John Doe XLVI v. Stephanie Anderson

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2015 ME 3
Docket: Ken-14-5
Argued: September 10, 2014
Decided: January 13, 2015

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.*

JOHN DOE XLVI

v.

STEPHANIE ANDERSON et al.

JABAR, J.

[¶1] John Doe XLVI appeals from a judgment of the Superior Court

(Kennebec County, Murphy, J.) denying his request for declaratory relief and a

temporary restraining order. Doe argues that Maine’s Sex Offender Registration

and Notification Act of 1999 (SORNA), 34-A M.R.S. §§ 11201 to 11256 (2012),1

as applied to him violates the Bill of Attainder, Due Process, and Separation of

Powers Clauses of the Maine Constitution.2

*
Silver, J., sat at oral argument and participated in the conferencing process but retired before this
opinion was issued.
1
Although SORNA has been amended since Doe received notice of the duty to register in 2012, those
amendments are not relevant here. See, e.g., P.L. 2013, ch. 133, § 32 (effective Oct. 9, 2013) (codified at
34-A M.R.S. § 11203(1-A) (2014)).
2
Although we agreed in State v. Letalien that the constitutionality of the retroactive application of
SORNA “depends on a facial examination of the statute, and not on an as applied analysis,” we concluded
that SORNA “impose[d] an ex post facto punishment as to offenders sentenced in the years before [its]
effective date . . . for whom registration was a required part of their sentence and who were subsequently
made subject to the more burdensome requirements of SORNA” after its effective date. 2009 ME 130,
¶ 1, 985 A.2d 4 (emphasis added).
2

[¶2] The trial court determined that as applied to Doe SORNA is not

punitive, and rejected Doe’s bill of attainder claim without considering the lack of

a judicial trial and specificity, the other elements of a bill of attainder challenge.

We conclude that SORNA is punitive as to offenders who were not sentenced to

comply with SORNA when SORNA registration was part of sentencing and who

were subsequently subjected to SORNA registration when their earlier offenses

were added to the statutory list of sex offenses and registration was removed from

sentencing. We therefore vacate the judgment with respect to the bill of attainder

issue. Because the trial record does not contain sufficient facts regarding the

specificity element of Doe’s bill of attainder claim, we remand for further

consideration.

I. BACKGROUND

[¶3] In January 2003, Doe pleaded guilty to and was convicted of

possession of sexually explicit material (Class D), 17 M.R.S.A. § 2924(2)

(Supp. 2002)3 and was sentenced to 364 days’ imprisonment, with all but

seventy-two hours suspended, and one year of probation.

[¶4] When Doe was convicted, SORNA was part of the sentencing process.

At the time of Doe’s sentence, the Maine Criminal Code, in a section titled

3
Title 17 M.R.S.A. § 2924 has since been repealed and the offense of possession of sexually explicit
materials has been re-codified in its current location at 17-A M.R.S. § 284. P.L. 2003 ch. 711, §§ B-1,
B-12 (effective July 30, 2004).
 3

“Authorized sentences,” required sentencing courts to order defendants who were

convicted of sex offenses to comply with SORNA: “As part of a sentence, the

court shall order every natural person who is a convicted sex offender or sexually

violent predator as defined under Title 34-A, section 11203 to satisfy all

requirements set forth in the Sex Offender Registration and Notification Act of

1999.” 17-A M.R.S.A. § 1152(2-C) (Supp. 2002).4 The section of SORNA

regarding an offender’s duty to register likewise provided, “The court shall

determine at the time of sentencing if a defendant is a sex offender or a sexually

violent predator. A person who the court determines is a sex offender or a sexually

violent predator shall register according to this subchapter.” 34-A M.R.S.A.

§ 11222(1) (Supp. 2002).5

[¶5] Doe’s Judgment and Commitment form contained a box that the

sentencing judge was required to check if the conviction was for an offense

requiring SORNA registration. Because possession of sexually explicit material

was not then a sex offense as defined by 34-A M.R.S.A. § 11203 (Supp. 2002),6

4
Title 17-A M.R.S.A. § 1152(2-C) has since been repealed. P.L. 2009, ch. 365, § A-3 (effective
Sept. 12, 2009).
5
Title 34-A M.R.S.A. § 11222(1) has since been amended. P.L. 2009, ch. 365, § B-15 (effective
Sept. 12, 2009) (codified at 34-A M.R.S. § 11222(1) (2014)).
6
Since Doe was sentenced, 34-A M.R.S.A. § 11203 has been amended numerous times, most notably,
for the purposes of the present case, in 2003. See P.L. 2003, ch. 371, § 2 (effective Sept. 13, 2003)
(codified as amended at 34-A M.R.S.A. § 11203(6) (Supp. 2003)).
4

the sentencing court did not check the box on Doe’s Judgment and Commitment

form and Doe was not ordered to comply with SORNA.

[¶6] In September 2003, possession of sexually explicit material was added

to the list of sex offenses, a conviction for which required the defendant to register.

P.L. 2003, ch. 371, § 2 (effective Sept. 13, 2003) (codified as amended at 34-A

M.R.S.A. § 11203(6) (Supp. 2003)).7 In July 2004, a 2003 amendment to the

Maine Criminal Code’s sentencing provisions regarding sex offenders took effect.8

P.L. 2003, ch. 711, § B–13 (effective July 30, 2004). After the amendment’s

effective date, the sentencing court was to order compliance with SORNA’s

registration provisions “[a]t the time” of sentencing rather than “as part of” a

sentence. See id.

[¶7] In July 2006, Doe received a letter from the Maine State Police

advising him that he was required to register. The following month, he responded

with a letter stating that he did not believe he was required to register because there

had been no “triggering event” requiring registration, such as a court’s

determination of the duty to register. After learning of Doe’s objection, the Office

7
Although 34-A M.R.S.A. § 11203(6) has been amended since 2003, those amendments are not
relevant in the present case. See e.g., P.L. 2005, ch. 423, § 5 (effective Sept. 17, 2005) (codified at
34-A M.R.S. § 11203(6)(C) (2014)).
8
This amendment changed the sentencing provisions relating to sex offender registration that had
been in effect since 1996. See P.L. 1995, ch. 680, § 4 (effective July 4, 1996) (codified at 17-A M.R.S.A.
§ 1152(2-C) (Supp. 1996)).
 5

of the Attorney General sent a letter dated January 10, 2007, to the State Bureau of

Identification stating that it would recommend an amendment to SORNA if those

convicted after 1999 but before 2003 fell into a “gap in the duty to register.”

[¶8] In 2009, 17-A M.R.S. § 1152(2-C) was repealed by P.L. 2009, ch. 365,

§ A-3 (effective Sept. 12, 2009). This law amended the Maine Criminal Code,

repealing “from the sentencing provisions the directive that a court order a person

convicted of a sex offense . . . to satisfy all requirements of [SORNA].” L.D. 1157

Summary (124th Legis. 2009). It also amended SORNA to require that a court

“notify the offender at the time of sentence of the duty to register[,]” and to

provide that an offender’s duty to register is triggered by receiving notice from a

court, the Department of Corrections, the State Bureau of Identification, or a law

enforcement agency. P.L. 2009, ch. 365, § B-15 (effective Sept. 12, 2009).9 These

changes clarified that “the Legislature determines that a duty to register exists

based on the conviction,” “that a duty to register is not triggered by a court

determination, but by and upon notification,” “and that the court’s duty is only to

notify the person of that duty.” L.D. 1157 Summary (124th Legis. 2009).

[¶9] In February 2012, Doe received a second notice of the duty to register

from the State Bureau of Identification. In April 2012, Doe filed a complaint for a

declaratory judgment and temporary restraining order to enjoin the State from

9
See also 34-A M.R.S. §§ 1001(8), 11203(1) (defining “Department” and “Bureau”).
6

pursuing criminal charges against him for failing to register. In his complaint, Doe

alleged that SORNA was an unconstitutional ex post facto law and bill of attainder,

and that applying it to him violated the Separation of Powers Clause and his

substantive and procedural due process rights. At a hearing on May 3, 2012, the

Superior Court rejected Doe’s ex post facto challenge. On October 29, 2013, the

court entered an order rejecting Doe’s due process, separation of powers, and bill

of attainder claims. Following the court’s denial of his motion to reconsider, Doe

timely appealed.10 See M.R. App. P. 2(b).

II. DISCUSSION

[¶10] Doe argues that applying SORNA’s registration requirements to him

violates the Bill of Attainder, Separation of Powers, and Due Process Clauses of

the Maine Constitution. We are not persuaded by Doe’s arguments regarding due

process and separation of powers and do not discuss them further. Our discussion

is confined to an analysis of whether SORNA is an invalid bill of attainder. In this

regard, Doe specifically contends that because the court did not impose SORNA

registration obligations on him when he was sentenced, imposing them on him now

violates the Bill of Attainder Clause of the Maine Constitution.11

10
Doe did not appeal the court’s rejection of his ex post facto challenge. Because that issue is not
before us, we do not address it.
11
The federal prohibition against bills of attainder is indistinguishable from the state prohibition
against bills of attainder; the standard for determining whether a law constitutes a bill of attainder is the
 7

A. Standard of Review

[¶11] We review challenges to the constitutionality of a statute de novo.

Doe I v. Williams, 2013 ME 24, ¶ 11, 61 A.3d 718. In so doing, we presume that a

statute is constitutional and look for a reasonable interpretation that comports with

that presumption. Id. The challenger bears the burden of overcoming this

presumption by proving the statute’s unconstitutionality. State v. Letalien,

2009 ME 130, ¶ 15, 985 A.2d 4.

B. Bill of Attainder Analysis

[¶12] Pursuant to article I, section 11 of the Maine Constitution, “The

Legislature shall pass no bill of attainder [or] ex post facto law . . . .” See also U.S.

Const. art. I, § 9, cl. 3 (containing the same prohibitions). For purposes of both the

federal and state constitutions, a bill of attainder is (1) a legislative act that applies

specifically to named individuals or to identifiable members of a group, and

(2) inflicts punishment upon them (3) without a judicial trial. DaimlerChrysler

Corp. v. Exec. Dir., Me. Revenue Servs., 2007 ME 62, ¶ 35, 922 A.2d 465; United

States v. Lovett, 328 U.S. 303, 315 (1946).

same under both the federal and state constitutions. See DaimlerChrysler Corp. v. Exec. Dir., Me.
Revenue Servs., 2007 ME 62, ¶¶ 35-36, 922 A.2d 465 (adopting the standard used by the U.S. Supreme
Court in Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 474-76 (1977)). The Superior Court correctly
identified the standard in its order denying Doe’s request for relief. Doe 46 v. Anderson,
KENSC-CV-12-124 at 2 (Me. Super. Ct., Ken. Cnty., Oct. 29, 2013).
8

[¶13] Although it is listed as the second element, we begin our analysis by

considering whether requiring Doe to register pursuant to SORNA constitutes

“punishment” within the meaning of the Bill of Attainder Clause.

1. Punishment

[¶14] A law imposes punishment for bill of attainder purposes if it is

motivated by a legislative intent to punish, does not serve any legitimate

nonpunitive purpose, or results in a deprivation of protected liberties that falls

within the historical meaning of legislative punishment. DaimlerChrysler Corp.,

2007 ME 62, ¶ 35, 922 A.2d 465; Selective Serv. Sys. v. Minnesota Pub. Research

Grp., 468 U.S. 841, 852 (1984); Nixon v. Adm’r of Gen. Servs., 433 U.S. 425,

474-78 (1977). This “functional” analysis is similar to the “intent-effects” test

used to define punishment for ex post facto purposes. See State v. Haskell, 2001

ME 154, ¶ 8, 784 A.2d 4 (describing the “intent-effects” test and citing Kennedy v.

Mendoza-Martinez, 372 U.S. 144 (1963)).

[¶15] Both the “functional” analysis and the “intent-effects” test of

punishment include an examination of legislative intent as well as an analysis of

the statute’s purposes and effects.12 Here, we can see no reason to distinguish

12
Indeed, these two inquiries constitute the common thread among the various tests for punishment.
See United States v. Usery, 518 U.S. 267, 277-78 (1996) (articulating a two-part test for punishment
under the Double Jeopardy Clause that considers both intent and effects); Nixon, 433 U.S. at 475
(applying an intent test and citing the Mendoza-Martinez factors in the bill of attainder context); Artway v.
Attorney Gen. of N.J., 81 F.3d 1235, 1253-54 (3d Cir. 1996) (articulating a three-part test to identify
 9

between the Bill of Attainder and Ex Post Facto Clauses with respect to the

definition of punishment. See Artway v. Attorney Gen. of N.J., 81 F.3d 1235, 1247

(3d Cir. 1996) (reaching the same conclusion). In light of this determination and

our experience applying the “intent-effects” test to SORNA in the ex post facto

context, we use the “intent-effects” framework to analyze Doe’s challenge.13

a. Legislative Intent

[¶16] To identify punishment under the “intent-effects” test, we first

construe the statute to determine whether the legislature intended its provisions to

be civil or criminal. Haskell, 2001 ME 154, ¶ 8, 784 A.2d 4. If the legislature

indicates its intent to create a civil statute, we then consider, notwithstanding the

legislature’s stated intent, whether the statute’s purposes or effects are so punitive

as to override the legislature’s stated intent. Id. Out of deference to the

legislature’s intent, we have required a party challenging the statute to provide the

punishment for purposes of the Ex Post Facto, Bill of Attainder, and Double Jeopardy Clauses, that
“looks to the legislature’s subjective purpose in enacting the challenged measure, its ‘objective’ purpose
in terms of proportionality and history, and the measure’s effects”); Doe v. Kelley, 961 F.Supp. 1105,
1108 (W.D. Mich. 1997) (stating that there is “no universal test for determining whether state action
constitutes punishment” and applying a “totality of the circumstances” test that focuses on “(1) legislative
intent, (2) designation of the legislation, (3) historical treatment of analogous measures, and (4) effects of
the legislation”).
13
“Although the Supreme Court warned against lifting a test for punishment from one constitutional
provision and applying it to another, [it has] applied the ‘intent-effects’ test . . . to both the Double
Jeopardy and Ex Post Facto Clauses.” State v. Haskell, 2001 ME 154, ¶ 9 n.7, 784 A.2d 4; see also Smith
v. Doe, 538 U.S. 84, 97 (2003) (explaining that “the Mendoza-Martinez factors are designed to apply in
various constitutional contexts” and have their “origins in cases under the Sixth and Eighth Amendments,
as well as the Bill of Attainder and the Ex Post Facto Clauses”); Myrie v. Comm’r, N.J. Dept. of Corr.,
267 F.3d 251, 256 (3d Cir. 2001) (applying the “intent-effects” test to the Double Jeopardy, Ex Post
Facto, and Bill of Attainder Clauses).
10

“clearest proof” that the scheme is so punitive in purpose or effect as to transform

it into a punishment. Id. ¶¶ 8, 10, 13; Letalien, 2009 ME 130, ¶ 31, 985 A.2d 4;

State v. Cosgro, 2008 ME 64, ¶ 2, 945 A.2d 1221.

[¶17] Here, the Maine Legislature expressed its objective in SORNA’s text,

which states that SORNA’s purpose is “to protect the public from potentially

dangerous registrants and offenders by enhancing access to information concerning

those registrants and offenders.” 34-A M.R.S. § 11201 (2014). In light of this

express statement of legislative intent that SORNA is civil in nature, we proceed to

analyze SORNA’s effects under the Mendoza-Martinez factors.

b. The Mendoza-Martinez Factors

[¶18] In determining whether the effects of SORNA are so punitive as to

override the Legislature’s stated civil intent, we use the seven factors articulated by

the U.S. Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), as

“guideposts.” Haskell, 2001 ME 154, ¶ 8, 784 A.2d 4. These factors are (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 assignable for it”; and
 11

(7) “whether it appears excessive in relation to the alternative purpose assigned.”

Mendoza-Martinez, 372 U.S. at 168-69.

[¶19] We have addressed the issue of whether SORNA is punitive in effect,

notwithstanding the Legislature’s expressed intent to create a civil sanction, in two

recent cases—Letalien and Williams—both of which challenged SORNA’s

constitutionality on ex post facto grounds. See Letalien, 2009 ME 130, ¶¶ 26-63,

985 A.2d 4; Williams, 2013 ME 24, ¶¶ 22-51, 61 A.3d 718. These decisions are in

agreement with respect to Mendoza-Martinez factors three through seven.

Letalien, 2009 ME 130, ¶¶ 44-55, 985 A.2d 4; Williams, 2013 ME 24, ¶¶ 36-44, 61

A.3d 718. They conclude that SORNA’s requirements are not triggered only upon

a finding of scienter, that SORNA has a nonpunitive public safety purpose, and

that the third and sixth factors thus weigh against finding SORNA punitive.

Letalien, 2009 ME 130, ¶¶ 44, 50, 985 A.2d 4; Williams, 2013 ME 24, ¶¶ 36, 42,

61 A.3d 718. They treat factors four (whether SORNA promotes the traditional

aims of punishment) and seven (whether SORNA is excessive in relation to its

nonpunitive purpose) as neutral. Letalien, 2009 ME 130, ¶¶ 45-46, 55, 985 A.2d 4;

Williams, 2013 ME 24, ¶¶ 40, 44, 61 A.3d 718. And, because the behavior to

which SORNA applies is already a crime, the decisions conclude that factor five

supports a finding that SORNA is punitive. Letalien, 2009 ME 130, ¶ 48,

985 A.2d 4; Williams, 2013 ME 24, ¶ 41, 61 A.3d 718.
12

[¶20] Although their conclusions differ with respect to the first

Mendoza-Martinez factor,14 Williams, 2013 ME 24, ¶¶ 30-33, 61 A.3d 718, the

pivotal issue in both decisions was the second factor—whether SORNA’s

requirements have historically been considered punishment.

[¶21] In Letalien we considered the constitutionality of retroactively

applying SORNA’s amended and enhanced reporting requirements to Letalien,

who had been sentenced to comply with less stringent reporting requirements

under an earlier version of SORNA. Letalien, 2009 ME 130, ¶¶ 5-8, 985 A.2d 4.

In analyzing whether retroactive application of SORNA’s enhanced requirements

was punitive, we utilized the “intent-effects” test and the Mendoza-Martinez

factors. Id. ¶¶ 30-62. We held that application of SORNA’s amended, enhanced

reporting requirements to Letalien was punitive for ex post facto purposes.

Id. ¶ 62.

14
The first Mendoza-Martinez factor calls for an assessment of whether SORNA’s registration
requirements involve an “affirmative disability or restraint.” Kennedy v. Mendoza-Martinez, 372 U.S.
144, 168 (1963). When Letalien was decided, SORNA required registrants to report to law enforcement
agencies in person every ninety days for fingerprinting, photographing, and verification of identity and
location of home, school, and employment. Letalien, 2009 ME 130, ¶ 37, 985 A.2d 4. We concluded that
these procedures constituted “a form of significant supervision by the state” and that the first
Mendoza-Martinez factor therefore indicated that SORNA was punitive in effect. Id. By the time
Williams was decided, SORNA registrants were required to report in person only once every five years.
Doe I v. Williams, 2013 ME 24, ¶ 31, 61 A.3d 718. We concluded that this procedure did not constitute a
significant restraint or disability and that the first Mendoza-Martinez factor thus weighed against finding
SORNA punitive in effect. Id. ¶ 33. In this case, if SORNA’s registration requirements were imposed
upon Doe, the nature of his obligations would be the same as or similar to those considered in Williams.
See 34-A M.R.S. § 11222 (2014). The registration obligations would thus fail to indicate that the sanction
is punitive in effect for purposes of the first Mendoza-Martinez factor. Williams, 2013 ME 24, ¶ 33, 61
A.3d 718.
 13

[¶22] The Letalien decision centered on our conclusion under the second

Mendoza-Martinez factor that retroactive imposition of SORNA registration

obligations has historically been regarded as punishment. Id. ¶¶ 57, 59-61; see

also Williams, 2013 ME 24, ¶ 46, 61 A.3d 718. In analyzing the second factor, we

looked to the unique history of SORNA and its incorporation into the criminal

sentencing process. Letalien, 2009 ME 130, ¶¶ 39, 42-43, 985 A.2d 4. We

determined that “when sex offender registration is made a part of an offender’s

criminal sentence, it necessarily constitutes a part of the punishment administered

by the State in response to that offender’s criminal conviction.”15 Id. ¶ 61.

Because an order to comply with SORNA’s requirements was “an integral part of

the sentencing process” when Letalien was sentenced, id. ¶ 42, we concluded that

application of SORNA’s enhanced reporting requirements to him after sentencing

“modified and enhanced a portion of his criminal sentence,” and that this sentence

enhancement was historically considered punishment, id. ¶ 43.

[¶23] In Williams, we considered the constitutionality of retroactively

applying SORNA’s registration requirements to multiple defendants who were

sentenced before the enactment of a sex offender registration law. 2013 ME 24,

15
See also State v. Johnson, 2006 ME 35, ¶¶ 12-14, 894 A.2d 489 (concluding that SORNA
registration was part of Johnson’s criminal sentence in 2000, and that the sentencing court’s improper
designation of Johnson as a sex offender rather than a sexually violent predator could only be corrected
pursuant to Maine Rule of Criminal Procedure 35(a), notwithstanding the fact that SORNA registration
had been removed from the sentencing process by an amendment effective in 2004).
14

¶ 28, 61 A.3d 718. We concluded that the retroactive application was not punitive

for ex post facto purposes, id. ¶ 51, distinguishing our holding in Letalien based

upon our analysis under the second Mendoza-Martinez factor, id. ¶ 35. “[SORNA]

of 1995, which affected Letalien, made registration an integral part of the

sentencing process and, thus, the resulting sentence. [The version of SORNA

applied to the defendants in Williams], on the other hand, [was] not tied to the

sentencing process; this is the crucial distinction upon which Letalien was based.”

Id. (quotation marks omitted). In light of this distinction, we determined that the

second Mendoza-Martinez factor weighed against concluding that SORNA was

punitive. Id.

[¶24] The instant case is closer to Letalien than Williams. When Doe was

sentenced, there was a sex offender law in effect and SORNA was an “integral part

of the sentencing process.” See id. The Williams Court recognized this factual

difference as significant and used it to distinguish Letalien from the defendants in

Williams, who were convicted before the enactment of a sex offender law, and for

whom SORNA was not part of sentencing. Id.

[¶25] At the time of Doe’s conviction, SORNA was in effect and trial

judges imposed SORNA’s registration requirement as part of the sentencing

process for every person convicted of a sex offense. Doe was not ordered to

comply with SORNA’s registration requirement at sentencing because the
 15

Legislature had not included his crime—possession of sexually explicit material—

in the list of sex offenses. See 34-A M.R.S.A. § 11203 (Supp. 2002).16 If Doe’s

crime had been identified as a sex offense by the Legislature, the sentencing court

would have ordered him to comply with SORNA’s registration requirements as

part of his criminal sentence.

[¶26] When the statutory definition of sex offense was amended in

September 2003, possession of sexually explicit material was retroactively added

to the list of offenses with sentences that required SORNA registration. See

P.L. 2003, ch. 371, § 2 (effective Sept. 13, 2003) (codified as amended

at 34-A M.R.S.A. § 11203(6) (Supp. 2003)).17 After SORNA registration was

removed from sentencing in 2004, see P.L. 2003, ch. 711, § B–13 (effective

July 30, 2004), Doe received notice that he was required to register.

[¶27] Like Letalien, Doe was convicted at a time when SORNA registration

requirements were an “integral part of the sentencing process.” Letalien, 2009 ME

130, ¶ 42, 985 A.2d 4. Because Doe’s sentence did not include a SORNA

registration requirement, the later imposition of registration requirements caused

his original sentence to be “modified and enhanced.” See id. ¶ 43.

16
See supra n.6 (discussing later amendments to 34-A M.R.S.A. § 11203).
17
See supra n.7 (discussing later amendments to 34-A M.R.S.A. § 11203(6)).
16

[¶28] Each of the seven Mendoza-Martinez factors is relevant to the

determination of whether a statute is punitive. Id. ¶ 32. Those factors are not

subject to a “precise mathematical formulation,” but rather are weighed

qualitatively. Id. (quotation marks and internal punctuation omitted). For the

reasons set out above, we conclude that in the present case, retroactive imposition

of SORNA registration requirements on Doe is a sanction historically regarded as

punishment, and that the second Mendoza-Martinez factor thus weighs in favor of

finding the sanction punitive in effect. We have noted the effect of the first and the

third through seventh factors as they bear on the Mendoza-Martinez analysis here.

However, a retroactive increase in the burdens of Doe’s sentence carries

substantial weight in our overall analysis under the Mendoza-Martinez framework.

Having considered all of the Mendoza-Martinez factors, we conclude that

retroactive application of SORNA’s registration requirements to Doe is punitive in

effect.

2. Lack of a Judicial Trial

[¶29] In addition to establishing that the legislative act inflicted punishment,

a party challenging a statute under the Bill of Attainder Clause must prove the

elements of the statute’s application to a specific individual or group, and the lack

of a judicial trial. DaimlerChrysler Corp., 2007 ME 62, ¶ 35, 922 A.2d 465. The

imposition of punishment without trial “violates fundamental constitutional
 17

principles” because it allows the legislature to “circumvent[] the judicial process.”

Doe v. Weld, 954 F.Supp. 425, 430 (D. Mass. 1996) (quotation marks omitted).

[¶30] Here, the duty to comply with SORNA was clearly imposed on Doe

without a judicial trial. Doe did not have a trial but he did plead guilty to one

charge of possession of sexually explicit material. After that plea, which resulted

in his conviction, Doe was sentenced, but his sentence did not include a

registration obligation because, at the time Doe was sentenced, the Maine

Legislature had not deemed his crime to be a sex offense. The legislative

amendment to SORNA that purported to change Doe’s sentence by imposing

registration obligations on him occurred without a judicial determination that Doe

was a sex offender and without a judicial order incorporating the registration

obligation into his criminal sentence.

3. Specificity

[¶31] In light of our conclusions that the imposition of SORNA registration

obligations on Doe resulted in a punitive enhancement of his sentence, and that this

enhancement occurred without a judicial trial, we consider the third element of a

bill of attainder—that is, the law’s application to a specific individual or group.

The element of specificity is not established by proof that a statute merely imposes

punishment on some persons or groups, but also requires proof that certain persons
18

or groups are selected based on their irreversible prior conduct. Roe v. Farwell,

999 F.Supp. 174, 193 (D. Mass. 1998).

[¶32] The record indicates that the SORNA amendment in question may

have targeted a specific group based on its members’ prior conduct. If it did,

application of the amendment to members of that group violates the Bill of

Attainder Clause because it legislatively enhances their sentences. The trial court

concluded that SORNA is not punitive and it denied Doe’s bill of attainder claim

without addressing the issue of specificity. Because the record does not contain

any factual findings or stipulations concerning specificity, we must remand for

further consideration of this issue.

C. Conclusion

[¶33] The Bill of Attainder Clause “does not preclude a State from making

reasonable categorical judgments that a conviction of specified crimes should

entail particular regulatory consequences.” Smith v. Doe, 538 U.S. 84, 103 (2003).

It does, however, preclude the legislature from imposing punishment on an

individual or group in circumvention of the judicial process. Because the SORNA

amendment at issue here imposes punishment outside of the judicial process, and

because the trial court did not address the element of specificity, we vacate the

judgment and remand to the trial court for further consideration.
 19

The entry is:

Judgment vacated. Remanded to the trial court for
further consideration.

On the briefs:

Bruce M. Merrill, Esq., Bruce M. Merrill, P.A., Portland, for
appellant John Doe XLVI

Janet T. Mills, Attorney General, Paul Stern, Dep. Atty. Gen.,
and Laura Yustak Smith, Asst. Atty. Gen., Office of the
Attorney General, Augusta, for appellees Stephanie Anderson
et al.

At oral argument:

Bruce M. Merrill, Esq., for appellant John Doe XLVI

Laura Yustak Smith, Asst. Atty. Gen., for appellees Stephanie
Anderson et al.

Kennebec County Superior Court docket number CV-2012-124
FOR CLERK REFERENCE ONLY