generally Johnson v. United States, 529 U.S. 694, 146
L. Ed. 2d 727, 120 S. Ct. 1795 (2000); Griffin v. Wisconsin,
483 U.S. 868, 97 L. Ed. 2d 709, 107 S. Ct. 3164 (1987). By
contrast, offenders subject to the Alaska statute are free to
move where they wish and to live and work as other citizens,
with no supervision. Although registrants must inform the
authorities after they change their facial features (such as
growing a beard), borrow a car, or seek psychiatric treatment,
they are not required to seek permission to do so. A sex
offender who fails to comply with the reporting requirement
may be subjected to a criminal prosecution for that failure,
but any prosecution is a proceeding separate from the
11
individual’s original offense. Whether other constitutional
objections can be raised to a mandatory reporting
requirement, and how those questions might be resolved, are
concerns beyond the scope of this opinion. It suffices to say
the registration requirements make a valid regulatory program
effective and do not impose punitive restraints in violation of
the Ex Post Facto Clause.
While the reporting provisions of WSORA require registrants to interact periodically
with law enforcement agencies, those requirements do not subject registrants to
monitoring similar to that imposed under supervised probation or parole. We conclude
that this factor does not demonstrate that WSORA has a punitive purpose or effect.
(2) Affirmative disability or restraint
[¶23] Under the second Mendoza-Martinez factor, “we inquire how the effects of the
Act are felt by those subject to it. If the disability or restraint is minor and indirect, its
effects are unlikely to be punitive.” Smith v. Doe, 538 U.S. at 99-100, 123 S.Ct. at 1151.
Appellant contends that WSORA imposes restraints that are “severe and time
consuming,” noting the Act’s requirements that the offender must report his address in
person to the county sheriff every three months, report any change in residence, vehicle,
or employment status within three days, and report an intention to leave the country at
least twenty-one days prior to travel.
[¶24] Several Circuit Courts of Appeals, addressing the provisions of the federal Sex
Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901 et seq., have
found that requiring in-person appearances by the registrant to update personal
information, and to provide notification of changes in residence, vehicle, and
employment status, does not impose an affirmative disability. In United States v. Parks,
698 F.3d 1, 6 (1st Cir. 2012), the First Circuit Court of Appeals noted the regulatory
justifications for requiring in-person appearances by the registrant:
To appear in person to update a registration is doubtless more
inconvenient than doing so by telephone, mail or web entry;
but it serves the remedial purpose of establishing that the
individual is in the vicinity and not in some other jurisdiction
where he may not have registered, confirms identity by
fingerprints and records the individual’s current appearance.
See also United States v. Under Seal, 709 F.3d 257, 265 (4th Cir. 2013) (“Although
Appellant is required under SORNA to appear periodically in person to verify his
information and submit to a photograph, see 42 U.S.C. § 16916, this is not an affirmative
disability or restraint.”); United States v. W.B.H., 664 F.3d 848, 857 (11th Cir. 2011)
12
(“Appearing in person may be more inconvenient, but requiring it is not punitive.”).
Additionally, in Smith v. Doe, 538 U.S. at 100, 123 S.Ct. at 1151, the Supreme Court
found that Alaska’s law imposed no physical restraint on the registrant and therefore
constituted a negligible affirmative disability. The Court noted that any negative
consequences to a registrant’s employment or housing prospects stemmed from the fact
of the registrant’s conviction, rather than the existence of the registry. Id., 538 U.S. at
101, 123 S. Ct. at 1151. The Tenth Circuit reached a similar conclusion in Femedeer, 227
F.3d at 1250, with respect to Utah’s sex offender registration statutes, stating that
“notification does not by itself prohibit sex offenders from pursuing any vocation or
avocation available to other members of the public, and we therefore conclude that this
factor weighs against finding that the statute is punitive in purpose or effect.”
[¶25] Similar to the Alaska statute at issue in Smith v. Doe, 538 U.S. at 100, 123 S.Ct. at
1151, the Wyoming Act “does not restrain activities sex offenders may pursue but leaves
them free to change jobs or residences,” and the Act does not require registrants to seek
permission before making changes in their employment or residence. Unlike SORNA
and the Alaska statute, however, Wyoming’s Act requires registrants to provide notice to
the county sheriff at least twenty-one days prior to traveling outside the country. Wyo.
Stat. Ann. § 7-19-302(q). Appellant asserts that this provision imposes an affirmative
restraint because it restricts “spontaneous” travel outside the country. We agree that this
particular provision imposes a restraint by preventing the registrant from leaving the
country without first providing notice. Ultimately, however, we conclude that this
provision does not make the statute “so punitive either in purpose or effect” as to negate
the legislature’s intent to create a regulatory scheme. Examining the statute in its
entirety, we cannot conclude that, as a result of the effect of this particular provision,
Appellant has met his “heavy burden” of establishing that the Act is unconstitutional.
Further, we note that Appellant was not accused of violating this particular provision of
the Act, nor did he allege that he had made any attempt to travel outside of the United
States. Rather, Appellant has challenged the Act in its entirety. Even if the
constitutionality of Wyo. Stat. Ann. § 7-19-302(q), in isolation, were before us, however,
we would attempt to interpret the Act so as to avoid an unconstitutional result. If we held
that Wyo. Stat. Ann. § 7-19-302(q) were invalid, we would uphold those portions of the
Act which could be given effect without the invalid provision. See Rutti v. State, 2004
WY 133, ¶ 15, 100 P.3d 394, 403 (Wyo. 2004); Wyo. Stat. Ann. § 8-1-103(a)(viii).4
4
Wyo. Stat. Ann. § 8-1-103(a)(viii) provides as follows:
(viii) If any provision of any act enacted by the Wyoming legislature or
its application to any person or circumstance is held invalid, the
invalidity does not affect other provisions or applications of the act
which can be given effect without the invalid provision or application,
and to this end the provisions of any such act are severable[.]
13
However, Appellant has not presented any argument with respect to the severability of
Wyo. Stat. Ann. § 7-19-302(q). As a result, we do not address that issue. We conclude
that the Act’s reporting requirements do not negate the legislature’s intent to create a
regulatory scheme.
(3) Traditional aims of punishment
[¶26] The traditional aims of punishment identified in Smith v. Doe are retribution and
deterrence. In that case, the Court stated that although the Alaska statute may have a
deterrent effect on future crimes, “[a]ny number of governmental programs might deter
crime without imposing punishment.” Id., 538 U.S. at 102, 123 S. Ct. at 1152. The Court
noted that “To hold that the mere presence of a deterrent purpose renders such sanctions
‘criminal’ . . . would severely undermine the Government’s ability to engage in effective
regulation.” Id. (quoting Hudson, 522 U.S. at 105, 118 S. Ct. at 496). Similar to the
Supreme Court’s conclusion with respect to Alaska’s sex offender registration statute, we
find that Wyoming’s Act does not have a punitive effect merely because it may deter the
commission of sex offenses.
[¶27] Appellant also contends that WSORA’s retributive effect is evidenced by its
classification of offenders based on their crimes, rather than their likelihood of
reoffending. According to Appellant, “By classifying offenders based on their conviction
without rational relation to the likelihood of re-offense, the legislature has both deterred
future crimes and exacted further retribution for past acts.” This argument, however, was
also rejected in Smith v. Doe, 538 U.S. at 102, 123 S. Ct. at 1152:
The Act, it is true, differentiates between individuals
convicted of aggravated or multiple offenses and those
convicted of a single nonaggravated offense. Alaska Stat. §
12.63.020(a)(1) (2000). 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.
As in Smith, we find that the classification of offenders based on their crimes is not
indicative of retributive intent. This factor does not weigh in favor of a finding that
WSORA has a punitive effect.
(4) Rational connection to a nonpunitive purpose
[¶28] According to the Supreme Court, whether the challenged regulation is rationally
connected to a nonpunitive purpose is a “most significant” factor in determining whether
a statute has punitive effect. Smith v. Doe, 538 U.S. at 102, 123 S. Ct. at 1152. With
respect to this factor, Appellant asserts that “WSORA’s broad notification and
14
registration provisions bear no special or rational relationship to any non-punitive
purpose.” We cannot agree. As noted in Femedeer, 227 F.3d at 1253, the purpose of sex
offender registration is to “aid in the prevention, avoidance, and investigation of future
sex offenses.” See also Smith v. Doe, 538 U.S. at 102-03, 123 S.Ct. at 1152 (“the Act has
a legitimate nonpunitive purpose of ‘public safety, which is advanced by alerting the
public to the risk of sex offenders in their community.’”). Appellant’s argument ignores
the readily apparent and widely recognized purposes of sex offender registration statutes.
We conclude WSORA bears a rational connection to the goal of public safety by
providing for identification of individuals convicted of sex offenses, and by making that
information available to law enforcement agencies and the general public. This factor
weighs heavily in favor of a finding that WSORA is not punitive in purpose or effect.
(5) Excessive in scope
[¶29] The final Mendoza-Martinez factor relevant to our analysis is whether the
regulatory scheme is excessive with respect to its nonpunitive purpose. As the Supreme
Court explained in Smith v. Doe, 538 U.S. at 105, 123 S.Ct. at 1154, “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.” The Court found that the Alaska statute met this standard after
noting that “The Ex Post Facto Clause does not preclude a State from making reasonable
categorical judgments that conviction of specified crimes should entail particular
regulatory consequences.” Id. at 103, 123 S.Ct. at 1153.
[¶30] Appellant contends the Act’s mandatory notification requirement, as well as the
publication of a registrant’s personal information on the internet, is excessive in relation
to the Act’s nonpunitive purpose. Appellant cites to the Alaska Supreme Court’s
decision in Doe v. State, 189 P.3d 999 (Alaska 2008), which addressed a state
constitutional challenge to Alaska’s sex offender registration statute following the
Supreme Court’s decision in Smith v. Doe. In that case, the Alaska Supreme Court
determined that Alaska’s statute was excessive in relation to the state’s interest in public
safety before ultimately concluding that the punitive effect of the statute outweighed its
nonpunitive purpose. Id., 189 P.3d at 1018. In finding that the Alaska statute was
excessive, the Court relied heavily on the fact that the statute provided “no mechanism by
which a registered sex offender can petition the state or a court for relief from the
obligations of continued registration and disclosure.” Id. at 1017. The Court also noted
that the statute was excessive because it applied only to those persons convicted of
specified offenses, and excluded individuals “who may have committed the same acts
and may pose threats to the public but who avoided conviction by pleading to a lesser
charge or whose convictions were overturned.” Id.
[¶31] The present case is distinguishable from Doe v. State. In contrast to the Alaska
15
statute at issue in that case, Wyoming’s Act expressly provides a mechanism by which
certain categories of registered sex offenders can petition the district court for relief from
the duty to register. Wyo. Stat. Ann. § 7-19-304(a)(i), (ii). Specifically, Wyo. Stat. Ann.
§ 7-19-304(d) provides:
(d) An offender seeking a reduction in his registration period
as provided in paragraph (a)(i) or (ii) of this section shall
demonstrate to the court that he has maintained a clean record
by:
(i) Having no conviction of any offense for which
imprisonment for more than one (1) year may be
imposed;
(ii) Having no conviction of any sex offense;
(iii) Successfully completing any periods of supervised
release, probation and parole; and
(iv) Successfully completing any sex offender
treatment previously ordered by the trial court or by
his probation or parole agent.
Further, we are not persuaded that Wyoming’s Act is excessive because it applies only to
persons convicted of sex offenses, and not to those individuals who plead to a lesser
charge, whose convictions are overturned, or whose cases are disposed of pursuant to
Wyo. Stat. Ann. § 7-13-301. Wyo. Stat. Ann. § 7-19-301(a)(iii). The legislature’s
identification of individuals convicted of the specified sex offenses constitutes a
reasonable basis for determining potential risks to the public, and does not demonstrate
that the regulatory scheme is “excessive.” We conclude that, in light of the substantial
interests at stake, WSORA’s requirements constitute a reasonable method of achieving
the goal of public safety.
[¶32] Ultimately, we conclude that each of the Mendoza-Martinez factors weighs in
favor of a finding that WSORA imposes only a regulatory burden on convicted sex
offenders. The effects of the Act do not negate the legislature’s intent to impose a
regulatory scheme under WSORA. Accordingly, we hold, consistent with our decision in
Snyder, that the Act does not violate the ex post facto clause of the United States
Constitution.
Wyoming Constitution
[¶33] In Appellant’s second issue, he claims the Act violates the ex post facto clause of
16
the Wyoming Constitution. According to Appellant, the Wyoming Constitution provides
“greater protection” against the passage of ex post facto laws than the United States
Constitution. The State responds that, because Appellant did not raise this issue below,
we should review for plain error. Under its plain error analysis, the State contends that
there is no unequivocal rule of law in Wyoming indicating that the Wyoming
Constitution provides greater protection than the United States Constitution in prohibiting
ex post facto laws.
[¶34] We agree with the State. Both constitutions clearly prohibit the passage of ex post
facto laws. Consequently, in order to find that the Wyoming Constitution provides
“greater” protection, we would be forced to conclude that Wyoming’s definition of an ex
post facto law, as applied to this case, is broader than the definition of that term as it is
used in the United States Constitution. We have no reason to draw such a conclusion,
and Appellant has provided no cogent argument or persuasive authority to support a
claim that Wyoming’s definition of an ex post facto law is broader than the federal
definition. To the contrary, we expressly adopted the Supreme Court’s definition of an ex
post facto law, as one “which makes more burdensome the punishment for a crime, after
its commission,” in Smith v. State, ¶ 55, 199 P.3d at 1068. Accordingly, we find no merit
in Appellant’s claim that the Wyoming Constitution provides greater protection against
ex post facto laws than its federal counterpart.
[¶35] Affirmed.
17