NO. 95-501
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
CRAIG WILLIAM FRAZIER,
ALL PAROLEES and PROBATIONERS
SENTENCED PRIOR TO JULY 1, 1993,
Plaintiffs and Appellants,
v.
MONTANA STATE DEPARTMENT OF CORRECTIONS,
by and through MONTANA ADULT PROBATION
and PAROLE, et al.,
Defendants and Respondents.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable John W. Whelan, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Craig William Frazier, Pro Se, Deer Lodge,
Montana
For Respondents:
David L. Ohler, Lois Adams! Department of
Corrections and Human Services, Helena,
Montana
Submitted on Briefs: May 9, 1996
Decided: June 20, 1996
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Craig William Frazier (Frazier), pro se, appeals from the
order and memorandum of the Second Judicial District Court, Silver
Bow County, determining that the supervision fee in § 46-23-
1031(1) (a), MCA, is constitutional. We affirm.
The following issue is raised on appeal:
Did the District Court err in determining that § 46-23-
1031(1) (a), MCA, does not violate the prohibition against ex post
facto laws as applied to parolees and probationers sentenced prior
to July 1, 1993?
Frazier alleges that HB 673, passed by the 1993 Montana
Legislature and codified at 5 46-23-1031, MCA, which requires
probationers and parolees to pay a $10 per month supervision fee
violates the prohibition against ex post facto laws contained in
Article I, § 10 of the United States Constitution and Article II,
5 31 of the Montana Constitution. Section 46-23-1031, MCA,
provides in relevant part:
(1) (a) Except as provided in subsection (1) (b), a
probationer or parolee shall pay a supervisory fee of
$120 a year, prorated at $10 a month for the number of
months under supervision. The fee must be collected by
the clerk of the district court with jurisdiction during
the probationer‘s or parolee's period of supervision
under this part.
(b) The court or the board may reduce or waive the
fee or suspend the monthly payment of the fee if it
determines that the payment would cause the probationer
or parolee a significant financial hardship.
The ex post facto clause, Article II, § 31 of the Montana
Constitution, provides that "[nlo ex post facto law nor any law
impairing the obligation of contracts, or making any irrevocable
grant of special privileges, franchises, or immunities, shall be
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passed by the legislature."
In reviewing a district court's conclusions of law we
determine whether the district court's interpretation of the law is
correct. Stratemeyer v. Lincoln County (Mont. 1996), 915 P.2d 175,
177, 53 St.Rep. 245, 246 (citing Steer, Inc. v. Department of
Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04).
Here, the District Court concluded that:
Since the costs and fees assessed pursuant to § 46-
23-1031, Mont. Code Ann., are for the costs of providing
supervision and programs by the department and are not
imposed as a penalty or punishment for the crime for
which the offender was convicted, application of the
monthly supervision fees to all offenders on active
supervision on or after the effective date of the
legislation does not constitute an ex post facto
application of the statute.
Frazier asserts that he was sentenced prior to the enactment of §
46-23-1031, MCA, and that the statute cannot be retroactively
applied to him and other probationers and parolees similarly
situated. We disagree.
"[Flor a criminal or penal law to be ex post facto . . . it
must be retrospective, that is, it must apply to events occurring
before its enactment, and it must disadvantage the offender
affected by it." Bae v. Shalala (7th Cir. 1995), 44 F.3d 489, 492
(quoting Weaver v. Graham (1981), 450 U.S. 24, 28, 101 S.Ct. 960,
964, 67 L.Ed.2d 17). This Court has held that:
It is settled, by decisions of this Court so well known
that their citation may be dispensed with, that any
statute which punishes as a crime an act previously
committed, which was innocent when done; whichmakes more
burdensome the punishment for a crime, after its
commission, or which deprives one charged with a crime of
any defense available according to law at the time when
the act was committed, is prohibited as ex post facto.
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State v. Leistiko (1992), 256 Mont. 32, 36, 844 P.2d 97, 99-100
(quoting Beazell v. Ohio (1925), 269 U.S. 167, 169-70, 46 S.Ct. 68,
68-69, 70 L.Ed. 216).
Frazier relies on this Court's opinion in Leistiko to support
his argument that the supervision fee violates the prohibition
against ex post facto laws. In Leistiko, we stated that in
determining whether legislation violates the ex post facto clause
a two-part test must be used. First, the law must be retrospective
and, second, the law must disadvantage the affected offender.
Leistiko, 844 P.2d at 100 (citing Miller v. Florida (1987), 482
U.S. 423, 430, 107 S.Ct. 2246, 2251, 96 L.Ed.2d 351). A law is
retrospective if it changes the legal consequences of actions
committed prior to the law's effective date. Leistiko, 844 P.2d at
100. As to the second factor, in Leistiko, we determined that "the
additional restitution ordered . . . constitutes an
unconstitutional increase in punishment which Leistiko could not
have foreseen at the time he committed the crime . . . ."
Leistiko, 844 P.2d at 100.
Leistiko is distinguishable from the instant case. In
Leistiko, we determined that the district court erred in increasing
Leistiko's restitution obligation. Under the statute in effect at
the time of Leistiko's initial sentencing the district court did
not have the discretion to add additional terms and conditions to
the suspended sentence. A later amendment to the statute gave the
district court this discretion. However, we determined that
application of the later statute to Leistiko and imposition of an
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additional $10,000 in restitution violated the ex post facto
prohibition and constituted an unconstitutional increase in
punishment. Leistiko, 844 P.2d at 100. In the instant case, a
civil administrative fee has been assessed against Frazier to help
defray the costs of supervision. A civil sanction will implicate
ex post facto concerns only if it can be fairly characterized as
punishment. Bae, 44 F.3d at 492 (citing United States v. Halper
(1989), 490 U.S. 435, 447-48, 109 S.Ct. 1892, 1901-02, 104 L.Ed.Zd
487).
Relying on the legislative history, the Department of
Corrections asserts that the purpose of the supervision fee is to
help defray the costs of probation and parole by charging those
people benefitting from the system. The sponsor of the legislation
stated that he was not attempting to introduce punitive
legislation, rather, he was attempting to implement better
community based programs for probationers and parolees.
The District Court determined that the "intent of [the
supervisory feel is not to punish but to make the offender more
responsible for his rehabilitation in the form of paying for
supervision services rendered." In addition, the District Court
aptly noted that "the purpose of Montana's imposition of probation
and parole supervisory fees is to assist in making community
corrections an effective alternative to incarceration through
holding the offender accountable for his rehabilitation." We
agree. The supervisory fee facilitates community corrections which
serve, not as punishment, but as an alternative to imprisonment.
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Section 46-23-1031(l) (b), MCA, provides that the court or the
board can "reduce or waive the fee or suspend the monthly payment
of the fee if it determines that the payment would cause the
probationer or parolee a significant financial hardship." The
Department asserts that "[ilf probationers and parolees fail to pay
the fee, they have not been and will not be returned to [Montana
State Prison1 .'I The Department concludes that "[tlherefore,
probationers and parolees should never experience financial
hardship, nor parole revocation, solely as a result of a failure to
pay the fee."
Under the supervision fee statute, Frazier is not being
punished for his criminal activities, rather, he is helping to pay
the costs of his supervision. A civil sanction will be deemed to
be punishment in the constitutional sense only if the sanction "may
not fairly be characterized as remedial, but only as a deterrent or
retribution." Bae, 44 F.3d at 493 (citing Haloer, 490 U.S. at
449) . The legislative history of the supervision statute does not
reveal an intent to punish. Further, we note that even if the
supervision statute has a deterrent purpose that purpose does not
automatically mark the statute as a form of punishment. j&e, 44
F.3d at 494 (citing Montana Department of Revenue v. Kurth Ranch
(1994), _ U.S. _I 114 S.Ct. 1937, 1946, 128 L.Ed.Zd 767). The
United States Supreme Court has consistently required t"unmis-
takable evidence of punitive intent' to characterize a sanction as
punishment." Bae, 44 F.3d at 494 (citing Selective Serv. Sys. v.
Minnesota Pub. Interest Research Group (1984), 468 U.S. 841, 855
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n.15, 104 s.ct. 3348, 3357 n.15, 82 L.Ed.2d 632; Fleming v. Nestor
(19601, 363 U.S. 603, 619, 80 S.Ct. 1367, 1377, 4 L.Ed.2d 1435).
In the instant case, there is no such "unmistakable evidence of
punitive intent."
The legislative intent of the supervision statute does not
evidence an intent to punish, rather, the intent of the fee is to
help defray the costs of supervision and to hold probationers and
parolees accountable. These factors support our determination that
the supervision fee is administrative as opposed to punitive in
nature and cannot be fairly characterized as punishment. We hold,
therefore, that the District Court was correct in concluding that
the supervision fee set forth in § 46-23-1031, MCA, does not
violate the prohibition against ex post facto laws.
Affirmed
Justices
Justice Terry N. Trieweiler dissenting
I dissent from the majority opinion. I conclude that the
supervision fee imposed on Craig William Frazier nearly seven years
after the commission of his crime is indistinguishable from the
additional restitution ordered in Statev.Leistiko (1992), 256 Mont. 32,
844 P.2d 97, and that the same result is compelled by the reasoning
in that case.
We held in Leistiko that:
We use a two-part test to determine whether a
statute violates the ban on expostfacto laws: (1) the law
must be retrospective, and (2) it must disadvantage the
offender affected by it. Miller v. Florida (1987) , 482 U.S.
423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351, 360-61.
A law is retrospective if it changes the legal
consequences of actions committed before its effective
date. Miller, 482 U.S. at 430, 107 S.Ct. at 2451.
Leistiko , 256 Mont. at 36-37, 844 P.2d at 100.
In Leistiko the district court ordered that the defendant pay
additional restitution to his victim pursuant to a change in the
law which occurred after his conviction. We held that the order
requiring additional restitution violated the prohibition against
expostfacto laws because it added $10,000 to the cost of his crime and
placed an additional condition on his parole which could subject
him to additional incarceration. Leistiko, 256 Mont. at 37, 844 P.2d
at 100. Both of those circumstances also exist in this case.
The supervisory fee imposed on Frazier was retrospective
because it changed the legal consequences of crimes he committed
before the effective date of the fee. It disadvantaged Frazier
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because it increased the legal cost of his crime by an amount in
excess of $5000. Furthermore, contrary to the representations of
the Montana State Department of Corrections, which the majority
opinion accepts at face value, Frazier was served with a notice by
his probation and parole officer that if he did not pay the
supervisory fee he could have his "probation/parole revoked."
Therefore, both of the conditions which this Court found
controlling in Leistiko exist in nearly the exact form in this case.
The majority attempts to distinguish this case from Leistiko on
the grounds that Frazier is not being punished by the supervisory
fee, but is merely helping to pay the cost of his supervision.
Neither was Leistiko being punished by the requirement that he pay
restitution. He was merely helping to pay his victim for the
consequences of his crime. In this case, the State is being
reimbursed. 1n Leistiko, the victim was being reimbursed.
The majority opinion attributes some significance to the fact
that it was not the Legislature's intent to punish those parolees
who are required to pay thousands of dollars in supervision fees
even though that requirement was not in existence at the time of
their crimes. The Legislature's intent is not relevant to our
constitutional analysis of whether § 46-23-1031(I) (a), MCA,
violates Article II, Section 31, of the Montana Constitution, which
prohibits expostfacto laws.
There is no practical basis on which to distinguish the facts
in this case from the facts in Leistiko. There is no justification
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for refusing to apply the test for expostfacto laws which we have
previously articulated to the facts in this case.
For these reasons, I dissent from the majority opinion.
Jus ice
Justice William E. Hunt, Sr., joins in the foregoing dissenting
opinion.
Justibe
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