F.R. v. St. Charles County Sheriff's Department

MARY R. RUSSELL, Judge,

dissenting.

I respectfully dissent. F.R. is a registered sex offender because he committed five sex crimes against a child — forcible rape, incest, forcible sodomy, first-degree statutory rape, and first-degree statutory sodomy. Raynor is also a registered sex offender because he committed a sexual crime against a child.1 I find nothing unconstitutional about the protections against sex offenders that the General Assembly has enacted pursuant to sections 566.147 and 589.426.2 I would reject F.R.’s arguments that section 566.147, which aims to limit the proximity of sex offenders to Missouri’s schools and day-cares, is unconstitutionally retrospective in its application. I would also reject Ray-nor’s contention that his constitutional rights are impacted impermissibly by a statute preventing him from distributing Halloween candy to children. I would affirm the trial court’s declaration that section 566.147 is constitutional, and I would reverse the trial court’s judgment that section 589.426 is unconstitutional.

The statutes challenged by F.R. and Raynor have been enacted by the legislature specifically to articulate conduct boundaries for child sex offenders that strive to prevent sex offenders from victimizing children. See J.S. v. Beaird, 28 S.W.3d 875, 876 (Mo. banc 2000) (articulating that the legislature’s restrictions on sex offenders are aimed at protecting children from violence at the hands of sex *67offenders). The majority focuses its discussion on the impact the challenged statutes have on sex offenders, but this Court should not fail to consider the legislature’s perspective when analyzing constitutional issues. While consideration of the legislature’s goals is not the end-all determination of constitutional validity, legislative purpose must be accorded due respect, and it is evident in this Court’s standards of review that great deference is given to the legislature when reviewing the constitutional validity of statutes. See, e.g., Cannon v. Cannon, 280 S.W.3d 79, 83 (Mo. banc 2009) (noting that statutes are not declared unconstitutional unless they clearly contravene some constitutional provision and discussing that courts make “every reasonable intendment” to uphold a statute’s constitutional validity). These highly deferential standards respect the balance between legislative and judicial functions and reflect this Court’s regard for the legislature’s role as a collective representative of community values and a protector of public safety.

The majority does not discuss the State’s position that the challenged sex offender statutes are valid exercises of the State’s police power and are needed to protect the public’s safety and welfare, particularly the safety of children. The State highlights that both statutes aim to eliminate close proximity between children and sex offenders. The residency restrictions provide a 1,000-foot buffer zone between sex offender residences and the schools and daycares that are entrusted with the daily care of thousands of Missouri children; and the Halloween provisions endeavor to prevent children from being lured by candy to sex offenders’ residences on Halloween night.

The Eighth Circuit has expressed its respect for the legislature’s prerogative to exercise its police powers to enact restrictions on sex offenders’ residences, discussing that sex offender residency restrictions are a rational policy option for reducing the proximity between dangerous offenders and locations frequented by children.3 See Weems v. Little Rock Police Dep’t, 453 F.3d 1010, 1015 (8th Cir.2006), cert. denied, 550 U.S. 917, 127 S.Ct. 2128, 167 L.Ed.2d 862 (2007), (upholding Arkansas’s sex offender residency restrictions); Doe v. Miller, 405 F.3d 700, 715-16 (8th Cir.2005), cert. denied, 546 U.S. 1034, 126 S.Ct. 757, 163 L.Ed.2d 574 (2005) (upholding Iowa’s sex offender residency restrictions). The Eighth Circuit in Miller warned courts to “proceed with restraint” in “extending constitutional protection to an asserted right or liberty interest” in a constitutional challenge, so as to avoid placing a “matter outside the arena of public debate and legislative action.” 405 F.3d at 713-14 (internal references omitted). It noted “the authority of a state legislature to make judgments about the best means to protect the health and welfare of its citizens in an area where precise statistical data is unavailable and human behavior is necessarily unpredictable.” Id. at 714.

Keeping in mind this Court’s standards of review that favor findings of constitutional validity, I would follow the Eighth Circuit’s lead and uphold sex offender residency restrictions. I believe sections 566.147 and 589.426 are valid and constitutional exercises of the State’s power to *68protect its youngest, most defenseless citizens.

I do not posit that this Court must uphold sex offender restrictions in complete deference to the legislature’s will. But in these cases, I disagree with the majority’s conclusions that the challenged statutory provisions are unconstitutionally retrospective. I believe that sections 566.147 and 589.426 are constitutional because they do not impact sex offenders’ “vested” or “fundamental rights.” And I disagree with the majority’s contention that these statutes impose on F.R. or Ray-nor new duties, obligations, or disabilities that render the statutes unconstitutionally retrospective.

The majority focuses its analysis on Squaw Creek Drainage District v. Turney’s definition of a retrospective law as one that creates a new obligation, duty, or disability based on a past transaction. 235 Mo. 80, 138 S.W. 12, 16 (1911). It contends that there is no need to analyze F.R.’s and Raynor’s cases in the context of Jerry-Russell Bliss, Inc. v. Hazardous Waste Management Commission’s important point that a statute is unconstitutionally retrospective if it impairs vested rights acquired under existing laws. See 702 S.W.2d 77, 81-82 (Mo. banc 1985). But I believe that Jerry-Russell Bliss’s vested rights analysis should be undertaken in determining F.R.’s and Raynor’s statutory challenges.

Since 1875, Missouri’s retrospective laws prohibition has read:

Ex post facto laws — impairment of contracts — irrevocable privileges.— That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted.

Art. I, sec. 13 (formerly Mo. Const, of 1875, art. II, sec. 15). This constitutional provision has never provided the courts an express definition for “retrospective” or mandated a framework for analyzing challenges brought under this provision.

At Missouri’s 1875 Constitutional Convention, Missouri’s constitutional delegates debated Missouri’s retrospective laws prohibition at length. See Debates of the Missouri Constitutional Convention. 1875, vol. II, 369-447. Although a retrospective laws prohibition had been in place since Missouri’s 1820 constitution, the 1875 drafters debated whether this prohibition should be enhanced with an express prohibition against ex post facto laws, which were already impermissible under the federal constitution. See, e.g., id., vol. II, 369-75, 382, 391. The ex post facto prohibition was added in 1875 to the general retrospective laws prohibition. Id., vol. IV, 94-95. More important to this case, however, the debaters also discussed, but did not add, a proposed amendment to expressly define the term “retrospective” in the constitution. The proposed amendment read:

Nor can any law curative or confirmatory in its operation, or which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new debt, or attaches a new disability in respect to transactions already past.

Id, vol. 11,376.

The author of this amendment noted Missouri’s retrospective laws prohibition was not found in the United States Constitution and only appeared in four states’ constitutions (Missouri, New Hampshire, Tennessee, and Texas). Id. He noted his disbelief that the prohibition on ex post facto laws for criminal matters had not been expanded by more states to prevent passage of retrospective laws relating to civil matters. Id., vol. II, 382-84. He *69highlighted that “in no instance ... have the courts given effect to [retrospective legislation relating to civil transactions] so as to disturb vested rights, or the settled rights of property.” Id., vol. II, 382. But because the concept was new, he believed definitional language was needed in the constitutional provision to ensure proper construction of the term “retrospective” by Missouri’s courts, which he felt had been giving the term different interpretations. See id., vol. II, 376. It was discussed at length that this proposed amendment was a response to a recent court decision relating to a controversial county road bonding issue, and the debaters argued whether the amendment was needed to protect Missourians’ land and pocketbooks from improper bonding or taxation requirements. See id., vol. II, 376-447.

When the 1875 debate concerning the retrospective laws prohibition is read in total, it is clear that the chief concern of Missouri’s constitutional drafters was whether the legislature would pass a retrospective law that would tread on citizens’ financial or property interests. See id., vol. II, 376-447. One convention speaker stated the purpose of prohibiting retrospective legislation as follows: “[W]e endeavor as the representatives of the people to ... limit and curb [legislative powers so] that the people ... are not to go to bed at night in the happy conceit that they owe no debt, and wake up in the morning to learn that the General Assembly of Missouri has imposed on them a debt of five or seven hundred thousand dollars for nothing.” Id., vol. II, 393.

Because the definitional amendment was not incorporated at the 1875 convention, the “new duty, obligation, or disability” standard the majority relies on today was a judicial creation of this Court’s 1911 Squaw Creek opinion, which provided no attribution or citation for this standard. See 138 S.W. at 16. Considering Missouri’s retrospective laws prohibition in its historical context, I believe that the majority’s opinion makes too much of the “new duty, obligation, or disability” test and is too dismissive of the constitutional drafter’s intended analysis of whether a law is unconstitutionally retrospective because it treads on vested rights.

Vested rights are those to which there is “a title, legal or equitable, to the present or future enjoyment of property or to the present or future enjoyment of the demand, or a legal exemption from a demand made by another.” La-Z-Boy Chair Co. v. Dir. of Econ. Dev., 983 S.W.2d 523, 525 (Mo. banc 1999) (internal quotations omitted). This Court has recognized that “vested means fixed, accrued, settled or absolute.” Id. A right is not vested if it is based merely on an expectation that the law will not change, because “no one has a vested right that the law will remain unchanged.” Cannon, 280 S.W.3d at 84-85 (citing La-Z-Boy, 983 S.W.2d at 525, for the proposition that “a right is not ‘vested’ if it is based on ‘a mere expectation based upon an anticipated continuance of the existing law’ ”).

F.R. complains that section 566.147 impedes on his “vested right to choose where he would live without respect to his status as a convicted person.” But it is clear that F.R. had no vested right to believe the law would never change to restrict his residency choices. And F.R. has no vested or property right interest at stake if he cannot reside at his fiancée’s residence. See Miller, 405 F.3d at 714 (rejecting that there is a “fundamental right” to reside in a place of one’s own choosing; upholding Iowa’s sex offender residency restrictions because no fundamental right was impacted and the restrictions rationally advanced the legitimate governmental purpose of promoting children’s safety).

*70Like F.R., Raynor also cannot show that the sex offender restrictions he challenges tread on his vested or fundamental rights. He had no vested right to the unrestricted distribution of Halloween candy, and he had no vested right to believe the law would never change to restrict Halloween activities.

The sex offender restrictions challenged by F.R. and Raynor should be upheld because they do not run afoul of Missouri’s constitutional framers’ intent to protect citizens’ vested rights, finances, and property from retrospective legislation.

Further, in addition to my belief that F.R.’s and Raynor’s vested and fundamental rights are not impacted by the restrictions in sections 566.147 and 589.426,1 also disagree with the majority’s holding that these statutes impose on F.R. or Raynor a “new duty, obligation, or disability” that renders the statutes unconstitutionally retrospective.

In Cannon, this Court highlighted that Doe v. Phillips, 194 S.W.3d 833 (Mo. banc 2006), held that the legislature does “not run afoul of the bar on retrospective laws [by] imposing additional collateral consequences to [a defendant’s] prior guilty pleas.” Cannon, 280 S.W.3d at 84 (emphasis added). I would hold that the application of section 566.147’s residency restrictions to F.R., which do not impact his preexisting residence,4 should be upheld as collateral consequences. I also believe that the Halloween restrictions imposed on Raynor, which last only five and a half hours on one day a year, should be upheld as collateral consequences.

The majority opines that section 566.147 imposes on F.R. a new obligation or duty to identify the locations of schools and child-care facilities and to determine the distance between his proposed new residence and those locations. But section 566.147 does not impose an obligation on F.R. to independently accomplish distance measurements related to the statute. As a registered sex offender, F.R. has an existing obligation, pursuant to section 589.414.1, RSMo Supp.1998, to notify law enforcement when he moves to a new residence. After F.R. complies with his registry obligations, law enforcement then determines whether F.R.’s new residence is in compliance with the distance regulations of section 566.147. In this case, for example, F.R. was notified by the sheriff that his new residence was too close to the child-care facility property. Nothing in section 566.147 requires F.R. to undertake independent distance measurements. In this case, F.R. chose to obtain his own distance surveys, but he was under no statutory obligation to do so.

The majority notes that this Court recently found there was no retrospective laws violation where owners of a dam were made to obtain post-ownership permits because the duty imposed in obtaining the permits was “based on the current existence, operation and safety of the dam.” *71State ex rel. Koster v. Olive, 282 S.W.3d 842, 848 (Mo. banc 2009). The majority distinguished Olive from this Court’s holding in Phillips because it was not based on a single past criminal act, but rather “the present situation and need for present protection” that justified the need for the permits. Arguably, though, the restrictions imposed on F.R. and Raynor are similarly not founded solely on their past criminal acts. Instead, the restrictions provide children “present protection” from the “present situation” of sex offenders’ residence in their neighborhoods.

Because I believe nothing in the challenged statutes impact sex offenders F.R.’s and Raynor’s vested rights, and because the statutes impose on them merely collateral consequences, I do not believe that Missouri’s constitutional prohibition on retrospective laws requires the invalidation of sections 566.147 and 589.426. I would uphold these restrictions that the legislature has determined are necessary to protect children from sex offenders.

. He was convicted in 1988 in the State of Washington for indecent liberties with a child less than 14 years old.

. All references to sections 566.147 and 589.426 are to RSMo Supp. 2008, unless otherwise indicated.

. While the future dangerousness of F.R. and Raynor is not at issue in the instant cases, the dangerousness of sexual offenders is acknowledged widely, particularly because of concerns about sex offender recidivism. See, e.g., Doe v. Phillips, 194 S.W.3d 833, 839-40 (Mo. banc 2006) (noting that a purpose of sex offender registration laws is to "respond to the known danger of recidivism among sex offenders”).

. In R.L. v. Missouri Department of Corrections, this Court determined that section 566.147’s residency restrictions were unconstitutionally retrospective when used to compel a sex offender to relocate from a residence he had established before the residency restrictions were enacted, as the restrictions wrongly imposed a new obligation on the offender. 245 S.W.3d 236, 237-38 (Mo. banc 2008). After R.L., section 566.147.2 was amended to remove the mandate that offenders relocate from already-established residences. The statute now requires already-established offenders to simply provide notification and proof that their residency predated the location of a school or child-care facility within 1,000 feet of their residence. Unlike the majority, I do not find this Court's decision in R.L. instructive to F.R.'s case, because F.R. moved to the residence at issue after the 1,000-foot distance prohibition was enacted.