Argued May 8, 2014
Under New Hampshire procedural rule this decision is subject to motion for rehearing, as well as formal revision before publication in the New Hampshire reports.
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Orr & Reno, P.A., of Concord ( William L. Chapman on the brief and orally), and New Hampshire Civil Liberties Union, of Concord ( Gilles Bissonnette on the brief), for the petitioner.
Joseph A. Foster, attorney general ( Dianne H. Martin, attorney, on the brief and orally), for the State.
Michael J. Sheehan, of Concord, by brief, for Citizens for Criminal Justice Reform, as amicus curiae.
Brennan Caron Lenehan & Iacopino, of Manchester ( Michael J. Iacopino, Iryna N. Dore, and Jenna M. Bergeron on the brief), for New Hampshire Association of Criminal Defense Lawyers, as amicus curiae.
LYNN, J. DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred.
The petitioner, John Doe, appeals an order of the Superior Court ( McNamara, J.) granting summary judgment for the respondent, the State of New Hampshire,
on the petitioner's declaratory judgment action, which sought a ruling that RSA chapter 651-B is unconstitutional, as applied to him, because it violates the prohibition against retrospective laws and the Due Process Clause of the New Hampshire Constitution. See RSA ch. 651-B (2007 & Supp. 2014). We affirm in part, reverse in part, and remand.
There are no material facts in dispute. In 1987, the petitioner pleaded guilty to two counts of aggravated felonious sexual assault, see RSA 632-A:2 (Supp. 2014), which occurred in 1983 and 1984. The petitioner was sentenced to two and a half to five years imprisonment, which was deferred for two years. He was also placed on probation for four years. As part of his sentence, the petitioner was required to attend sex counseling, which he did weekly for two years. In August 1990, the petitioner's probation was terminated.
On January 1, 1994, the petitioner became subject to registration as a sex offender. See RSA 632-A:11- :19 (1993) (repealed and recodified at RSA 651-B:1-12 by Laws 1996, 293:2). According to the petitioner, he was not aware of this requirement until 2004, but since then he has complied with all of the registration requirements. As required, the petitioner reports in person to the local police station four times per year to register. The station is one mile from his residence and because the petitioner is disabled, he must use a scooter or take public transportation to get there. When he reports, he does so in the public lobby of the police station. In addition, twice a year a uniformed police officer goes to the petitioner's residence, unannounced, to verify that he resides there.
In 2005, the petitioner planned to move into his son's home. Because of his status as a registered sex offender, residents of his son's neighborhood petitioned the landlord to prevent the petitioner from moving in. The petitioner did not move in with his son. Since an injury in 2006, the petitioner has been permanently disabled. He must use a cane to get around and he must use a scooter to travel any significant distance. Due to his injury and subsequent disability, the petitioner's physicians have recommended that he obtain public housing in order to meet his medical needs. The petitioner sought housing through the Manchester Housing Authority and was initially approved. However, his approval was revoked because of his status as a registered sex offender. His physicians continue to recommend public housing options, but the petitioner is unable to obtain such housing because of his status, about which he is embarrassed to tell his doctors. He currently lives in a single room in a boarding house.
The petitioner sought a declaratory judgment in the superior court that RSA chapter 651-B (the act) is unconstitutional as applied to him because it violates the prohibition against retrospective laws and the Due Process Clause of the New Hampshire Constitution. The parties agreed that there were no facts in dispute, and each side moved for summary judgment. After a hearing, the trial court granted the State's motion for summary judgment. The trial court ruled that the act did not violate the Ex Post Facto Clause because the legislature intended the act to be regulatory,
and any punitive effects of the act did not override this regulatory purpose by the clearest proof. The trial court also stated that it could not find that the act had a punitive effect because the state's laws are presumed constitutional. The court also held that the act did not violate the petitioner's procedural or substantive due process rights. This appeal followed.
On appeal, the petitioner challenges the constitutionality of RSA chapter 651-B, as applied to him, on two grounds. First, he argues that the act violates Part I, Article 23 of the New Hampshire Constitution, which prohibits retrospective laws. Second, he argues that the act violates his procedural due process rights as guaranteed by Part I, Article 15 of the New Hampshire Constitution. We review a trial court's ruling on the constitutionality of a statute de novo. See In the Matter of Bordalo & Carter, 164 N.H. 310, 314, 55 A.3d 982 (2012). The party challenging the constitutionality of a statute bears the burden of demonstrating that it is unconstitutional. New Hampshire Health Care Assoc. v. Governor, 161 N.H. 378, 385, 13 A.3d 145 (2011). " In reviewing a legislative act, we presume it to be constitutional and will not declare it invalid except upon inescapable grounds." Id. (quotation omitted). " [W]hen doubts exist as to the constitutionality of a statute, those doubts must be resolved in favor of its constitutionality." Id. (quotation omitted).
The New Hampshire Legislature first enacted the state's sex offender registry law in 1992 by adding sections 11 through 19 to RSA chapter 632-A. Laws 1992, 213:1. In 1993, the act was amended to apply to any sex offender, regardless of the date of conviction, who " completed his sentence not more than 6 years before the [law's] effective date." Laws 1993, 135:1, III. This version of the statute required all sex offenders to register with the department of safety (department), division of state police (division). Laws 1992, 213:1. For purposes of the act, " sexual offenders" were defined as persons who had been convicted of certain sexual assault offenses. See id. Registrants were required to report their current mailing addresses and places of residence or temporary domiciles to the local law enforcement agencies where they resided. Such report was to be made annually within 30 days after each anniversary of the date of release from custody following conviction or of the date of establishing residence in New Hampshire if convicted outside of the state. Id. Registrants also had to report within 30 days after any change of address or place of residence. Id. If a change in residence placed an offender in the jurisdiction of a different local law enforcement agency, in addition to registering with the new agency within 30 days, the offender also had to give written notice of his new address to the local law enforcement agency with which he last registered within 10 days. Id. Certain offenses required the offender to be registered for life, while others required the offender to be registered for ten years. Id. Negligent failure to register was a violation, and knowing failure to register was a misdemeanor. Id.
The information collected by local law enforcement was forwarded to the state police, who had the task of entering the information in the law enforcement name search (LENS) system. Id. The information was confidential and " available only to law enforcement officials and their authorized designees or to the individual requesting his own record in the LENS system." Id. Unauthorized disclosure of confidential information was a violation. See id.
This version of the act was challenged in State v. Costello, 138 N.H. 587, 643 A.2d 531 (1994). In that case, we held that the act did not violate the prohibition against retrospective laws because " [o]n its face the statute [did] not purport to be punitive but [was] merely regulatory, providing a means for law enforcement agencies in this State to share information regarding the whereabouts of convicted sexual offenders." Id. at 590. This determination was supported by the legislative history of the act. Id. We found that this regulatory purpose was manifest and " any punitive effect of the registration requirement [was] de minimis." Id. at 590-91. Since our decision in Costello, the act has been amended several times. The current act, its requirements, and its effects are significantly different from the act that we considered twenty years ago.
In 1996 the legislature repealed RSA 632-A:11- :19 and enacted a new chapter -- RSA 651-B. Laws 1996, 293:1, 2. In addition to sex offenders, " offenders against children" were now required to register. Laws 1996, 293:1. Under the new act, information provided by registrants was no longer available only to law enforcement. Law enforcement agencies were given the right to notify schools, youth groups, day care centers, summer camps, libraries, or any other organizations where children gathered, about the names, addresses, offenses, methods of approach to victims, and profiles of previous victims of individuals convicted of certain violations. See id. Law enforcement agencies could also provide photographs of offenders to these organizations. Id. Aside from the enumerated organizations, however, the registration information remained confidential, and the organizations that were notified could use the information only to protect children in their charge; the information could not be used to notify the community at large. Id. An offender could prevent an agency from releasing his information if he obtained an order from the superior court, upon a showing, by clear and convincing evidence, that the offender's risk of reoffending was low. See id.
Two years later, the legislature repealed and re-enacted RSA 651-B:7. Laws 1998, 239:2. Under this new section, the registration information became publicly available. Id. The law also required the division to maintain a " separate list" that had to include: (1) names and addresses of registered individuals; (2) offenses for which they were convicted; (3) dates of their convictions; and (4) courts in which they were convicted. Id. The list could also include: (1) offenders' photographs or physical descriptions; (2) dates of offenders' other convictions and courts in which they were convicted; (3) information on the profiles of the victims; and (4) methods of approach utilized by the offenders. Id. The information contained on the " separate list" could become available to interested members of the public " upon request to the local law enforcement agency." Id. However, the act required that a record be
kept of " the parties to whom information from the list has been disclosed." Id.
In 2001, registrants became required to report their mailing addresses and places of residence or temporary domicile within 30 days after each birthday instead of the date of release from custody following conviction. Laws 2000, 177:1, 5. Beginning in 2001, the " separate list" of offenders had to contain information about the offenders' outstanding arrest warrants. Laws 2000, 177:2, 5. In that same year, a knowing failure to register became a class B felony. Laws 2000, 177:4.
In 2002, the legislature granted authority to local law enforcement agencies to photograph, without the registrant's consent, any individual who was required to register. Laws 2002, 241:1. Also in 2002, the department received authority to make the " separate list" of offenders " available to interested members of the public through the use of the department's official public Internet access site." Id.
Beginning in 2003, offenders had to provide photographs taken by law enforcement agencies as part of their registration. Laws 2003, 316:1, 10. The division had to include these photographs on the " separate list" of offenders. Laws 2003, 316:3. The " separate list" was also now required to contain offenders' dates of birth. Id. Local law enforcement was no longer required to identify and maintain a record of the parties to whom the information from the registry was disclosed. Laws 2003, 316:2.
In 2005, offenders who were found not guilty by reason of insanity were made subject to the registration requirements. Laws 2005, 214:3. In 2006, the department was required to register sex offenders and offenders against children upon " receipt of information ... concerning the disposition of any charges against any sex offender or offender against children." Laws 2006, 327:5. These amendments also gave law enforcement agencies the authority to " notify the public that an offender who [was] included on the public list ... [was] residing in the community." Laws 2006, 327:11.
The requirements imposed on registrants were further increased in 2006. Offenders had to register in person. Laws 2006, 327:7. In addition to reporting at their birthdays, registrants had to report six months after their birthdays. Id. The offenders also had to report within 5 days of their birthdays instead of 30 days. Id. Registrants were required to report their name, age, race, sex, date of birth, height, weight, hair and eye color, address of any permanent residence and address of any current temporary residence, within the state or out of the state, mailing address, date and place of any employment or schooling, and vehicle make, model, color, and license tag number. Id. The department was required to verify offenders' addresses by sending a letter, by certified non-forwarding mail, to the offenders twice a year, which the offenders had to sign and return within 10 business days of receipt. Laws 2006, 327:6. The department could choose to deliver the letters by " other means" if the offenders' mailing addresses were post office boxes. Id. The penalties for failure to register were amended: negligent and knowing failure to register remained a misdemeanor and a class B felony, respectively, while repeated knowing failure to register was made a class A felony. Laws 2006, 327:12.
We had occasion to address the registration law again in Horner v. Governor, 157 N.H. 400, 951 A.2d 180 (2008). However, we did not consider the entire act, but rather only RSA 651-B:11, which requires the collection of a sex offender registration fee. Horner, 157 N.H. at 401. We held that it was properly characterized as a fee and not a tax. Id. at 404.
We also held that the fee did not violate the Ex Post Facto Clause of the New Hampshire Constitution because it was not imposed as a punishment, but rather to defray the costs of maintaining the registry, and because the fee was imposed at the time of registration and, therefore, occurred prospectively, not retrospectively. Id.
In 2008, the legislature created three tiers of registrant classification, based upon the crime for which the offender was convicted. See Laws 2008, 334:1. The requirement to register was expanded to include individuals guilty of conspiracy, solicitation, or as accomplices to sex offenses or offenses against children. Id. As of 2008, offenders were required to report: name, aliases, electronic mail addresses, and any internet messaging, chat, or other internet communication name identities; name, address, and date of any employment or schooling, and information about all places he or she generally worked, and any regular routes of travel; any professional licenses or certifications held; state of registration of any vehicle owned or regularly driven by the offender, and the place or places where such vehicles were regularly kept; any alias date of birth used by the offender; social security number; physical description to include identifying marks such as scars and tattoos; telephone numbers for both fixed location and cell phones; passport, travel, and immigration documents; and the name, address, and telephone number of any landlord, if the offender resided in rental property. Laws 2008, 334:4.
The department also was given authority to require that offenders submit: a photograph taken by the law enforcement agency at each required reporting; a DNA sample; a set of major case prints, including fingerprints and palm prints; and a photocopy of any valid driver's license or identification card. Id. Law enforcement did not need the consent of the registrant to obtain this information. Id. The 2008 iteration also permitted law enforcement agencies and the department to verify the address of any offender through in-person contact at the residence of the offender. Laws 2008, 323:11.
In 2010, it became a class A misdemeanor for certain offenders to initiate contact with a victim, except in cases where a prior relationship existed. Laws 2010, ch. 78. Registrants also had to report information about any water or air craft that they operated. Id.
Under the current version of the law, individuals are required to register if " charged with an offense or an attempt, conspiracy, solicitation, or as an accomplice to commit a sex offense or offense against a child" that resulted in one of the following outcomes:
(2) A finding of not guilty by reason of insanity.
(3) An adjudication as a juvenile delinquent and the court at the time of the dispositional hearing finds, pursuant to RSA 169-B:19, that the juvenile is required to register.
(4) An adjudication of juvenile delinquency or its equivalent in another state or territory of the United States if the juvenile is required to register under the laws of that jurisdiction.
(5) An order committing the person as a sexually violent predator ...