Femedeer v. Haun

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 28 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

JON FEMEDEER, a pseudonym,

Plaintiff-Appellee/
Cross-Appellant,
v. Nos. 99-4082 and 99-4093

H.L. “PETE” HAUN, Executive
Director, Utah Department of
Corrections,

Defendant-Appellant/
Cross-Appellee.

Appeal from the United States District Court
for the District of Utah
(D.C. No. 98-CV-572-K)

James H. Beadles, Assistant Attorney General (Jan Graham, Utah Attorney
General with him on the briefs), Salt Lake City, Utah, for Defendant-Appellant-
Cross-Appellee.

Brian M. Barnard (James L. Harris, Jr., with him on the briefs), Utah Legal
Clinic, Salt Lake City, Utah and Stephen C. Clark, American Civil Liberties
Union of Utah, Salt Lake City, Utah, with him on the briefs, for Plaintiff-
Appellee-Cross-Appellant.

Before BALDOCK , EBEL and MURPHY , Circuit Judges.
EBEL, Circuit Judge.

This case primarily concerns whether Utah’s sex offender notification

scheme, which includes posting information about convicted sex offenders on the

Internet, violates the Double Jeopardy and Ex Post Facto Clauses of the U.S.

Constitution when applied to offenders who committed their crimes prior to the

effective date of the enabling legislation. Granting in part Plaintiff’s motion for

summary judgment, the district court ruled that the scheme violated those

constitutional provisions with respect to offenders who had completed their

sentences and probation as of the effective date, but the court rejected Plaintiff’s

other asserted grounds for relief. See Femedeer v. Haun, 35 F. Supp.2d 852, 861

(D. Utah 1999). Defendant appealed the summary judgment order, and Plaintiff

cross-appealed on the scope of relief, the dismissal of his remaining claims, and

the district court’s award of attorney’s fees. We exercise jurisdiction pursuant to

28 U.S.C. § 1291, and we AFFIRM in part, REVERSE in part, and REMAND this

case for further proceedings.

FILING BY PSEUDONYM

Appellee filed this action in the United States District Court for the

District of Utah under the pseudonym of Jon Femedeer, apparently wishing to

prevent widespread disclosure of his status as a sex offender.

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 Proceeding under a pseudonym in federal court is, by all accounts, “an

unusual procedure.” MM. v. Zavaras, 139 F.3d 798, 800 (10th Cir. 1998)

(quotation omitted). Moreover, there does not appear to be any specific statute or

rule supporting the practice. See id. To the contrary, the Federal Rules of Civil

Procedure mandate that all pleadings contain the name of the parties, see Fed. R.

Civ. P. 10(a), and Rule 17(a) specifically states that “[e]very action shall be

prosecuted in the name of the real party in interest.” Fed. R. Civ. P. 17(a).

Nevertheless, we have recognized that there may be exceptional

circumstances warranting some form of anonymity in judicial proceedings. As the

Eleventh Circuit has explained:

Lawsuits are public events. A plaintiff should be permitted to
proceed anonymously only in those exceptional cases involving
matters of a highly sensitive and personal nature, real danger of
physical harm, or where the injury litigated against would be incurred
as a result of the disclosure of the plaintiff’s identity. The risk that a
plaintiff may suffer some embarrassment is not enough.

Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992). We have held that it is proper

to weigh the public interest in determining whether some form of anonymity is

warranted. See Zavaras, 139 F.3d at 802-03.

Here, the public has an important interest in access to legal proceedings,

particularly those attacking the constitutionality of popularly enacted legislation.

And, without Appellee’s identity in the public record, it is difficult to apply legal

principles of res judicata and collateral estoppel. While we appreciate Appellee’s

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interest in attempting to prevent disclosure of his status as a sex offender, such

disclosure has presumably already occurred in the underlying conviction. Further,

Appellee has not established real, imminent personal danger, and the disclosure of

Appellee’s identity in the caption of this lawsuit is not coterminous to the harm he

is seeking to avoid by filing this claim. The posting of his identity and other

personal information on the Internet is likely to be more extensive than is the

exposure resulting from his name on the caption of this lawsuit. Ordinarily, those

using the courts must be prepared to accept the public scrutiny that is an inherent

part of public trials.

Within twenty days, Appellee is ordered to file a sworn affidavit in this

court under seal revealing his true identity. If he takes any further action in this

litigation, the caption shall bear his correct name unless this court has first

granted either a motion to seal the caption or to authorize the matter to proceed by

way of a pseudonym.

BACKGROUND

Plaintiff-Appellee-Cross-Appellant Jon Femedeer brought the present

action under 42 U.S.C. § 1983, alleging that Utah’s recently amended sex

offender registration and notification system violates various federal

constitutional guarantees. Femedeer also included analogous Utah state

constitutional claims in his complaint. The suit was brought against Defendants-

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Appellants-Cross-Appellees N.D. “Pete” Haun, as Executive Director of Utah’s

Department of Corrections, and John and Jane Does representing various

unknown Department of Corrections employees, officers, and agents (collectively,

“Appellants” or “Utah”).

The facts in this case are undisputed. Since 1987, Utah has required

convicted sex offenders 1 to comply with a registration and notification system

upon their release from confinement. Sex offenders have been required to

provide the following information to the Department of Corrections: (1) their

name, including all aliases by which the offender is known; (2) their current

address; (3) a physical description; (4) the type of vehicle driven by the offender;

and (5) a current photograph of the offender. See Utah Code Ann. § 77-27-

21.5(10).

1
The listed sex offenses are incest, a third-degree felony; lewdness
involving a child, a class A misdemeanor; sexual exploitation of a minor, a
second-degree felony; aggravated exploitation of prostitution, a second-degree
felony; child kidnaping, a first-degree felony; and any conviction for soliciting or
conspiring to commit any of the following crimes: unlawful sexual activity with a
minor, a potential third-degree felony; sexual abuse of a minor, a class A
misdemeanor; unlawful sexual conduct with a 16- or 17-year old, a third-degree
felony; rape, a first-degree felony; rape of a child, a first-degree felony; object
rape, a first-degree felony; object rape of a child, a first-degree felony; sodomy, a
class B misdemeanor; forcible sodomy, a first-degree felony; sodomy on a child, a
first-degree felony; forcible sexual abuse, a second-degree felony; sexual abuse of
a child, a second-degree felony; aggravated sexual abuse of a child, a first- degree
felony; and aggravated sexual assault, a first-degree felony.

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 Initially, sex offender registry information was disclosed only to law

enforcement agencies, education licensing authorities, and the Department of

Corrections. In 1996, however, Utah amended the law to allow disclosure of the

information to members of the public who submitted written requests to the

Department of Corrections (the “Department”). The request was required to

indicate that the individual seeking the information was either a victim of a sex

offense or resided in an area where one suspected a sex offender resided. The

Department would only grant the requests of persons living within the offender’s

zip code or an adjoining one. The 1996 amendments specifically stated that they

were not to apply retroactively.

In 1998, Utah’s state legislature again amended the registration and

notification statute. It is these most recent amendments that are the subject of the

current controversy. The first significant change to the law was the elimination of

the requirement that it not be applied retroactively. Thus, on its face, the law now

applies to any sex offender, regardless of when he or she committed the crime.

The second change was the elimination of the geographical restriction on

dissemination of the information, and the addition of the statement that all

information in the registry was now “public.” Utah Code Ann. § 77-27-21.5(13).

Apparently, the impetus for these changes was a significant backlog of

information requests, specifically those of the Boy Scouts of America, which

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wanted to review information on its 100,000 volunteers. Unrestricted by the new

statute, and hoping to alleviate the request backlog, the Department posted the sex

offender registry information on its web site. Access to the information is not

controlled in any way; anyone with access to the Internet can access all of the

registry information, regardless of their place of residence or any other specific

need.

Femedeer moved the district court for summary judgment on several

grounds. His motion was granted in part in an order dated January 22, 1999.

(See Femedeer, 35 F. Supp.2d at 852.) The district court agreed with Femedeer

that the new system constituted “punishment” and therefore violated the Double

Jeopardy and Ex Post Facto clauses with respect to offenders who had completed

their sentences and probation as of July 1, 1998, the effective date of the

amendments. Femedeer, 35 F. Supp.2d at 859. The court explicitly rejected

Femedeer’s Equal Protection and Due Process Clause claims, and dismissed the

remaining claims with prejudice. Id. at 860-61. Femedeer then filed motions for

a new trial and for attorney’s fees. The court denied the former and granted the

latter. Finding that Femedeer was not entirely successful in his suit, the court

reduced the total fee award by sixty percent. Femedeer filed a motion to collect

additional fees for pursuing the initial fees motion, but the court declared that it

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had taken these additional fees into consideration in setting the first percentage

amount. This appeal and cross appeal followed.

DISCUSSION

Utah has appealed the district court’s conclusion that the state’s

notification scheme by posting information on the Internet violates the Ex Post

Facto and Double Jeopardy Clauses as applied to those sex offenders whose

sentences and probation had been completed by the statute’s effective date.

Femedeer has filed a cross-appeal, claiming that the district court erred by

dismissing his remaining claims sua sponte, that the district court incorrectly

determined the applicable time frame regarding the ex post facto violations, and

that the district court erred in calculating its award of attorney’s fees. We shall

first address Utah’s claims on appeal, and then turn to Femedeer’s cross-appeal.

I. Ex Post Facto

We review a challenge to a statute under the Ex Post Facto Clause de novo.

See Lustgarden v. Gunter, 966 F.2d 552, 553 (10th Cir. 1992).

Article I, Section 9 of the U.S. Constitution, commonly known as the Ex

Post Facto Clause, provides that “No . . . ex post facto Law shall be passed.”

Among those laws prohibited by the Ex Post Facto Clause are those that “make[]

more burdensome the punishment for a crime, after its commission.” Collins v.

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Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) (citation

and quotation omitted). Thus, the threshold inquiry for assessing a violation of

the Ex Post Facto Clause in the present case is whether Utah’s Internet

notification program constitutes additional criminal punishment for the crimes

previously committed by those subject to its provisions. See Kansas v. Hendricks,

521 U.S. 346, 371, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). If the notification

measures are deemed civil rather than criminal in nature, they present no ex post

facto violation.

The Supreme Court recently laid out the proper test for distinguishing

between civil and criminal penalties:

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,
including: (1) “[w]hether 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

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 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.

Hudson v. United States, 522 U.S. 93, 99-100, 118 S.Ct. 488, 139 L.Ed.2d 450

(1997) (alterations and additional citations and quotations omitted). Thus, our

first task is to discern whether the intent of the Utah legislature in allowing the

Internet notification program was that the measure operate in a civil or criminal

manner. If we determine that the legislature intended to establish a civil penalty,

we must then inquire whether there exists the “clearest proof” that the measure is

so punitive in purpose or effect as to override the legislature’s intent.

A. Legislative Intent

The intent of the Utah legislature in passing the statute that allowed for

Internet notification was clearly to establish a civil remedy. As the district court

aptly noted,

Legislative intent to enact a nonpunitive measure is ascertainable
from the simple fact that the legislature placed the statute in the civil
code as opposed to the criminal code. See Hendricks, 117 S. Ct. at
2082. Moreover, the statute contains an unambiguous statement of
its purpose in § 77-27-21.5(2), which directs the Department to
collect registry information and make it available to the public “to
assist in investigating sex-related crimes and in apprehending
offenders.” This intent is clearly remedial.

Remedial intent is also evident from the statement the statute’s
sponsor gave in setting the measure before the House of

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 Representatives. Representative Brian Allen explained that the
measure was motivated primarily by concerns of administrative
convenience arising from the Department’s inability to process and
respond to the numerous legitimate requests for registry information
that it had received, including a request to check approximately
100,000 volunteers submitted by the Boy Scouts. The 1998
amendments were simply intended to give the Department flexibility
to adopt an administratively convenient disclosure method.

Femedeer, 35 F. Supp.2d at 856. Femedeer has not challenged this finding on

appeal, and thus any argument he may have to the contrary has been waived.

See Harris v. Champion, 51 F.3d 901, 905 (10th Cir. 1995) Moreover, our review

of the statute on its face supports the conclusion that the legislature’s intent was

indeed to establish a civil remedy.

B. Effect

We must next examine whether there is the “clearest proof” that the

notification scheme is so punitive in purpose or effect as to overcome the

legislature’s civil intent. It is at this point in the analysis that the district court

erred by elevating the excessiveness inquiry to nearly dispositive status to the

exclusion of the many other factors that the Supreme Court has listed for

consideration. Although discussing other factors relevant to the effect of posting

sex offender information on the Internet, the district court’s opinion appears to

ascribe paramount importance to the apparent absence of procedural safeguards

and potentially unlimited disclosure of the registry information. See Femedeer,

35 F. Supp.2d at 858-59.

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 The Supreme Court, however, has specifically disapproved of placing such

overwhelming emphasis on excessiveness. In Hudson, the Court rejected just that

approach which had been taken in United States v. Halper, 490 U.S. 435, 109

S.Ct. 1892, 104 L.Ed.2d 487 (1989), stating that Halper had erroneously

focused on whether the sanction, regardless of whether it was civil or
criminal, was so grossly disproportionate to the harm caused as to
constitute “punishment.” In so doing, the [Halper] Court elevated a
single Kennedy factor–whether the sanction appeared excessive in
relation to its nonpunitive purposes–to dispositive status. But as we
emphasized in Kennedy itself, no one factor should be considered
controlling as they may often point in differing directions.

Hudson, 522 U.S. at 101 (quotation and citation omitted). Rather, we must weigh

each of the relevant Kennedy factors in order to determine the sanction’s effect.

See id. at 99-100.

We turn now to each of those factors.

(1) Affirmative disability or restraint.

Utah’s Internet notification program does not work an affirmative disability

or restraint in the sense traditionally associated with punishment. Although sex

offenders must register certain information with the Department, which

information is then subject to widespread notification, they are nevertheless free

to live where they choose, come and go as they please, and seek whatever

employment they may desire. By way of comparison, the Supreme Court in

Hudson concluded that the payment of a monetary fine, coupled with an indefinite

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ban on working in the banking industry, did not constitute an affirmative

disability or restraint. See Hudson, 522 U.S. at 104 (“[T]he sanctions imposed do

not involve an ‘affirmative disability or restraint,’ as that term is normally

understood. While petitioners have been prohibited from further participating in

the banking industry, this is certainly nothing approaching the infamous

punishment of imprisonment.”) (citation and quotation omitted); see also Cutshall

v. Sundquist, 193 F.3d 466, 474 (6th Cir. 1999) (finding that Tennessee’s sex

offender registration and notification scheme did not impose an affirmative

disability or restraint); Russell v. Gregoire, 124 F.3d 1079, 1092 (9th Cir. 1997)

(reaching the same conclusion with respect to a similar Washington statute). In

the present case, 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.

(2) Historically regarded as punishment.

This factor likewise suggests that public accessability of information

concerning a sex offender’s conviction, including accessability of that

information through the Internet, is not punishment. Although at first glance it

may be tempting to analogize Utah’s notification scheme to rituals of public

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shaming like that depicted in Nathaniel Hawthorne’s Scarlet Letter, such a

comparison would be inapt. As the Third Circuit has recently explained:

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 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.

E.B. v. Verniero, 119 F.3d 1077, 1099-1100 (3d Cir. 1997). 2

2
New Jersey’s notification scheme contained an element of risk assessment
(continued...)

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 Under Utah’s law, registry information is made widely available, but it is

not broadcast in a manner approaching the historical examples of public shaming.

Interested individuals must still make an affirmative effort to retrieve the

information. Internet notification works merely a technological extension, not a

sea change, in our nation’s long history of making information public regarding

criminal offenses. Thus, this factor also weighs against finding Utah’s scheme

punitive in purpose or effect.

(3) Applies on finding of scienter.

Traditionally, sanctions conditioned upon a finding of scienter are more

likely to be considered criminal rather than civil in nature. See Kennedy, 372

U.S. at 168 & n.24. Hudson indicates that we should conduct this inquiry by

determining whether the challenged statute contained a scienter requirement on its

face, rather than by looking at the offenses underlying an individual’s

classification as a sex offender. In Hudson, the Court considered whether

statutory provisions allowing for the imposition of money penalties (12 U.S.C.

§§ 93(b) & 504) and debarment from the banking industry (12 U.S.C.

2
(...continued)
that is absent from Utah’s system. See Verniero, 119 F.3d at 1099. This
distinction, however, is relevant primarily in terms of evaluating the seventh
Kennedy factor, excessiveness. Thus, despite the differences in the New Jersey
and Utah schemes, the Third Circuit’s discussion of whether notification has
historically been regarded as punishment is instructive.

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§ 1818(e)(1)(C)(ii)) were, in effect, criminal punishments. See Hudson, 522 U.S.

at 104-05. Significantly, those provisions authorized their respective sanctions

where the individual had violated various other laws. See 12 U.S.C. §§ 93(b),

504, & 1818(e)(1)(C)(ii). The Court in Hudson, however, apparently limited its

search for a scienter requirement to the face of these provisions without inquiring

into the state of mind required for the underlying violations. See Hudson, 522

U.S. at 104-05. Accordingly, we limit our examination to the face of the Utah

statute. See also Sundquist, 193 F.3d at 475.

An examination of the Utah statute reveals that the notification

requirements do not come into play only on a finding of scienter. Under the

statute, all defined “sex offenders” must register and subject themselves to

notification. See Utah Code Ann. § 77-27-21.5(10). The statute defines “sex

offender” to mean

any person convicted by this state or who enters a plea in abeyance
for violating Section 76-7-102, 76-9-702.5. 76-5a-3, 76-10-1306, or
76-5-301.1 or of committing or attempting, soliciting, or conspiring
to commit a felony, under Title 76, Chapter 5, Part 4, Sexual
Offenses, and any person convicted by any other state or the United
States government of an offense which if committed or attempted in
this state would be punishable as one or more of these offenses.
“Sex offender” also means all persons committed to a state mental
hospital by reason of their mental incapacity and their commission or
alleged commission of one or more offenses listed in this subsection.

Utah Code Ann. § 77-27-21.5(1)(d). Thus, on its face, the statute does not

impose a scienter requirement, and we therefore conclude that this factor as well

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weighs against finding that the statute has the purpose or effect of imposing

criminal punishment. 3

(4) Promote traditional aims of punishment–retribution and deterrence.

This factor cuts both ways. The very existence of this lawsuit is indicative

that many sex offenders would prefer not to have to comply with the statute’s

provisions calling for public disclosure of their crime of conviction, present

location, appearance and the like. Consequently, Utah is perhaps further deterring

them and others from perpetrating sex crimes. The Supreme Court has cautioned,

however, that a sanction’s deterrent effect does not necessarily mean that it must

be classified as criminal. See United States v. Ursery, 518 U.S. 267, 292, 116

S.Ct. 2135, 135 L.Ed.2d 549 (1996) (“[T]hough [these] statutes may fairly be said

to serve the purpose of deterrence, we long have held that this purpose may serve

civil as well as criminal goals.”). We have already concluded that the statute has

civil purposes and effects of deterrence, avoidance and investigation. Thus, the

3
We note that, even were we to conclude that reference to the underlying
sex offenses is appropriate in discerning a scienter requirement, Utah’s scheme
does not apply only on a finding that certain crimes containing intent
requirements have been committed. Rather, it also applies to those persons
“committed to a state mental hospital by reason of their mental incapacity and
their commission or alleged commission of one or more offenses listed in this
subsection.” Utah Code Ann. § 77-27-21.5(1)(d). Thus, some individuals are
classified as sex offenders under the statute absent convictions requiring proof of
intent. Cf. Sundquist, 193 F.3d at 475 (reaching a similar conclusion based on the
observation that certain enumerated sex offenses “do not clearly specify a
culpable mens rea”).

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fact that Utah’s notification scheme attaches additional negative consequences to

sex offenses does not alone render it criminal punishment. There are, therefore,

mixed effects here and we conclude this factor is inconclusive.

(5) Behavior to which it applies is already a crime.

Where behavior triggering the sanction is itself a crime, we are more likely

to infer that the sanction is itself criminal in nature. In United States v. Ward,

448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980), the Supreme Court held

that the fact that the conduct triggering the challenged sanction was criminalized

by another statute “seems to point toward a finding that [the sanction] is criminal

in nature.” Id. at 249-50. Nevertheless, the Court declined to put significant

emphasis on this factor since “[w]e have noted on a number of occasions that

‘Congress may impose both a criminal and a civil sanction in respect to the same

act or omission.’” Id. at 250 (quoting Helvering v. Mitchell, 303 U.S. 391, 399

(1938)).

We reach a similar conclusion in the present case. Here, the triggering

behavior is conviction of, or the alleged commission of (coupled with mental

incapacity), certain sex crimes. This conduct is criminal in nature, although in the

circumstance of mental incapacity, no conviction may have been obtained.

Notwithstanding this association, Utah has sought to use the sex offender registry

to aid in the civil purpose of prevention and investigation of future sex crimes.

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Thus, although the connection between Internet notification and criminal behavior

is clear, we accord only limited weight to this factor in light of the equally strong

connection between notification and legitimate civil purposes.

(6) Whether the “good purpose” is rationally connected to the

consequences.

As is evident from our discussion of the preceding factor, it is clear that the

legitimate civil goals of deterrence, avoidance, and investigation are rationally

connected to Utah’s statute of public access to sex offender registry information,

including access through the Internet. Considering the tremendous physical and

psychological impact sex crimes have upon the victims as well as their harmful

societal effects, concerns of recidivism certainly warrant legislatures’ attention.

We ask only whether the “good purpose” is rationally connected to the

consequences. A rational connection between ends and means clearly exists in

the present case, and we therefore conclude that this factor supports the

conclusion that this statute does not have the effect of providing criminal

punishment.

(7) Excessiveness.

The final Kennedy factor asks whether the sanction “appears excessive in

relation to the alternative purpose assigned.” Hudson, 522 U.S. at 99-100

(citation and quotation omitted). In the present case, the “alternative purpose

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assigned” is to aid in the prevention, avoidance, and investigation of future sex

offenses. In light of the substantial interests at stake, we do not think that

Internet notification imposes excessive costs.

In reaching the opposite conclusion, the district court relied heavily on the

fact that “[r]egistry information posted on the Department’s website will be

available without restriction to a global audience, many members of whom will be

at no risk of encountering the registered offenders.” Femedeer, 35 F. Supp.2d at

859. The district court failed to consider, however, that there will be a

concomitant decline in the global audience’s desire to receive Utah’s registry

information. That is, the farther removed one is from a sex offender’s community

and from Utah generally, the less likely one will be to have an interest in

accessing this particular registry. To a large extent, therefore, the dangers

resulting from widespread availability are negated by the decreasing likelihood

that the information will actually be obtained.

Other states have chosen to incorporate more defined risk assessment

mechanisms into their sex offender registry and notification schemes. See, e.g.,

Gregoire, 124 F.3d at 1082 (upholding Washington’s scheme conditioning

notification upon evidence of an offender’s threat to the community); Doe v.

Pataki, 120 F.3d 1263, 1268, 1285 (2d Cir. 1997) (upholding New York’s three-

tiered notification scheme); Verniero, 119 F.3d at 1111 (upholding New Jersey’s

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three-tiered notification scheme). However, a statute is not necessarily excessive

for purposes of this Kennedy factor simply because a state has perhaps not

achieved a perfect fit between ends and means.

In sum, the considerable assistance Internet notification will offer in the

prevention, avoidance and investigation of these serious and damaging crimes

justifies the means employed. We therefore conclude that Utah’s notification

scheme is not excessive in relation to this legitimate purpose.

In total, only the fifth Kennedy factor even somewhat suggests that the

Internet notification scheme constitutes criminal punishment. The equivocal

support of this factor, however, does not come even close to the “clearest proof”

necessary to overcome the civil intent of Utah’s legislature. Accordingly, we

conclude that Utah’s notification scheme imposes only a civil burden upon sex

offenders and therefore does not run afoul of the Ex Post Facto Clause.

II. Double Jeopardy

We review Femedeer’s claims under the Double Jeopardy Clause de novo.

See United States v. Pearson, 203 F.3d 1243, 1267 (10th Cir. 2000).

The Double Jeopardy Clause of the Fifth Amendment provides: “nor shall

any person be subject for the same offence to be twice put in jeopardy of life or

limb.” U.S. Const. Amend. V. “The Clause serves the function of preventing

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both successive punishments and successive prosecutions. The protection against

multiple punishments prohibits the Government from punishing twice, or

attempting a second time to punish criminally for the same offense.” Ursery, 518

U.S. at 273 (internal quotations and citations omitted).

For the reasons stated above, we similarly conclude that Utah’s scheme of

public disclosure of sex offender information does not constitute criminal

punishment under the Double Jeopardy Clause. See Hendricks, 521 U.S. at 369-

71. As a result, we also conclude that the scheme presents no double jeopardy

violation. 4

III. Cross Appeal

Femedeer’s sole surviving complaint on cross appeal is that the district

court erred in dismissing his remaining claims sua sponte. We have held,

however, that “[a] court may grant summary judgment sua sponte ‘so long as the

losing party was on notice that [it] had to come forward with all of [its]

4
Because we have determined that Utah’s notification scheme violates
neither the Ex Post Facto Clause nor the Double Jeopardy Clause, we need not
address Femedeer’s argument on cross appeal that the district judge improperly
determined which sex offenders should be exempt under the Ex Post Facto Clause
from Utah’s new notification law. Likewise, our reversal of the district court’s
partial grant of summary judgment to Femedeer requires that we remand the issue
of attorney’s fees for reevaluation in light of the fact that Femedeer is no longer a
prevailing party in this litigation.

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evidence.’” Sports Racing Servs. v. Sports Car Club of America, Inc., 131 F.3d

874, 892 (10th Cir. 1997) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 326

(1986)).

In disposing of this case, the district court granted summary judgment to

Femedeer on the double jeopardy and ex post facto claims. See Femedeer, 35 F.

Supp.2d at 859. The court also considered and rejected his arguments under the

Equal Protection and Due Process Clauses of the Fourteenth Amendment, both of

which Femedeer presented in his motion for summary judgment. See id. at 860-

61. The court then stated that “Plaintiff’s claims are otherwise dismissed with

prejudice.” Id. at 861. Femedeer argues that this dismissal deprived him of an

opportunity to present additional claims advanced in his complaint but not briefed

in his summary judgment motion. We find no reversible error, however, in the

district court’s dismissal of these additional claims.

Femedeer argues that the district court should not have dismissed his claims

under the Utah Constitution, but instead should have declined to exercise

supplemental jurisdiction and allowed him to pursue these claims in state court.

It appears, however, that the Utah claims Femedeer alleged in his complaint are

analogues to their federal constitutional counterparts. Compare Utah Const. Art.

I, §§ 7, 9, 18, 24 with U.S. Const. Art. I, § 9, Amends. 8, 14. Furthermore, the

state of Utah has represented that there are no material differences between these

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state and federal constitutional provisions for present purposes. Our comparison

of these provisions supports the state’s view, and Femedeer does not challenge

this characterization. Accordingly, Femedeer was not prejudiced by the dismissal

of his state constitutional claims because the analogous federal claims were, with

one exception, properly addressed on the merits. 5

The lone exception appears to be Femedeer’s claim that Utah’s notification

scheme constitutes cruel and unusual punishment in violation of the Eighth

Amendment to the U.S. Constitution and Article I, § 9 of the Utah Constitution.

The district court did not separately discuss this potential argument in its

disposition of this case. On appeal to this court, however, Femedeer says only

that his “remaining claims” were improperly dismissed without specifically

identifying the remaining federal claims. Femedeer has failed to explain how the

evidence and arguments he would present in support of the Eighth Amendment

claim would have differed from the evidence presented to the district court in

support of his other federal constitutional claims. Rather, Femedeer summarily

states “the district court erred by dismissing sua sponte several of Appellee’s

claims with prejudice.”

5
With respect to Femedeer’s claim under the Bill of Attainder Clause
found in Article I, § 9 of the U.S. Constitution, we agree with the district court
that Femedeer waived his argument on that point by improperly collapsing it with
the Ex Post Facto and Double Jeopardy Clauses. See Femedeer, 35 F. Supp.2d at
855 n.1.

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 On appeal, however, parties must do more than offer vague and

unexplained complaints of error. “[P]erfunctory complaints [that] fail to frame

and develop an issue [are not] sufficient to invoke appellate review.” Murrell v.

Shalala, 43 F.3d 1388, 1389 n. 2. (10th Cir. 1994); see also Hartmann v.

Prudential Ins. Co. of America, 9 F.3d 1207, 1212 (7th Cir. 1993) (“Failure to

press a point (even if it is mentioned) and to support it with proper argument and

authority forfeits it . . . .”); United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990) (noting the “settled appellate rule that issues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation, are deemed

waived”). Thus, we conclude that Femedeer’s perfunctory references are

insufficient to resurrect an argument that the district court failed to give sufficient

notice that his cruel and unusual punishment claims would be disposed of as well.

In sum, we find that the district court did not commit reversible error by

dismissing all of the claims presented by Femedeer’s complaint.

CONCLUSION

We conclude that the district court erred in determining that Utah’s Internet

notification scheme violated the Ex Post Facto and Double Jeopardy Clauses of

the U.S. Constitution. Accordingly, the district court’s partial grant of summary

judgment to Femedeer is REVERSED. The district court’s dismissal of

Femedeer’s remaining claims with prejudice is AFFIRMED. The district court’s

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award of attorney’s fees is VACATED and the case is REMANDED for further

proceedings consistent with this opinion.

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