State v. Mount

No. 02-020

IN THE SUPREME COURT OF THE STATE OF MONTANA

2003 MT 275

STATE OF MONTANA,

Plaintiff and Appellant,

v.

ROBERT S. MOUNT,

Defendant and Respondent.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula, Cause No. DC 2000-255
The Honorable John W. Larson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Mike McGrath, Montana Attorney General, Ali Sheppard, Assistant Montana
Attorney General (argued), Helena, Montana; Fred VanValkenburg,
Missoula County Attorney, Dale Mrkich, Deputy Missoula County Attorney,
Missoula, Montana

For Respondent:

William Boggs, Missoula, Montana (argued)

Argued: October 17, 2002
Submitted: March 13, 2003
Decided: October 7, 2003
Filed:

__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1 The State of Montana (State) appeals the judgment entered by the Fourth Judicial

District Court, Missoula County, granting Robert S. Mount’s (Mount) motion to dismiss the

charge of failing to register as a sex offender. We reverse and order the District Court to

reinstate the charge.

¶2 We address the following issues on appeal:

¶3 1. Did the District Court err in finding that the registration and disclosure
requirements of the Sexual or Violent Offender Registration Act constituted
punishment for purposes of the ex post facto clause of the United States and
Montana Constitutions?

¶4 2. Do the registration and disclosure requirements of the Sexual or Violent
Offender Registration Act deprive offenders of any “rights” within Article II,
Section 28, of the Montana Constitution, or § 46-18-801, MCA?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 In 1989, Montana enacted the Sexual Offender Registration Act. Referred to

popularly as Megan’s Law, the Sexual Offender Registration Act mandates that convicted

sex offenders register as sex offenders in their communities, at which time their communities

are notified of the offenders’ presence.

¶6 Since its enactment, the Montana Legislature (Legislature) has twice amended the

Sexual Offender Registration Act. The effective date of the first amendment was October

1, 1995. The effective date of the second amendment was October 1, 1997.

¶7 In 1995, the Legislature amended the title of the Sexual Offender Registration Act to

the Sexual or Violent Offender Registration Act (the Act). The Legislature also amended

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the Act to include “or violent” after every instance where the word “sexual” occurred in the

Act. Further, the Legislature set out specific registration and disclosure requirements to

which an offender must adhere upon release. Neither the Act, nor the 1995 amendments

contained retroactive provisions.

¶8 In 1997, the Legislature again amended the Act to make its registration and disclosure

requirements retroactive to “sexual offenders who are sentenced or who are in the custody

or under the supervision of the department of corrections on or after July 1, 1989.”

¶9 On October 24, 1984, Mount was convicted of sexual intercourse without consent,

a felony offense. He was sentenced to the Montana State Prison for 20 years.

¶10 On May 10, 1996, Mount received a final discharge from the Montana State Prison,

and on May 19, 1996, he registered as a sex offender in Missoula County.

¶11 On June 16, 2000, Mount was charged with failing to register as a sex offender under

§ 46-23-507, MCA. The charge arose from Mount’s admissions that he had not updated his

registration since May 19, 1996, when he initially registered. Specifically, § 46-23-507,

MCA, states: “[a] sexual or violent offender who knowingly fails to register, verify

registration, or keep registration current . . . may be sentenced to a term of imprisonment of

not more than 5 years or may be fined not more than $10,000, or both.”

¶12 On October 17, 2001, Mount moved for dismissal of the charge of failing to register

as a sex offender. The District Court granted his motion on November 14, 2001. The

District Court found that the Act, as applied to Mount, was ex post facto because it subjected

him to enhanced punishment based on his prior conviction. Such enhanced punishment, the

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District Court concluded, was in violation of the constitutional prohibition against ex post

facto laws.

¶13 The State now appeals the District Court’s judgment.

¶14 Additional facts will be discussed where they become applicable in the following

analysis.

STANDARD OF REVIEW

¶15 In criminal cases, we review a District Court’s grant or denial of a motion to dismiss

de novo as a question of law. State v. Beanblossom, 2002 MT 351, ¶ 9, 313 Mont. 394, ¶

9, 61 P.3d 165, ¶ 9.

DISCUSSION

A. EX POST FACTO JURISPRUDENCE

¶16 We begin by setting out the historical development of ex post facto jurisprudence in

Montana, and we then clarify the test to be applied henceforth.

¶17 The ex post facto clause is found at Article II, Section 31 of the 1972 Montana

Constitution. This clause states: “No 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 passed by the legislature.” Art. II, Sec. 31, Mont. Const. This clause was derived

from Article III, Section 11, of the 1889 Montana Constitution and in large measure parallels

Article I, Section 10, of the United States Constitution. LARRY M. ELISON & FRITZ

SNYDER, THE MONTANA STATE CONSTITUTION 83 (G. Alan Tarr series ed., Greenwood

Press) (2001).

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¶18 We have applied Montana’s ex post facto clause in a number of cases. In so doing,

we have adopted one test in criminal cases and another in civil cases.

¶19 As to criminal cases, three slightly different tests and analyses have emerged over

time. In State v. Ellsworth (1963), 142 Mont. 14, 380 P.2d 886, we adopted the test set forth

by the United State Supreme Court in Calder v. Bull (1798), 3 U.S. 386, 1 L.Ed 648. This

test defined ex post facto legislation as:

[1] every law that makes an action done before the passing of the law, and
which was innocent when done, criminal; and punishes such action; or
[2] every law that aggravates a crime, or makes it greater than it was, when
committed; or
[3] every law that changes the punishment, and inflicts a greater punishment,
than the law annexed to the crime, when committed.

Ellsworth, 142 Mont. at 19, 380 P.2d at 888 (quoting Calder, 3 U.S. at 390).

¶20 We followed the Ellsworth test for several years. See State v. Maldonado (1978), 176

Mont. 322, 328, 578 P.2d 296, 300; State v. Gone (1978), 179 Mont. 271, 280, 587 P.2d

1291, 1297; State v. Azure (1978), 179 Mont. 281, 282, 587 P.2d 1297, 1298; State v.

Coleman (1979), 185 Mont. 299, 314, 605 P.2d 1000, 1010, cert denied, 446 U.S. 970, 100

S.Ct. 2952, 64 L.Ed.2d 831; State v. Beachman (1980), 189 Mont. 400, 406, 616 P.2d 337,

340-41; State v. Hall (1986), 224 Mont. 187, 189, 728 P.2d 1339, 1340, rev’d on other

grounds by 481 U.S. 400, 107 S.Ct. 1825, 95 L.Ed.2d 354.

¶21 However, in 1992, without stating any particular rationale, we adopted a second

version of the ex post facto test in State v. Leistiko (1992), 256 Mont. 32, 844 P.2d 97. This

version was adopted from Miller v. Florida (1987), 482 U.S. 423, 430, 107 S.Ct. 2446,

5
2451, 96 L.Ed.2d 351, and specifically stated that a law was ex post facto if it: (1) was

retrospective; and (2) disadvantaged the offender affected by it. Leistiko, 256 Mont. at 36-

37, 844 P.2d at 100 (holding that an increase in the amount of restitution owed, based on

recent parole violations, violated the ex post facto clause).

¶22 We continued to apply the Leistiko test for four years. Then, in 1996, we adopted a

third version in Frazier v. Montana State Dept. of Corrections (1996), 277 Mont. 82, 920

P.2d 93. The Frazier test looked to both the intent and the effect of the law at issue.

Frazier, 277 Mont. at 85-87, 920 P.2d at 95-97 (holding that the intent of an administrative

supervision fee is nonpunitive and the effect of the law is to require monetary assistance

from Frazier). In Frazier, we stated that Leistiko was inapplicable on the facts, as Frazier

dealt with a civil sanction. In this regard, we noted that "[a] civil sanction will implicate ex

post facto concerns only if it can be fairly characterized a punishment." Frazier, 277 Mont

at 85, 920 P.2d at 95 (citing Bae v. Shalala (7th Cir. 1995), 44 F.3d 489, 492).

¶23 Notwithstanding our adoption of the Frazier test, we continued, for the most part, to

apply the Leistiko test in criminal contexts. See State v. Suiste (1993), 261 Mont. 251, 253,

862 P.2d 399, 401; State v. Brander (1996), 280 Mont. 148, 153, 930 P.2d 31, 35; Matter

of Brogan (1997), 283 Mont. 413, 422, 942 P.2d 100, 106; State v. Beckman (1997), 284

Mont. 459, 463, 944 P.2d 756, 759; State v. Cooney (1997), 284 Mont. 500, 505, 945 P.2d

891, 893-94; In re Young, 1999 MT 195, ¶ 14, 295 Mont. 394, ¶ 14, 983 P.2d 985, ¶ 14;

State v. Duffy, 2000 MT 186, ¶ 29, 300 Mont. 381, ¶ 29, 6 P.3d 453, ¶ 29; State v. Goebel,

2001 MT 155, ¶ 28, 306 Mont. 83, ¶ 28, 31 P.3d 340, ¶ 28; Wright v. Mahoney, 2003 MT

6
141, ¶ 7, 316 Mont. 173, ¶ 7, 71 P.3d 1195, ¶ 7.

¶24 However, in 1997, we again reformulated the ex post facto test for criminal matters.

As revised, this test states that a law is ex post facto if it:

[1] punishes as a crime an act which was not unlawful when committed;
[2] makes punishment for a crime more burdensome; or
[3] deprives [a] person charged with a crime of any defense available under
the law at the time the act was committed.

See Langford v. State (1997), 287 Mont. 107, 114, 951 P.2d 1357, 1361; Kills on Top v.

State, 2000 MT 340, ¶ 65, 303 Mont. 164, ¶ 65, 15 P.3d 422, ¶ 65.

¶25 Given that this test is more comprehensive and is in line with the progression of our

ex post facto jurisprudence, we take this opportunity to clarify that henceforth, the test, as

set forth in Langford, shall be used in analyzing ex post facto challenges in criminal contexts.

¶26 That said, and for reasons which will become apparent in our further discussion, in

analyzing ex post facto challenges in civil sanction contexts, we will henceforth apply an

intents-effects test. Our articulation and application of that test here, though, follows current

federal case law and is more comprehensive than was the test stated in Frazier.

¶27 With that introduction, we next turn to the Act itself.

B. THE ACT

¶28 As noted, the Act was adopted in 1989, and this law is codified in the code of

criminal procedure. See §§ 46-23-501 to 520, MCA. Among other things, the Act requires

offenders to register in-person with the local law enforcement agency in their communities.

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Sections 46-23-504(1) and (2), MCA (2001). During this initial registration, offenders must

provide the local law enforcement agency with their addresses, photographs and fingerprints.

Section 46-23-504(3), MCA (2001). After this initial registration, offenders must then

update their addresses by mail according to the time-frames applicable to their level

designations--i.e., level one and level two offenders must update their registration

information once a year and level three offenders, every 90 days. Section 46-23-504(4),

MCA (2001).

¶29 Under the Act, the duration of the registration requirement depends on an offender’s

classification--i.e., sex offenders must register for the rest of their lives. Section 46-23-

506(1), MCA (2001). However, both sex and violent offenders may petition a court for

relief of the registration requirement after ten years of registration compliance. Section 46-

23-506(3), MCA (2001). Finally, as noted above, the Act contains a retroactivity clause for

both sex and violent offenders. Section 46-23-501, MCA, Compiler’s Comments.

¶30 As previously stated, Mount contends that the Act violates the ex post facto clause of

the United States and Montana Constitutions. That challenge brings us to the recent United

States Supreme Court (Supreme Court) case, Smith v. Doe (2003), ___ U.S. ___, 123 S.Ct.

1140, 155 L.Ed.2d 164. Smith dealt with an ex post facto challenge to a sexual offender

registration act similar to Montana's act. Specifically, the Supreme Court in Smith addressed

whether Alaska’s Sexual Offender Registration Act (Alaska’s Act) violated the federal ex

post facto clause. Smith, ___ U.S. at ___, 123 S.Ct. at 1145.

¶31 Both respondents in Smith pled nolo contendre to sexual abuse charges and served

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and completed their respective sentences and rehabilitative programs. However, Alaska’s

Act contained a retroactivity provision which made the requirements of Alaska’s Act

applicable to them, with the result that, after completing their respective sentences and

rehabilitative programs, both respondents were required to register as sex offenders under

Alaska’s Act. Smith, ___ U.S. at ___, 123 S.Ct. at 1145-46. The respondents were also

required to submit quarterly verifications to the appropriate authorities, and to notify the

authorities of any changes to their initial registration forms. Both respondents argued

Alaska’s Act violated the federal ex post facto clause. Smith, ___ U.S. at ___, 123 S.Ct. at

1146.

¶32 The Supreme Court, however, rejected this challenge and held that Alaska’s Act did

not violate the ex post facto clause. Important to our analysis here, the Supreme Court

utilized an intents-effects test in disposing of the case. Smith, ___ U.S. at ___, 123 S.Ct. at

1146-47, 1154. It is to the Supreme Court's articulation of that test we now turn.

C. THE TEST

¶33 As a first step, the Supreme Court determined the intent of the law at issue. In so

doing, it analyzed: (1) the declared purpose of the law and (2) the structure of the law. In

this part of its analysis, the Supreme Court stated that if the declared purpose of the law, or

the structure of the law, or the declared purpose and the structure of the law is punitive, the

analysis ends, for at that point the law meets the very definition of ex post facto. Smith, ___

U.S. at ___, 123 S.Ct. at 1146-47. This parallels the test we used in Frazier, 277 Mont. at

86, 920 P.2d at 96.

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¶34 The Supreme Court went on to note, however, that if both the declared purpose and

the structure of the law are nonpunitive, then the intent of the law is to enact a civil

regulatory scheme. Smith, ___ U.S. at ___, 123 S.Ct. at 1147. From that point, the Supreme

Court's analysis proceeded to determine the effect of the law. Smith, ___ U.S. at ___, 123

S.Ct. at 1147.

¶35 In determining the effect of the law, the Supreme Court applied various factors from

Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644. These

seven non-exclusive factors or guides include: (1) whether the law imposes an affirmative

restraint or disability; (2) the historical treatment of the law; (3) a finding of scienter; (4)

whether the law was traditionally aimed at punishment; (5) whether the law applies to

criminal behavior; (6) whether the law has a nonpunitive purpose; and (7) the excessiveness

of the law in application. Mendoza-Martinez, 372 U.S. at 168-69, 83 S.Ct. at 567-68.

¶36 Under the Supreme Court's analysis, if, in totality, these factors result in the effect of

the law being nonpunitive, then, combined with the nonpunitive intent of the law, the law

will not be held to violate the ex post facto clause. Smith, ___ U.S. at ___, 123 S.Ct. at

1154.

¶37 As noted, we adopted an intents-effects test in Frazier, 277 Mont. at 85-88, 920 P.2d

at 95-97. However, since the intents-effects test articulated in Smith includes a more

comprehensive discussion of both the "intents" and "effects" prongs of the test, we shall,

henceforth use the Smith test, including the Mendoza-Martinez factors delineated above, in

analyzing ex post facto challenges involving civil sanctions and regulatory schemes,

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including the one at bar.

ISSUE 1.

¶38 Did the District Court err in finding that the registration and disclosure
requirements of the Act constituted punishment for purposes of the ex post facto
clause of the United States and Montana Constitutions?

¶39 Using the Smith analysis, the State argues that the Act is regulatory and nonpunitive

in nature, and that application of the Mendoza-Martinez factors further clarifies the Act’s

nonpunitive purpose.

¶40 Mount argues that the Leistiko test is applicable because the Act “disadvantages” him

by subjecting him to a “grievous social stigma,” thereby offending his constitutional right

against ex post facto legislation. Mount also argues that application of the Mendoza-

Martinez factors further proves the State’s prosecution of him is in violation of the ex post

facto clause.

¶41 We agree with the State and address both parties’ arguments within the context of the

intents-effects test articulated in Smith.

I. INTENTS

¶42 We first determine the intent of the law, and in so doing, we analyze both the declared

purpose of the law and the structure of the law. Again, if both the declared purpose of the

law and the structure of the law are nonpunitive, then the intent of the law is also

nonpunitive. Smith, ___ U.S. at ___, 123 S.Ct. at 1146-47.

A. Declared Purpose

¶43 At the outset, it is appropriate that we set out some guiding principles in determining

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the law's declared purpose. Considerable deference is given to legislative intent, Smith, ___

U.S. at ___, 123 S.Ct. at 1147, and we will override legislative intent only upon a showing

of the clearest proof, Hudson v. United States (1997), 522 U.S. 93, 100, 118 S.Ct. 488, 493,

139 L.Ed.2d 450. In determining legislative intent, we consider the legislature’s declared

purpose as well as the structure of the law at issue. Flemming v. Nestor (1960), 363 U.S.

603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435. Further, regarding the law’s declared

purpose, we must determine whether the legislature either explicitly or impliedly intended

the law to be civil or criminal in nature. Hudson, 522 U.S. at 99, 118 S.Ct. at 493.

Imposition of restrictive measures to further a law’s declared purpose has been held to be “a

legitimate nonpunitive governmental objective.” Kansas v. Hendricks (1997), 521 U.S. 346,

363, 117 S.Ct. 2072, 2083, 138 L.Ed.2d 501 (statute set forth civil commitment procedures

for long-term care of sexually violent predators). Thus, where a legislative restriction exists

which falls under the State’s power to protect the health and safety of its citizens, the

legislative restriction will be construed as evidencing a regulatory and not a punitive power.

Hawker v. New York (1898), 170 U.S. 189, 192-95, 18 S.Ct. 573, 575, 42 L.Ed. 1002.

¶44 Here, the Act does not contain a declared purpose as such. However, the preamble

to the Act lists several legislative concerns which prompted adoption of the Act’s provisions.

These concerns include: (1) the danger of recidivism and protection of the public; (2) the

impairment of law enforcement efforts from lack of information; (3) the prevention of

victimization and prompt resolution of sexual or violent offenses; (4) the offender's reduced

expectation of privacy because of the public's interest in safety; and (5) the protection of

12
specific vulnerable groups and the public in general. See Compiler's Comments to Title 46,

Chapter 23, Part 5, Montana Code Annotated.

¶45 These concerns are strikingly similar to the declared purpose of Alaska’s Act. Smith,

___ U.S. at ___, 123 S.Ct. at 1147. Furthermore, like the statute in Hendricks, nothing on

the face of the Act indicates that it is anything other than a civil regulatory scheme intended

to protect the public. Hendricks, 521 U.S. at 361, 117 S.Ct. at 2082. The protection of the

public from recidivism is of “paramount concern to the government and the people” of

Montana. See Preamble to Title 46, Chapter 23, Part 5, Montana Code Annotated. As in

Hawker, the Act’s registration and disclosure requirements evidence that these are regulatory

in nature. Hence, we conclude that the declared purpose of the Act--that of protecting the

public--is nonpunitive for purposes of the first prong of our "intents" analysis.

B. Structure

¶46 As part of our "intents" analysis, we must also determine whether the structure of the

Act is nonpunitive. While the manner of codification of the enforcement provisions of a law

are probative of the legislature’s intent, Hendricks, 521 U.S. at 361, 117 S.Ct. at 2082, the

location and labels assigned to a statutory provision do not, by themselves, transform a civil

remedy into a criminal one, or vice versa, Smith, ___ U.S. at ___, 123 S.Ct. at 1148.

¶47 Here, the Act is codified in Montana’s code of criminal procedure, Title 46, Chapter

23, Part 5, Montana Code Annotated. However, in Doe I v. Otte (9th Cir. 2001), 259 F.3d

979, 986, rev’d by Smith, ___ U.S. at ___, 123 S.Ct. at 1140, the Ninth Circuit deferred its

analysis of the structure of the law there at issue, given that the purpose of the law was so

13
clear. This approach was affirmed by the Supreme Court in Smith, ___ U.S. at ___, 123

S.Ct. at 1149.

¶48 We take the same approach. Since, as we have already stated, the declared purpose

of the Act is clearly nonpunitive, we conclude that the fact that the Act is codified in the

code of criminal procedure does not, in and of itself, transform the Act's nonpunitive, civil

regulatory scheme into a criminal one.

¶49 We hold, therefore, that the legislative intent of the Act is nonpunitive. That being

the case, we next proceed to the "effects" prong of our test.

II. EFFECTS

¶50 As previously stated, the second step in our analysis is to determine the effect of the

law, and in so doing, we apply the seven Mendoza-Martinez factors articulated in Smith, ___

U.S. at ___, 123 S.Ct. at 1149. Again, these factors include: (1) whether the law imposes

an affirmative restraint or disability; (2) the historical treatment of the law; (3) a finding of

scienter; (4) whether the law was traditionally aimed at punishment; (5) whether the law

applies to criminal behavior; (6) whether the law has a nonpunitive purpose; and (7) the

excessiveness of the law in application. Mendoza-Martinez, 372 U.S. at 168-69, 83 S.Ct.

at 567-68. If, in totality, the factors are nonpunitive, then the effect of the law is also

nonpunitive. Smith, ___ U.S. at ___, 123 S.Ct. at 1154. We will address each of these

factors in turn.

A. Affirmative Restraint or Disability

¶51 The first of the Mendoza-Martinez factors considers whether the Act imposes an

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affirmative restraint or disability.

¶52 The State argues that the registration and disclosure requirements of the Act establish

a regulatory scheme, which is consistent with the purpose of the Act in protecting the public.

¶53 Mount argues that the renewal requirement of the Act and the unlimited access by the

public to the registration information via the Internet proves that the Act imposes an

affirmative restraint or disability.

¶54 We agree with the State. As the Supreme Court in Smith noted, the more minor and

indirect the restraint or disability, the more likely such restraint or disability is nonpunitive.

Smith, ___ U.S. at ___, 123 S.Ct. at 1151.

¶55 The Act requires Mount to register in person initially at his local law enforcement

agency, at which time he is also photographed and fingerprinted. Sections 46-23-504(2) and

504(3), MCA (2001). However, after this initial registration, Mount can choose to verify his

address by mail once a year. Section 46-23-504(4), MCA (2001). Mount may live

anywhere he desires, his only obligation being that if he moves, he must notify his local law

enforcement agency of his change of address within ten days. Section 46-23-505, MCA.

Under the Act, Mount must keep his registration current for life. Section 46-23-506(1),

MCA (2001). Failure to do so will subject him, as it did here, to criminal prosecution.

Section 46-23-507, MCA. However, a court may vacate this requirement upon receiving and

ultimately granting a petition for an order relieving him of the requirements after ten years

have passed. Section 46-23-506(3), MCA (2001).

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¶56 We conclude that these requirements impose an indirect restraint on Mount and are,

therefore, more consistent with a regulatory scheme. Mount is only initially required to

register in-person. Thereafter, he can update his registration information by mail. In

addition, he can move wherever he desires and he can petition a court for an order relieving

him of the registration requirement. The registration and disclosure requirements of the Act,

therefore, do not impose an affirmative restraint or disability on Mount.

B. Historical Treatment

¶57 The second Mendoza-Martinez factor addresses the historical treatment regarding the

types of requirements imposed under the Act.

¶58 The State argues that the registration and disclosure requirements of the Act do not

incarcerate, incapacitate, or inhibit Mount’s freedom of movement. As such, the State

argues that the Act's requirements do not impose traditional forms of punishment.

¶59 Mount argues that the registration and disclosure requirements of the Act are

analogous to historical shaming punishments, especially since the Internet makes his

information readily available.

¶60 Again, we agree with the State. The registration and disclosure requirements of the

Act cannot be likened to historical shaming punishments. The primary purpose of the

registration and disclosure requirements of the Act are not to shame or embarrass the

registrant, but rather, to provide parents with information necessary to protect themselves

and their vulnerable children and to provide law enforcement with information necessary to

track a class of offenders who have a high propensity for recidivism. Historically

16
punishments were of a physical nature--whipping, branding, incarceration. While the

registrant may incidentally suffer humiliation as a result of having to register and disclose

his whereabouts under the Act, this is not physical punishment. Smith, ___ U.S. at ___, 123

S.Ct. at 1150.

¶61 Mount nonetheless argues that the registration and disclosure requirements effectively

“shame” him since his information is readily accessible via the Internet. We disagree.

¶62 The Supreme Court in Smith addressed this same argument. The Supreme Court held

that the stigma that flows from registering as a sex offender is not from public shaming.

Rather, the stigma flows from dissemination of accurate information which is already public

for the most part. The Supreme Court noted that the “State does not make the publicity and

the resulting stigma an integral part of the objective of the regulatory scheme.” Smith, ___

U.S. at ___, 123 S.Ct. at 1150. Additionally, “[w]idespread public access is necessary for

the efficacy of the [regulatory] scheme [of the Act] . . . .” Smith, ___ U.S. at ___, 123 S.Ct.

at 1150. We adopt this same rationale.

¶63 Any shame that Mount may experience results from his previous conviction, not from

disclosure of that fact to the public. Indeed, Mount's conviction and sentence is already a

matter of public record. Furthermore, the availability of the information about Mount

provides parents with the ability to protect themselves and their vulnerable children.

Moreover, protection from the recidivism of sex offenders is the Act’s paramount purpose.

We conclude that the registration and disclosure requirements of the Act do not constitute

historical shaming or punishment.

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C. Finding of Scienter

¶64 The third Mendoza-Martinez factor addresses scienter.

¶65 The State argues that although the Act operates on antecedent events, that fact does

not make it ex post facto under this factor.

¶66 Mount argues that the registration and disclosure requirements only apply to those

convicted of a sexual offense. Thus, Mount argues that the requirements are effective only

upon a finding of scienter with regard to that underlying sexual offense. We disagree.

¶67 We have previously held that “simply because a statute operates on events antecedent

to its effective date does not make the statute ex post facto . . . .” Brander, 280 Mont. at 154,

930 P.2d at 35 (quoting Coleman, 185 Mont. at 314, 605 P.2d at 1010 (citations omitted)).

Further, as the Ninth Circuit Court noted in Russell v. Gregoire (9th Cir. 1997), 124 F.3d

1079, 1089-90, cert. denied, Stearns v. Gregoire, 523 U.S. 1007, 118 S.Ct. 1191, 140

L.Ed.2d 321, “[i]t is hornbook law that no ex post facto problem occurs when the legislature

creates a new offense that includes a prior conviction as an element of the offense, as long

as the other relevant conduct took place after the law was passed.” That is exactly the

situation here.

¶68 Mount is charged with failing to register as a sex offender under § 46-23-507, MCA.

Specifically, this statute states: “[a] sexual or violent offender who knowingly fails to

register, verify registration, or keep registration current . . . may be sentenced to a term of

imprisonment of not more than 5 years or may be fined not more than $10,000, or both.”

Section 46-23-507, MCA. This charge is a separate offense from the previous charge and

18
conviction of sexual intercourse without consent and, though including the past offense as

an element of the present one, Mount's conduct in failing to register clearly took place after

the registration requirements were enacted.

¶69 Therefore, we conclude that this Mendoza-Martinez factor is not violated.

D. Traditional Aims of Punishment

¶70 The fourth Mendoza-Martinez factor addresses traditional aims of punishment--i.e.,

retribution and deterrence.

¶71 The State argues that the Act’s main purpose is protection of the public from the

recidivism of sex offenders and not to inflict retribution on sex offenders.

¶72 Mount argues that the registration and disclosure requirements are punitive, namely

because he must register for life. We agree with the State.

¶73 While the more a statute promotes the traditional aims of retribution and deterrence,

the more likely the statute is punitive, a statute may provide a measure of deterrence, and

still qualify as nonpunitive. Smith, ___ U.S. ___, 123 S.Ct. at 1152. The registration and

disclosure requirements of the Act may have an incidental deterrent effect, since potential

offenders may not want to register for life should they be convicted. Doe I, 259 F.3d at

989-90. This incidental effect, however, does not necessarily implicate punishment, as long

as the law is reasonably related to the law’s purpose. Smith, ___ U.S. at ___, 123 S.Ct. at

1152.

¶74 Again, Mount is required initially to register in-person, after which he can update his

registration information by mail. He must do this for the rest of his life, but he also may

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petition a court for an order relieving him of the registration requirement. These

requirements, as we held above, establish a regulatory scheme. These requirements also

further the Act’s purpose of (1) protecting the public from the recidivism of sex offenders;

(2) assisting law enforcement efforts in gathering information; and (3) preventing

victimization and resolving sexual offenses. And, we have already stated that the intent of

the Act is nonpunitive and that the Act's registration and disclosure requirements establish

a regulatory scheme which furthers the purposes of the Act.

¶75 We conclude, therefore, that the registration and disclosure requirements are

reasonably related to the Act’s purposes. They do not promote retribution under this fourth

Mendoza-Martinez factor.

E. Criminal Behavior

¶76 The fifth Mendoza-Martinez factor addresses whether the Act applies to criminal

behavior.

¶77 The State argues that the Act does not impose criminal sanctions for previous criminal

conduct. Mount argues that the Act applies to criminal behavior because it imposes criminal

sanctions only on individuals who have been convicted.

¶78 In Russell, the Ninth Circuit noted that the crime of failing to register was a separate

offense. The Court in Russell also noted that a prior conviction for a sexual offense was an

element to the offense of failing to register. However, that fact was “of no consequence,”

because the failing to register charge was, again, a separate offense. Russell, 124 F.3d at

1088.

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¶79 Similarly, Mount was charged with the separate offense of failing to register as a sex

offender, under § 46-23-507, MCA. Therefore, we hold that Mount is not being punished

for past criminal conduct, but for his present offense.

F. Nonpunitive Purpose

¶80 The sixth Mendoza-Martinez factor addresses whether the Act has a nonpunitive

purpose. Mount conceded that a nonpunitive purpose for the Act existed. As already noted,

the purpose of the Act is, among other things, protection of the public from the recidivism

of sex offenders. We conclude, again, that under this factor, the Act has a nonpunitive

purpose.

G. Excessiveness

¶81 The seventh and final Mendoza-Martinez factor addresses whether application of the

Act is excessive.

¶82 The State argues that the registration and disclosure requirements impose a minimal

burden on Mount. The State also argues that the requirements are tailored to disclose only

the information necessary to further the Act’s purpose of protecting the public.

¶83 Mount argues that the registration and disclosure requirements are “exceedingly

broad,” providing the public with “almost unlimited public access to registration

information.”

¶84 Again, we agree with the State. The registration and disclosure requirements are

tailored to disclose only necessary information and, as already noted, these requirements do

not impose an excessive burden on the registrant.

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¶85 Moreover, we note that under § 46-23-508, MCA, the names and addresses of

registered sex or violent offenders are classified as public criminal justice information.

Under the Act, law enforcement officials have discretion whether or not to release additional

information about registered sex or violent offenders should these officials deem the

additional information necessary to protect the public. Section 46-23-508(1), MCA.

¶86 In addressing this excessiveness factor, the Supreme Court in Smith noted that:

The excessiveness inquiry of . . . ex post facto jurisprudence is not an exercise
in determining whether the legislature has made the best choice possible to
address the problem it seeks to remedy. The question is whether the
regulatory means chosen are reasonable in light of the nonpunitive objective.

Smith, ___ U.S. at ___, 123 S.Ct. at 1154 (emphasis added).

¶87 Here, the Legislature chose to require sex offenders to register with their local law

enforcement agency. Section 46-23-504(2), MCA (2001). As we have already stated, in

mandating this requirement, the Legislature took into account several concerns with

protection of the public from the recidivism of sex offenders being of “paramount concern.”

The Legislature also mandated that sex offenders, like Mount, provide their addresses,

photographs, and fingerprints. Section 46-23-504(3), MCA (2001). As the Act states, the

information provided to the public is limited to the level designation given an offender.

Section 46-23-508, MCA. No additional information is given unless and until a law

enforcement official deems it necessary for protection of the public. Section 46-23-508,

MCA. Further, Mount may petition a court for an order relieving him of the registration

requirement, although initially he is required to register for life. Section 46-23-506(1), (3),

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MCA (2001).

¶88 This scheme is a reasonable effort on the part of the Legislature to tailor what

information is and is not disclosed. Accordingly, we conclude that the registration and

disclosure requirements are reasonable in light of the Act’s nonpunitive purpose, and we

determine that the requirements are not excessive.

SUMMARY

¶89 In summary, after analyzing both the purpose and the structure of the Act, we hold

that the intent of the Act is nonpunitive. We further hold that the effect of the Act is

nonpunitive based on an analysis of the Mendoza-Martinez factors, namely that: (1) the Act

imposes no affirmative restraint or disability on Mount; (2) the Act does not shame Mount;

(3) the Act does not implicate a finding of scienter; (4) the Act can deter crime and is not

retributive in effect; (5) the Act does not impose criminal sanctions on Mount for previous

conduct; (6) a nonpunitive purpose--i.e., protection of the public--exists for the Act; and (7)

the registration and reporting requirements are not excessive.

¶90 Accordingly, we hold that under the Smith intents-effects test, the Act does not violate

the ex post facto clauses of either the United States or Montana Constitutions.

ISSUE 2.

¶91 Do the registration and disclosure requirements of the Act deprive offenders of
any “rights” within Article II, Section 28, of the Montana Constitution, or § 46-
18-801, MCA?

¶92 We first note that this issue was not addressed in the District Court’s order. However,

Mount argued this issue in the District Court and since this question is purely one of law,

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which we review de novo, we will address Mount's contentions.

¶93 Mount argues that because he was discharged, his rights as a citizen, including his

right to privacy, were restored. As such, Mount argues that application of the retroactive

provision of the Act offends his constitutional right to privacy.

¶94 The State argues that Article II, Section 28, of the Montana Constitution, and § 46-18-

801(2), MCA, afford protection to those rights commonly considered political and civil. The

State also argues that Mount’s conviction of sexual intercourse without consent does not fall

under this category of protected rights. We agree with the State.

¶95 Article II, Section 28(2), of the Montana Constitution provides: “Full rights are

restored by termination of state supervision for any offense against the state.” When

debating Article II, Section 28, the delegates noted that “full rights,” included all civil and

political rights. Montana Constitutional Convention, Verbatim Transcript, March 9, 1972,

p. 1800. Indeed, Delegate James stated: “[o]nce a person who has been convicted has served

his sentence and is no longer under state supervision, he should be entitled to the restoration

of all civil and political rights, including the right to vote, hold office, and enter occupations

which require state licensing.” Montana Constitutional Convention, Verbatim Transcript,

March 9, 1972, p. 1800.

¶96 We echoed this same interpretation in our holding in State v. Gafford (1977), 172

Mont. 380, 563 P.2d 1129, wherein we concluded:

In our view the constitutional provision refers to those rights commonly
considered political and civil rights incident to citizenship such as the right to
vote, the right to hold public office, the right to serve as a juror in our courts

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 and the panoply of rights possessed by all citizens under the laws of the land.

Gafford, 172 Mont. at 389-90, 563 P.2d at 1134.

¶97 The restoration-of-rights statute, § 46-18-801(2), MCA, provides:

[I]f a person has been deprived of a civil or constitutional right by reason of
conviction for an offense and the person’s sentence has expired or the person
has been pardoned, the person is restored to all civil rights and full citizenship,
the same as if the conviction had not occurred. [Emphasis added.]

¶98 The language of Article II, Section 28, of the Montana Constitution does not afford

Mount the benefit he seeks here. The right of individual privacy under Article II, Section

10, of the Montana Constitution is a fundamental right. This requires that any legislative

infringement of the right be subject to strict scrutiny analysis; be justified by a compelling

state interest; and be narrowly tailored to effect only that interest. Gryczan v. State (1997),

283 Mont. 433, 449, 942 P.2d 112, 122.

¶99 While Mount's right to privacy may be implicated by having to register and disclose

his whereabouts, we conclude that the State had a compelling interest in enacting the Act.

As discussed at length above, the Act was adopted to protect the public from the recidivism

of sex offenders; to prevent victimization of vulnerable children; and to assist law

enforcement in keeping track of the whereabouts of sex offenders. Also, as discussed above,

the Act is narrowly tailored in its registration and disclosure requirements to effect only

those purposes in a reasonable manner.

¶100 Thus, we hold that the registration and disclosure requirements of the Act do not

deprive Mount of any “rights” under Article II, Section 28, of the Montana Constitution. We

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also conclude that § 46-18-801, MCA, does not provide Mount any greater protection than

does the Montana Constitution itself.

CONCLUSION

¶101 We reverse and hold that the District Court erred in granting Mount’s motion to

dismiss the charge of failing to register as a sex offender. We hold that the Act does not

violate the ex post facto clause of either the United States or Montana Constitutions under

the Smith intents-effects test. We also hold that the retroactive provision of the Act does not

violate Mount’s rights under Article II, Section 28, of the Montana Constitution, or § 46-18-

801(2) MCA.

¶102 Therefore, we reverse and remand with instructions that the trial court vacate its order

of dismissal and that it reinstate the charges against Mount.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ JIM RICE

Justice W. William Leaphart dissenting.

¶103 I dissent. I agree with the reasoning of Justices Stevens, Ginsberg and Breyer in their

dissents in Smith v. Doe (2003), ___U.S.___, 123 S.Ct. 1140, 155 L.Ed.2d 164. In

summary, Justice Stevens recognized that the unique consequences imposed by the

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registration requirement are punitive in that they share three characteristics, which in the

aggregate are not present in any civil sanction.

The sanctions (1) constitute a severe deprivation of the offender’s liberty, (2)
are imposed on everyone who is convicted of a relevant criminal offense, and
(3) are imposed only on those criminals. Unlike any of the cases that the Court
has cited, a criminal conviction under these statutes provides both a sufficient
and a necessary condition for the sanction.

Smith v. Doe, 123 S.Ct. at 1157, 155 L.Ed.2d at 189 (Stevens, J., dissenting).

¶104 Justice Stevens will never be persuaded that reporting and registration obligations that

are imposed on convicted sex offenders and no one else are not part of their punishment. “In

my opinion, a sanction that (1) is imposed on everyone who commits a criminal offense, (2)

is not imposed on anyone else, and (3) severely impairs a person’s liberty is punishment.”

Smith, 123 S.Ct. at 1158, 155 L.Ed.2d at 190 (Stevens, J., dissenting).

¶105 I agree with Justice Stevens that, although registration statutes are constitutionally

imposed punishment as applied to postenactment offenses, they offend the constitutional

prohibition on ex post facto laws when applied to preenactment offenses.

/S/ W. WILLIAM LEAPHART

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