dissenting.
On March 12,1980, Robert C. Creekpaum sexually assaulted a child. At that time, the statute of limitations for such an offense was five years, so that Creekpaum could have been prosecuted at any time up until March 12, 1985. See AS 12.10.010. Creekpaum was not charged with this offense, however, until May 17,1985, roughly sixty days after the original statute of limitations had expired. But the legislature, in 1988, had extended the statute of limitations. See AS 12.10.020(c). The question is, could the amended statute of limitations be applied to Creekpaum, thus permitting his prosecution? I believe it could, without violence to the constitution, and therefore dissent from this court’s decision which requires dismissal of the prosecution.
I admit at the outset that the cases are somewhat confusing regarding the applicable principles. Nevertheless, I believe this confusion can be dispelled if we recognize that in order to enact a retrospective statute, that adversely affects a criminal defendant, the legislature must jump three hurdles: first, it must make its intention clear as indicated in AS 01.10.100(a); second, it must satisfy the requirements of the ex post facto clauses of the Alaska Consti*569tution Article I, section 15 and the United States Constitution Article 1, section 10; and, third, it must satisfy substantive and procedural due process guaranteed in Alaska Constitution Article 1, section 7 and in the Fourteenth Amendment of the United States Constitution.1
The majority concedes that the legislature expressly intended to give retrospective application of the amendment to the statute of limitations, thus satisfying AS 01.10.100(a). Consequently, we are concerned only with the ex post facto and due process clauses of the respective constitutions. The cases cited by the majority establish that the courts have not always kept discussions of the ex post facto and due process clauses separate in their opinions. Nevertheless, I believe those provisions can be distinguished if we recognize that a statute violates the ex post facto prohibition if, and only if: (1) it makes conduct criminal which would have been innocent when undertaken; (2) it aggravates a crime or makes it greater than it was when committed; (3) it permits imposition of a different and more severe punishment than was permissible when the crime was committed; and, (4) it changes the legal rules of evidence to permit less or different testimony to convict the offender than was required when the crime was committed. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798).2 On the other hand, it violates due process if it impinges upon a right that vested prior to the enactment. See, e.g., Weaver v. Graham, 450 U.S. 24, 29-30, 101 S.Ct. 960, 964-65, 67 *570L.Ed.2d 17 (1981) (evaluating whether a right has vested is important for claims under the due process clause, which protects only pre-existing entitlements).
In this case, Creekpaum’s crime occurred in March 1980; a five-year statute of limitations applied. See AS 12.10.010. He was thus prosecutable until March 1985. The legislative extension of the statute of limitations occurred in 1983, while prosecution of Creekpaum was still possible. See AS 12.10.020(c). Consequently, it cannot be said that the extension of the statute of limitations: changed the elements of his offense to make his innocent actions into criminal ones; aggravated his crime or made it greater than it was when he committed it; permitted imposition of a different and more severe punishment than was permissible when the crime was committed; or, changed the legal rules to permit less or different testimony to convict him. Under the circumstances, the extension of the statute of limitations clearly did not violate the ex post facto clause of the state or federal constitutions. Additionally, since it has not been demonstrated to have violated any vested right of Creekpaum, he has not been deprived of due process. His prosecution should therefore be permitted. See State v. Hodgson, 44 Wash.App. 592, 722 P.2d 1336, 1342-43 (1986).
In conclusion, I believe the cases can best be explained as holding that the ex post facto clauses of the state and federal constitutions are intended to protect an individual’s ability to know the law so that he can conform his conduct to its requirements, or, should he choose to violate the law, so that he can anticipate the consequences of a violation. Changes in the statutes of limitation that are made prior to the time that the original statute expires do not frustrate such reasonable predictions and resulting expectations. It is this factor which, in my view, accounts for the virtually unanimous determination by reviewing courts that such changes do not violate the constitutions.3 I would reverse the trial court’s dismissal of the prosecution against Creekpaum.
. Substantive due process, in context, prevents statutory elimination of vested rights. In addition, the state and federal due process clauses protect reasonable expectations by precluding "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application_” State v. O'Neill Investigations, Inc., 609 P.2d 520, 531 (Alaska 1980) (quoting Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)). Retrospective changes in the elements of a crime or the prescribed punishment violate a person’s ability to predict the legal consequences of her or his conduct in a similar way. It must be remembered that the earlier United States Supreme Court cases which defined the perimeters of the ex post facto clause preceded the enactment of the fourteenth amendment and the judicial development of the concept of substantive due process. These early cases would probably have been treated as "due process” rather than "ex post facto ” cases had they arisen at a later time. See, e.g., Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798), and its progeny.
. "The proscription against ex post facto laws insures that citizens receive fair warning of the potentially criminal nature of their conduct and restricts governmental power by restraining arbitrary and potentially vindictive legislation.” 2 C. Sands, Sutherland Statutory Construction, § 42.01 at 441 (4th ed. 1986). It is not contended that the legislature arbitrarily or vindictively set out to get Creekpaum by passing the legislation in question. In fact, had the government been aware of Creekpaum’s conduct in 1983 he could have been prosecuted under the existing statute of limitations. Thus our concern must be: did the change in the law, if applied to Creekpaum, deprive him of "fair warning,” i.e., frustrate any reasonable expectation he might have had at the time he first contemplated commission of his crime? In order to answer this question and understand Justice Chase’s intention in Calder, it is useful to refer to O.W. Holmes, The Path of the Law, 10 Harv.L.Rev. 457 (1897). Holmes reasoned that ”[t]he prophecies of what the court will do in fact, and nothing more pretentious, are what I mean by the law.” Id. at 460-61. He prepared his listeners for his thesis differentiating law from morals as follows:
If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.
Id. at 459.
While the constitution was ratified in 1789 and Calder was decided in 1798,1 believe the ex post facto clause, as interpreted in Calder, was intended to protect the “bad man” in his reasonable predictions regarding the criminal consequences of his behavior. I also believe that the cases can be reconciled in this way. Clearly, Creekpaum, when contemplating sexual assaults on children, would want to know what conduct was criminal and what punishment might be forthcoming. He might also want to know what evidence was necessary for conviction. I cannot believe, however, that he would reasonably allow a decision whether to molest a child, to rest on whether a prosecution could be brought in five years or five years and sixty days. If he would, I do not believe that such a decision is one protected by the ex post facto clause.
. There is nothing in Weaver, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), that undermines this analysis. In Weaver, the court found that retrospective changes in the manner of calculating good time "substantially alters the consequences attached to a crime already completed and therefore changes ‘the quantum of punishment.’ ” 450 U.S. at 33, 101 S.Ct. at 966 (emphasis added) (citation omitted). The invalidated statute therefore fell within the core of the prohibition announced in Calder (i.e.., a retrospective change in the punishment provided). It is important to stress that the court in Weaver recognizes that the purpose of the constitutional protection is to give fair warning and avoid vindictive and arbitrary legislation. 450 U.S. at 28-29, 101 S.Ct. at 963-64. As we have seen, a change in the statute of limitations that applies equally to everyone and that does not affect cases as to which the existing statute has already expired cannot be, in context, arbitrary or vindictive. Thus “fair notice” is the only constitutional purpose implicated in the ex post facto clauses as they apply to the extension of the statute of limitations which we are considering in this case. See n. 1, supra.