Taylor v. Rhode Island

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1002

WILLIAM L. TAYLOR, ET AL.,

Plaintiffs, Appellees,

v.

STATE OF RHODE ISLAND, ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Raymond J. Pettine, Senior U.S. District Judge]

Before

Torruella, Chief Judge,

Cyr, Circuit Judge,

and Cummings,* Circuit Judge.

Thomas A. Palombo, Special Assistant Attorney General, with

whom Jeffrey B. Pine, Attorney General, Rebecca Tedford

Partington, Special Assistant Attorney General, and Ellen Evans

Alexander, Deputy Chief Legal Counsel, were on brief for appell-

ants.
Richard A. Sinapi, with whom Sinapi Law Associates, Ltd. and

American Civil Liberties Union, were on brief for appellees.

December 4, 1996

*Of the Seventh Circuit, sitting by designation.

CYR, Circuit Judge. The Rhode Island Department of
CYR, Circuit Judge.

Corrections ("Department") appeals from a district court judgment

declaring ultra vires and unconstitutional the Department's

application of a Rhode Island statute which would impose a

monthly offender fee upon the appellees, all of whom were sen-

tenced to probationary terms under Department supervision for

criminal offenses committed prior to the effective date of the

statute as implemented by regulations promulgated by the Depart-

ment. The district court held that the Department's interpreta-

tion of the statute exceeded its authority under the enabling

statute and that the statute, as applied to appellees, violated

the ex post facto clauses in the United States and Rhode Island

Constitutions. We vacate the district court judgment and remand

for the entry of summary judgment for appellants on the ultra

vires and ex post facto claims, and for further proceedings on

appellees' procedural due process claims.

I
I

BACKGROUND
BACKGROUND

Rhode Island General Laws 42-56-38, P.L. 1992, ch.

133, art. 97, 2, directs that "[e]ach sentenced offender

committed to the care, custody, or control of the [Department]

shall reimburse the state for the cost or the reasonable portion

thereof incurred by the state relating to such commitment."

(Emphasis added.) The offender fee statute itself expressly

delegates to the Department the power to determine its effective

date by declaring that its provisions "shall not be effective

2

until the date rules and regulations implementing its provisions

are filed with the office of the Secretary of State." Id.

The Department responded by promulgating, inter alia,

Regulation 10.07.03, designating July 1, 1994 as the effective

date of the "offender fee" program, following its filing of the

implementing regulations with the Secretary of State on June 17,

1994. See also R.I. Gen. Laws 42-56-10(v) (Powers of the

director); R.I. Gen. Laws 42-56-38 (Assessment of costs). The

Regulation further provides for "offender fee" waivers based on

inability to pay, see Regulation 10.07.03(II)(E), and, in cases

of nonpayment, authorizes notification of the appropriate crimi-

nal court at any parole or probation revocation hearing, id.

10.07.03(II)(D), as well as civil actions to collect unpaid

offender fees, id. Mere nonpayment does not constitute a parole

or probation violation, however. Id. 10.07.03(II)(D)(3). Nor

are offenders in "banked" status (i.e., either residing outside

Rhode Island or not on supervised status) liable for the fee, id.

10.07.03(II)(C)(3).

Appellees, all convicted offenders sentenced to proba-

tion prior to July 1, 1994, each received advance written notice

that the $15.00 offender fee would become effective July 1, 1994,

and subsequently received monthly bills. Appellees thereafter

commenced suit in federal district court claiming that the

offender fee statute, as applied, violates the Ex Post Facto and

Due Process clauses of the United States and Rhode Island Consti-

tutions. In due course, the parties submitted cross-motions for

3

summary judgment on a stipulated record and the district court

ruled that (i) the Department had exceeded its authority under

the enabling statute by interpreting the statute so as to render

the offender fee retroactive as to appellees and (ii) the statute

violated the Ex Post Facto Clause since it retroactively in-

creased the "punishment" for their preenactment crimes. See

Taylor v. State of Rhode Island Dept. of Corrections, 908 F.

Supp. 92 (D.R.I. 1995).

II
II

DISCUSSION1
DISCUSSION1

A. The Ultra Vires Claim
A. The Ultra Vires Claim

The district court concluded that the statutory inter-

pretation adopted by the Department exceeded the scope of its

delegated authority because it (i) results in an unauthorized

"retroactive" application and (ii) would not be accorded defer-

ence by the Rhode Island Supreme Court. As the plain language of

the statute demonstrates that the Department did not exceed its

mandate, we demur.

Under Rhode Island law, it "is well established . . .

that statutes and their amendments are presumed to apply prospec-

tively." Hydro-Manufacturing v. Kayser-Roth, 640 A.2d 950, 954

(R.I. 1994). See also VanMarter v. Royal Indem. Co., 556 A.2d

1We review summary judgment rulings de novo, and must uphold

them if the record, "viewed in the light most favorable to the
nonmoving party, reveals no trialworthy issue of material fact
and the moving party is entitled to judgment as a matter of law."
Velez-Gomez v. SMA Life Assur. Co., 8 F.3d 873, 874-75 (1st Cir.

1993).

4

41, 44 (R.I. 1989); Lawrence v. Anheuser-Busch, Inc., 523 A.2d

864, 869 (R.I. 1987). It is only in the event that "it appears

by strong, clear language or necessary implication that the

Legislature intended the statute or amendment to have a retroac-

tive effect," id.; see also Pion v. Bess Eaton Donuts Flour Co.,

Inc., 637 A.2d 367, 371 (R.I. 1994), that the new enactment "will

be interpreted to operate retrospectively." Avanzo v. Rhode

Island Dept. of Human Servs., 625 A.2d 208, 211 (R.I. 1993).

The statute itself explicitly states that the offender

fee "shall not be effective until the date the rules and regula-

tions are filed." R.I. Gen. Laws 42-56-38. Thus, its plain

language requires no interpretation, see Whitehouse v. Rumford

Liability & Ins. Co., 658 A.2d 506, 508 (R.I. 1995), as it

mandates prospective application. See, e.g., Hydro-Manufactur-

ing, 640 A.2d at 955 (statute which states that it "shall take

effect upon passage" evinces plain legislative intent that it be

given only prospective application); Avanzo, 625 A.2d at 211

(holding that phrase "shall take effect" indicates legislative

intent that statute be given prospective effect). As the Rhode

Island Legislature explicitly delegated to the Department the

responsibility for promulgating and filing the required imple-

menting rules and regulations with the Secretary of State before

the offender fee program could take effect, R.I. Gen. Laws 42-

56-38, and there is no claim that the Department failed to comply

with the legislative mandate, its designation of a later (July 1,

1994) effective date could not render its interpretation either

5

ultra vires or retroactive.2

B. The Ex Post Facto Claim
B. The Ex Post Facto Claim

The district court awarded appellees summary judgment

on their claims that the offender fee statute violates the Ex

Post Facto Clause under both the United States Constitution and

the Rhode Island Constitution.3 As the Rhode Island Supreme

Court has held that Federal Ex Post Facto Clause jurisprudence

likewise guides the required analysis under the Rhode Island

Constitution, Lerner v. Gill, 463 A.2d 1352, 1356 (R.I. 1983),

cert. denied, 472 U.S. 1010 (1985), these claims merge.

The Ex Post Facto Clause effectively prohibits laws

2It appears that the district court may have been misled by
an ambiguity in the statutory language, which states that the
offender fee shall apply to "each sentenced offender committed to

the care, custody or control of the [Department]." R.I. Gen.
Laws 42-56-38 (emphasis added). The court correctly noted that
"[t]he word 'committed' could mean either 'who has been commit-
ted,' which would include existing probationers, or 'who is
committed,' which would implicate only new probationers."
Taylor, 908 F. Supp. at 104. However that may be, we suggest,

the Department's interpretation cannot be considered ultra vires.

As the agency responsible for implementing and enforcing the
statute, it was entirely appropriate that the Department
disambiguate the statutory language. See Gallison v. Bristol

Sch. Comm., 493 A.2d 164, 166 (R.I. 1985).

We need not decide at this time, however, whether the
Department's interpretation of the term "committed" would be
material under a due process analysis. See Avanzo, 625 A.2d at

208 (retroactive application violates due process); Lawrence, 523

A.2d at 864 (due process challenge to explicitly-retroactive
legislation); but see Rhode Island Depositors Economic Protection

Corp. v. Brown, 659 A.2d 95, 103 (R.I.), cert. denied, 116 S. Ct.

476 (1995) (retrospectivity alone does not render statute viola-
tive of due process).

3Article 1, 10, of the United States Constitution pro-
vides: "No State shall . . . pass any . . . ex post facto Law."
Article 1, 12, of the Constitution of the State of Rhode Island
reads: "No ex post facto law . . . shall be passed."

6

"'retroactively alter[ing] the definition of crimes or

increas[ing] the punishment for criminal acts.'" California

Dept. of Corrections v. Morales, 115 S. Ct. 1597, 1601 (1995)

(quoting Collins v. Youngblood, 497 U.S. 37, 43 (1990)). See

also Hamm v. Latessa, 72 F. 3d 947, 956 (1st Cir. 1995), cert.

denied, 117 S. Ct. 154 (1996). Thus, ex post facto laws operate

retroactively either to redefine a crime or increase its "punish-

ment." Morales, 115 S. Ct. at 1602 n.3. See also Dominique v.

Weld, 73 F.3d 1156, 1162 (1st Cir. 1996).

It would appear that the parties failed to call the

district court's attention to significant precedents governing

the pivotal determination whether civil fees constitute "punish-

ment." See Taylor, 908 F. Supp. at 98. Although it involved a

"double jeopardy" claim, United States v. Halper, 490 U.S. 435

(1989), applies as well in the ex post facto context. See Martel

v. Fridovich, 14 F.3d 1, 3 (1st Cir. 1993) (citing Halper for the

view that a civil sanction is "punishment" only when it serves

the aims of retribution or deterrence).4 As we explained recent-

ly, the Halper "punishment" test applies to "fines, forfeitures,

and other monetary penalties designed to make the sovereign whole

for harm or loss that is quantifiable in monetary terms." United

States v. Stoller, 78 F.3d 710, 717 (1st Cir.) , cert. dismissed,

S. Ct. (1996). Since it is clear that the challenged

4Subsequent to the district court decision in this case, the
Rhode Island Supreme Court adopted the Halper test for determin-

ing whether a civil fee constitutes "punishment" under the Double
Jeopardy Clause. See State v. One Lot of $8,560, 670 A.2d 772

(R.I. 1996).

7

offender fee fits the Stoller mold, the Halper "punishment" test

applies. See also Artway v. Attorney General of State of New

Jersey, 81 F. 3d 1235, 1256 n. 18 (3d Cir. 1996) (noting that

Halper test applies because Ex Post Facto Clause serves aims

similar to Double Jeopardy Clause); DiCola v. Food & Drug Admin.,

77 F.3d 504, 506-07 (D.C. Cir. 1996) (applying Halper test to

both ex post facto and double jeopardy claims); Bae v. Shalala,

44 F.3d 489, 492-93 (7th Cir. 1995) (employing Halper standard to

determine whether civil sanction implicates ex post facto con-

cerns).

Halper adapted the Supreme Court's longstanding subjec-

tive test for defining "punishment," see DeVeau v. Braisted, 363

U.S. 144, 160 (1960) ("The question is . . . whether the legisla-

tive aim was to punish that individual for past activity."), by

coupling it with an objective standard. Accordingly, under the

current regime governing civil provisions, we inquire not only

whether the legislative intent was punitive in nature, but

whether the challenged civil provision is "so extreme . . . as to

constitute punishment." Halper, 490 U.S. at 442.

For purposes of determining whether a law is penal in

nature, "the labels 'criminal' and 'civil' are not of paramount

importance." Id. at 447. Rather, the court must "assess[]. . .

the [sanction] imposed and the purposes [it] may fairly be said

to serve. Simply put, a civil . . . sanction constitutes punish-

ment when the sanction as applied in the individual case serves

the goals of punishment[,]" id. at 448; see Martel, 14 F.3d at 3;

8

that is to say, retribution and deterrence. Halper, 490 U.S. at

448.

On its face, the offender fee statute, suitably located

among other Rhode Island civil statutes, imposes a civil charge.5

The modest fee authorized by the statute comprises no part of any

sentence imposed for the crimes committed by offenders. Rather,

it is expressly designed to "reimburse" the Department for costs

directly associated with providing goods and services required to

supervise probationers and parolees living in the community.

R.I. Gen. Laws 42-56-38. Moreover, all offender fee revenues

are dedicated to such use, Regulation 1.12.01(IV)(K), and waivers

are available to offenders unable to pay, Regulation

10.07.03(II)(E). Finally, the same monthly fee is assessed

against all offenders released into the community who are cur-

rently under Department supervision, without regard to the nature

or severity of their respective offenses.6 In our judgment, so

5Our research discloses no relevant legislative history.

6In determining that the offender fee constituted "punish-
ment," the district court ruled that it was part of "the law
annexed to the crime," Calder v. Bull, 3 U.S. 386, 390 (1798),

since probation is punishment and the offender fee is linked to
appellees' probationary sentences. In our view, this analysis
overlooks several determinative distinctions.
First, though a probationary sentence is "punishment," the
supervisory services for probationers released into the community
are largely rehabilitative, both in nature and purpose. See R.I.

Gen. Laws 42-56-4(c) (Organization of department) ("Rehabilita-
tive services shall include . . . intermediary sanctions (includ-
ing but not limited to . . . probation, parole, restitution, and
community service) . . . ."). See also United States v. Cardona,

903 F.2d 60, 62 (1st Cir. 1990) (noting that probation serves
goals of rehabilitation and public safety), cert. denied, 498

U.S. 1049 (1991); Tillinghast v. Howard, 287 A.2d 749, 752 (R.I.

1972) ("[I]t is for the purpose of giving a convicted accused the

9

modest a cost-based supervisory fee reasonably cannot be deemed

punitive in purpose, especially since any conceivable retributive

or deterrent effect could only be inconsequential. See Martel,

14 F.3d at 3.

Finally, we inquire whether the fee nonetheless runs

afoul of the objective test announced in Halper: a monetary

assessment "that cannot be said solely to serve a remedial

purpose, but rather can only be explained as also serving either

retributive or deterrent purposes, is punishment as we have come

to understand the term." Halper, 490 U.S. at 448. Under this

standard, the offender fee must be deemed "punitive" if it "bears

no rational relation to the goal of compensating the [State] for

its loss." Id. at 449.7 To state the question in this case is

to answer it.

opportunity for rehabilitation that he retains his liberty and is
placed on probation."). Second, the monthly fee is not imposed
on all offenders sentenced to probation, but only those actually
receiving the supervisory services whose costs are defrayed by
the fee. Regulation 10.07.03(II)(C)(3).
Thus, the offender fee differs materially from the fees at
issue in a case relied upon by appellees and cited by the dis-
trict court, see In re Petition of Delaware for a Writ of Manda-

mus, 603 A.2d 814 (Del. 1992), in which monetary sanctions were

imposed on the offenders at sentencing. The fees involved in

that case were blanket surcharges, calculated as percentages of
the criminal penalty, fine, or forfeiture imposed at sentencing,
rather than reimbursements for the costs of providing services to
the offenders. As the Halper Court explained, "it is the purpos-

es actually served by the sanction in question, not the underly-
ing nature of the proceeding giving rise to the sanction, that
must be evaluated." Halper, 490 U.S. at 447 n.7.

7We note no contention, and no evidence, that the $15.00
monthly fee exceeds the costs associated with providing Depart-
ment supervision of offenders released into the community. See

Halper, 490 U.S. at 452.

10

The offender fee statute mandates that "[m]onies

received under this section will accrue first to the department

of corrections for use to offset costs of the specific care or

service." R.I. Gen. Laws 42-56-38. The implementing regula-

tions in turn make clear that the offender fee was rationally

designed to promote its legislative objective; viz., reimburse-

ment of the Department for its costs in providing the required

supervisory services to its probationers and parolees. Regula-

tion 1.12.01(IV)(K). Furthermore, the implementing regulations

explicitly state that the offender fees collected from probation-

ers and parolees must be deposited in a restricted account,

exclusively available for defraying Department costs in affording

offenders the required community supervision.8 Thus, the legis-

lative intent actuating the offender fee program is entirely

remedial and its practical effect is neither retributive nor

deterrent in nature. Under the Halper test, therefore, the

offender fee is not punitive.9

8Moreover, as already noted, see supra p. 3, the offender

fee is imposed only on probationers and parolees currently under
Department supervision in the community, not upon probationers in
"banked" status. Regulation 10.07.03(II)(C)(3). Thus, rather
than a blanket fee assessed at sentencing without regard to the
commencement or duration of any term of community supervision,
the Rhode Island offender fee is directly and rationally related
to recouping the State's costs in providing supervision to the
individual offenders for whose benefit the services are rendered.
Cf. In re Petition of Delaware for a Writ of Mandamus, 603 A.2d

814 (Del. 1992); note 4 supra.

9The fact that nonpayment of the fee can be brought to the
attention of the court at a parole/probation revocation hearing,
see supra p.3, does not transform the fee into punishment. While

revocation of parole/probation might constitute punishment, the
Supreme Court explained in Morales that courts must determine

11

III
III

CONCLUSION
CONCLUSION

For the foregoing reasons, the district court judgment

is reversed and the case is remanded for further proceedings on

appellees' procedural due process claims under state and federal

law. The parties shall bear their own costs.

SO ORDERED.
SO ORDERED

whether a legislative change "produces a sufficient risk of
increasing the measure of punishment." Morales, 115 S. Ct. at

1603. A legislative change which creates only a "speculative and
attenuated possibility of producing the prohibited effect of
increasing the measure of punishment" is insufficient to raise
the ex post facto specter. Id. As the district court recog-

nized, any possible link between nonpayment of the offender fee
and the revocation of parole/probation is too attenuated to
render the offender fee violative of the Ex Post Facto Clause,
Taylor, 908 F. Supp. at 101, especially since inability to pay

constitutes grounds for waiver.

12