MAINE SUPREME JUDICIAL COURT                                                    Reporter of Decisions
Decision: 2013 ME 24
Docket:   Ken-11-454
Argued:   September 13, 2012
Decided:  March 5, 2013

Panel:       SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and
             JABAR, JJ.
Majority:    SAUFLEY, C.J., and LEVY, MEAD, and GORMAN, JJ.
Dissent:     ALEXANDER, SILVER, and JABAR, JJ.


                                      JOHN DOE I et al.

                                                 v.

                                 ROBERT WILLIAMS et al.

MEAD, J.

         [¶1] John Does I, III, IV, V, VI, VII, VIII, X, XIII, XVI, XVIII, XXIV, and

XLIII, joined by John Does XIX1 and XXIII, appeal from a summary judgment

entered in the Superior Court (Kennebec County, Murphy, J.) in favor of numerous

State officials on the parties’ cross-motions for summary judgment. The Does

challenge the constitutionality of Maine’s Sex Offender Registration and

Notification Act of 1999 (SORNA of 1999), 34-A M.R.S. §§ 11201-11256 (2012).

We affirm the trial court’s judgment, concluding that SORNA of 1999 as amended




   1
     John Doe XIX was originally John Doe XVIII, but the trial court changed his pseudonym because it
was already assigned to another John Doe.
2

following our decision in State v. Letalien, 2009 ME 130, 985 A.2d 4, does not

violate the constitutional rights of the litigants before us.

                                    I. BACKGROUND2

        [¶2] John Doe I was previously before us in Doe v. District Attorney,

2007 ME 139, 932 A.2d 552. John Doe I pleaded guilty to and was convicted of

unlawful sexual contact with a family member, id. ¶ 2, and in 1985 was sentenced

to five years’ imprisonment with all but sixty days suspended and two years’

probation. He has not been convicted of any sex offenses since.

        [¶3]    In 2005, the Legislature amended SORNA of 1999 to apply

retroactively to all sex offenders sentenced on or after January 1, 1982. P.L. 2005,

ch. 423, § 1 (effective Sept. 17, 2005) (codified at 34-A M.R.S. § 11202(1)

(2012)); see Doe, 2007 ME 139, ¶ 14, 932 A.2d 552. John Doe I sued several

State officials in their official capacities, arguing that the retroactive application of

SORNA of 1999 violated his rights to procedural and substantive due process,

equal protection, and a civil jury trial, pursuant to the Maine and United States

Constitutions. Doe, 2007 ME 139, ¶ 5, 932 A.2d 552. Upon the State officials’

motion to dismiss, the Superior Court (Kennebec County, Studstrup, J.) dismissed


    2
      Doe v. District Attorney, 2007 ME 139, ¶¶ 10-19, 932 A.2d 552, and State v. Letalien,
2009 ME 130, ¶¶ 4-12, 985 A.2d 4, provide a detailed history of sex offender laws in Maine. The
background we provide here focuses on the factual and procedural history of the litigants and the
amendments to SORNA of 1999 after Letalien.
                                                                                                           3

John Doe I’s complaint for failure to state a claim upon which relief could be

granted. Id. ¶ 1. John Doe I appealed, and we concluded that (1) further factual

development was required to determine whether SORNA of 1999 was an

unconstitutional ex post facto law3 as applied to him,4 and (2) he should not have

been foreclosed from pursuing his other theories of relief. Id. ¶¶ 1, 36-37. We

then remanded the case to the trial court for further proceedings on those issues.

Id. ¶ 37. On remand, John Doe I’s case was consolidated with cases brought by

other convicted sex offenders who were also challenging the retroactive

application of SORNA of 1999.

        [¶4] In 2009, the Legislature created an exception from the duty to register

for sex offenders meeting certain criteria who were sentenced on or after

January 1, 1982, and before June 30, 1992. P.L. 2009, ch. 365, § B-3 (effective

Sept. 12, 2009) (codified at 34-A M.R.S. § 11202-A(1) (2009)).5 Sex offenders

fall within the exception if, among other criteria, their underlying convictions did

not include more than one Class A sex offense or sexually violent offense, they had

   3
      Although John Doe I did not assert an ex post facto violation, the Superior Court treated his
procedural due process claim as an ex post facto claim. Doe, 2007 ME 139, ¶¶ 1, 8, 932 A.2d 552.
   4
      We later held in Letalien that “[f]or ex post facto purposes, SORNA of 1999 is properly evaluated
on its face” rather than by examining its application to any given individual. 2009 ME 130, ¶ 34,
985 A.2d 4.
   5
      Title 34-A M.R.S. § 11202-A (2009) was amended after Letalien, 2009 ME 130, 985 A.2d 4, and
will be discussed in detail later in this opinion. See P.L. 2009, ch. 570 (effective Mar. 30, 2010) (codified
at 34-A M.R.S. §§ 11202-A, 11222, 11225-A (2012)).
4

no prior sex offense convictions, and they had no subsequent convictions for

crimes punishable by imprisonment of one year or more.                    34-A M.R.S.

§ 11202-A(1)(A)-(F). Because of the newly enacted exception, many of the John

Does became eligible for relief from the duty to register and withdrew from the

litigation. Some Does who were eligible for relief, however, chose to continue

with the litigation along with the Does who were ineligible for relief.

      [¶5] We decided Letalien shortly after 34-A M.R.S. § 11202-A(1) became

effective.   Pursuant to the Sex Offender Registration Act of 1995, Letalien’s

sentence included a requirement that he register for fifteen years on the State’s sex

offender registry; the sentence provided that after five years Letalien could seek a

waiver “upon a finding that [he] ‘ha[d] shown a reasonable likelihood that

registration is no longer necessary and waiver of the registration requirement is

appropriate.’” Letalien, 2009 ME 130, ¶ 5, 985 A.2d 4 (quoting 34-A M.R.S.A

§ 11121(6)(C) (Supp. 1996)). While Letalien was on probation, the Legislature

enacted SORNA of 1999, which required him to register for life, prevented him

from seeking a waiver, and established additional reporting requirements. Id.

¶¶ 6-8 (citing P.L. 1999, ch. 437, § 2 (effective Sept. 18, 1999) (codified at

34-A M.R.S.A. §§ 11201-11252 (Pamph. 1999))). Letalien challenged SORNA of

1999 as unconstitutional under the Ex Post Facto Clauses of the United States and

Maine Constitutions. Id. ¶ 1. We concluded that SORNA of 1999 “impose[d] an
                                                                                                     5

ex post facto punishment as to offenders sentenced in the years before the effective

date of [the statute] for whom registration was a required part of their sentence and

who were subsequently made subject to the more burdensome requirements.” Id.

       [¶6] In response to the Letalien decision, the Legislature amended SORNA

of 1999 by enacting P.L. 2009, ch. 570 (effective Mar. 30, 2010) (codified at

34-A M.R.S. §§ 11202-A, 11222, 11225-A (2012)). The amendments extended

the exception from registration provided by P.L. 2009, ch. 365, § B-3, making it

available to qualifying offenders sentenced through September 18, 1999, the

effective date of SORNA of 1999.6 See P.L. 2004, ch. 570, § 1. The amendments

also changed the reporting requirements for offenders’ registration information,

such as residence and place of employment. P.L. 2004, ch. 570, § 4. Ten-year

registrants are now subject to annual verification in writing and in-person

verification once every five years.               34-A M.R.S. § 11222(4-A).                 Lifetime

registrants are now subject to quarterly verification in writing and in-person

verification once every five years.             Id. § 11222(4-B).         Additionally, if a law

enforcement agency with jurisdiction over a registrant or the State Bureau of

Identification has “reason to believe the [registrant’s] appearance has changed
   6
     None of the Does were removed from the registry as a result of the latest amendments in P.L. 2009,
ch. 570 (effective Mar. 30, 2010) (codified at 34-A M.R.S. §§ 11202-A, 11222, 11225-A). Instead, they
were removed as a result of the enactment of P.L. 2009, ch. 365, § B-3 (effective Sept. 12, 2009)
(codified at 34-A M.R.S. § 11202-A(1) (2009)), which allowed Does meeting certain criteria to be
removed from the registry if they were convicted between January 1, 1982 and September 18, 1999.
6

significantly,” the agency or Bureau may instruct the registrant to appear in person

with a current photograph or to allow a new photograph to be taken, or may

instruct the registrant to submit a new photograph without appearing in person. Id.

§ 11222(4-A)(C)(1)-(2), (4-B)(C)(1)-(2).

        [¶7] John Does I, IV, V,7 VI, VIII, and XVI were initially required to

register, but successfully petitioned to be removed. John Doe XXIV was also

required to register, but he obtained a temporary restraining order preventing his

information from being publically posted; he later successfully petitioned for

removal from the registry. John Does VII, XIII, and XVIII obtained temporary

restraining orders relieving them from registering, and they were also statutorily

relieved of the registration requirement. John Does III, X, XIX, XXIII, and XLIII8

remain on the registry and have viable claims.

        [¶8]    The Does and State defendants filed cross-motions for summary

judgment.        The trial court issued its decision on the cross-motions on

August 18, 2011, denying the Does’ motion on all of their claims, and granting the

State defendants’ motion for summary judgment. The court concluded that the


    7
     John Doe V was removed from the registry after the parties submitted their briefs, but prior to oral
argument.
    8
      John Doe XLIII is not currently on the registry because he obtained a temporary restraining order,
but he is ineligible to be relieved from the registration requirement because he does not meet the
requirements of 34-A M.R.S. § 11202-A(1)(C).
                                                                                    7

cases of the Does who successfully petitioned to be relieved from the duty to

register were moot, and that SORNA of 1999 as amended after Letalien was

constitutional. The court also denied the Does’ motion for attorney fees.

        [¶9] The Does make numerous claims on appeal, namely that (A) the claims

of the John Does who are no longer required to register as sex offenders are not

moot; (B) SORNA of 1999 is an unconstitutional ex post facto law; (C) SORNA of

1999 violates article I, section 1 of the Maine Constitution; (D) SORNA of 1999

violates their procedural due process rights; (E) SORNA of 1999 violates their

substantive due process rights; (F) SORNA of 1999 violates the Equal Protection

Clauses of the Maine and United States Constitutions; (G) SORNA of 1999

violates the Maine Civil Rights Act (MCRA), 5 M.R.S. §§ 4681-4685 (2012);

(H) SORNA of 1999 violates 42 U.S.C.S. § 1983 (Lexis 2012); (I) summary

judgment was improperly granted; and (J) they are entitled to an award of attorney

fees.

                              II. STANDARD OF REVIEW

        [¶10] This case comes before us on a grant of summary judgment in favor

of the State defendants, which we review de novo and will affirm “if the record

reflects that there is no genuine issue of material fact and the movant is entitled to

a judgment as a matter of law.” Levesque v. Androscoggin Cnty., 2012 ME 114,

¶ 5, 56 A.3d 1227 (quotation marks omitted). Because we find that there are no
8

genuine issues of material facts in dispute, we evaluate whether the State

defendants are entitled to a judgment as a matter of law. Summary judgment is

properly granted when “the plaintiff fails to establish a prima facie case for each

element of [his] cause of action.” Id. (quotation marks omitted).

      [¶11]   The Does’ arguments based on procedural and substantive due

process, equal protection, and the Ex Post Facto Clause challenge the

constitutionality of SORNA of 1999. Accordingly, the Does have “the burden of

establishing [the statute’s] infirmity.”     See Letalien, 2009 ME 130, ¶ 15,

985 A.2d 4 (quotation marks omitted). We review challenges to the validity of

statutes de novo. Id. We presume that the statute is constitutional, id., and must

“avoid an unconstitutional construction of a statute if a reasonable interpretation of

the statute would satisfy constitutional requirements,” Bagley v. Raymond Sch.

Dep’t, 1999 ME 60, ¶ 14, 728 A.2d 127 (quotation marks omitted).

                                    III. DISCUSSION

      [¶12] We consider the Does’ challenges in the order the Does argue them.

A.    Justiciability

      [¶13] The Superior Court determined that the claims of the Does who had

been removed from the registry are moot because the court could not provide them

any real or effective relief. These Does argue that their claims are not moot

because (1) they will be subject to the registry if they commit future crimes or
                                                                                   9

move to a different state, (2) their claims fit within the exceptions to the mootness

doctrine, and (3) the court can retain jurisdiction in order to award costs and

attorney fees.

        1.      Technical Mootness

        [¶14]    We review de novo the trial court’s determination of mootness.

McGettigan v. Town of Freeport, 2012 ME 28, ¶ 10, 39 A.3d 48. “An issue is

moot when there is no real and substantial controversy, admitting of specific relief

through a judgment of conclusive character.” Id. (quotation marks omitted). In

analyzing whether a case is moot, “we examine whether there remain sufficient

practical effects flowing from the resolution of the litigation to justify the

application of limited judicial resources.” Id. (quotation marks omitted).

        [¶15] The Does’ first argument, that their future conduct may subject them

to registration in the future, is insufficient to constitute a “real and substantial

controversy.” See id. For a controversy to be justiciable it must declare rights

“upon the existing state of facts and not upon a state of facts that may or may not

arise in the future.”      See Madore v. Me. Land Use Regulation Comm’n,

1998 ME 178, ¶ 7, 715 A.2d 157 (quotation marks omitted). Here, the Does have

alleged only facts that may or may not occur in the future, and thus their claims are

moot.
10

      [¶16] Additionally, the Does have been relieved of the duty to register, the

crux of the litigation. See, e.g., Bennett v. State, 289 A.2d 28, 28, 32 (Me. 1972)

(holding that the expiration of defendant’s sentence rendered his habeas corpus

petition moot); State v. Irish, 551 A.2d 860, 861-62 (Me. 1988) (holding that the

defendant’s constitutional challenge to the revocation of his intensive supervision

was moot because he had been released from institutional confinement).

      [¶17] Further, because we conclude that the Does are not entitled to an

award of their fees and costs, there is no need for the trial court to retain

jurisdiction over their claim.

      [¶18] For these reasons, the claims of Does I, IV, V, VI, VII, VIII, XIII,

XVI, XVIII, and XXIV, who have been removed from the registry, no longer have

controversial vitality and are therefore moot unless an exception applies.

      2.     Exceptions to Mootness

      [¶19] The Does’ claims also do not fit within the exceptions to the mootness

doctrine. We will consider an appeal that is otherwise moot if the appellant can

show that

      (1) sufficient collateral consequences will result from the
      determination of the questions presented so as to justify relief; (2) the
      appeal contains questions of great public concern that, in the interest
      of providing future guidance to the bar and the public, we may
      address; or (3) the issues are capable of repetition but evade review
      because of their fleeting or determinate nature.
                                                                                  11

Anthem Health Plans of Me., Inc. v. Superintendent of Ins., 2011 ME 48, ¶ 8,

18 A.3d 824 (quotation marks omitted).

      [¶20] Here, the collateral consequences exception is unavailable. The Does

argue that their registration status may be affected if they commit another crime or

move to another state. The collateral consequences exception will not apply if the

appellant fails to “demonstrate that a decision on the merits of the appeal will have

more than conjectural and insubstantial consequences in the future.” Sordyl v.

Sordyl, 1997 ME 87, ¶ 6, 692 A.2d 1386 (quotation marks omitted).             These

consequences to the Does’ registration status that may or may not transpire in the

future and which are entirely dependent on the Does’ own actions do not fall under

the collateral consequences exception. Additionally, the Does’ argument that their

claims may have a potential impact on federal funding of Maine law enforcement

is too tenuous and uncertain to be a collateral consequence.

      [¶21] The two remaining exceptions to mootness, for issues of great public

concern and issues capable of repetition, are also unavailable to the Does who have

been removed from the registry. Although it is true that the application of SORNA

of 1999 is an issue of great public concern that is capable of repetition, the issue

will not evade review because the cases of Does III, X, XIX, XXIII, and XLIII,

who remain on the registry, are decided today. Therefore, the claims of the Does

who had been removed from the registry are moot.
12

B.    Ex Post Facto Analysis

      [¶22] The remaining Does argue that SORNA of 1999 as amended after

Letalien is an unconstitutional ex post facto law. The trial court concluded that the

Does failed to establish by the clearest proof that SORNA of 1999 is punitive.

      [¶23]    Both the United States and Maine Constitutions prohibit the

enactment of ex post facto laws. U.S. Const. art. I, § 10, cl. 1 (“No State shall . . .

pass any . . . ex post facto Law . . . .”); Me. Const. art. I, § 11 (“The Legislature

shall pass no . . . ex post facto law . . . .”).       We have explained that the

Ex Post Facto Clauses of the two constitutions “are interpreted similarly and are

coextensive.” Letalien, 2009 ME 130, ¶ 25, 985 A.2d 4. A statute violates the

Ex Post Facto Clauses if it “makes more burdensome the punishment for a crime

after it has been committed.” Id.

      [¶24] In making that determination, we employ the two-step “intent-effects

test,” in which we first analyze the Legislature’s intent in enacting the statute. See

Smith v. Doe, 538 U.S. 84, 92 (2003); Letalien, 2009 ME 130, ¶ 29, 985 A.2d 4. If

we determine that the intent of the statute is civil in nature, we then analyze the

statute’s effects to determine whether the effects are so punitive that they

overcome the Legislature’s civil intent. Smith v. Doe, 538 U.S. 84, 92 (2003);

Letalien, 2009 ME 130, ¶ 29, 985 A.2d 4. We have already concluded that

“SORNA was intended to be a civil, regulatory statute” under the intent aspect of
                                                                                    13

the analysis. Letalien, 2009 ME 130, ¶ 29, 985 A.2d 4. Therefore, our focus is on

the second step of the inquiry—assessing the statute’s effects to determine if they

are punitive. See id. ¶ 30.

      [¶25] In analyzing the effects of SORNA of 1999, we consider the seven

factors we discussed in Letalien, commonly referred to as the Mendoza-Martinez

factors. Reformulated as questions, the seven factors are (1) does the sanction

involve an affirmative disability or restraint?, (2) has the sanction been historically

regarded as punishment?, (3) is the sanction imposed only upon a finding of

scienter?, (4) does the operation of the sanction promote retribution and

deterrence?, (5) is the behavior to which it applies already a crime?, (6) is there an

alternative purpose to which the sanction may rationally be connected?, and (7) is

the sanction excessive in relation to the alternative purpose?.         See Letalien,

2009 ME 130, ¶ 31, 985 A.2d 4 (quoting Kennedy v. Mendoza-Martinez,

372 U.S. 144, 168-69 (1963)).

      [¶26] In order for us to conclude that SORNA of 1999 is an unconstitutional

ex post facto law, the Does must, through the Mendoza-Martinez factors,

“demonstrate by the clearest proof that the statute is so punitive in purpose or

effect as to overcome the Legislature’s civil intent.”         See State v. Cosgro,

2008 ME 64, ¶ 2, 945 A.2d 1221 (quotation marks omitted).
14

      [¶27]    Letalien is the point of departure for our analysis of the

constitutionality of SORNA of 1999 under the Ex Post Facto Clauses of the United

States and Maine Constitutions. In Letalien, we concluded that the statute

      impose[d] an ex post facto punishment as to offenders sentenced in
      the years before the effective date of SORNA of 1999 for whom
      registration was a required part of their sentence and who were
      subsequently made subject to the more burdensome requirements of
      SORNA of 1999 after its effective date of September 18, 1999.

2009 ME 130, ¶ 1, 985 A.2d 4 (emphasis added).

      [¶28]   There are numerous factual distinctions between the plaintiff in

Letalien and Does III, X, XIX, XXIII, and XLIII who are before us today. Unlike

Letalien, who was required to register as a sex offender as part of his criminal

sentence, id. ¶ 5, there was no sex offender registration law at the time the Does

were originally sentenced, see Doe, 2007 ME 139, ¶¶ 10, 14, 932 A.2d 552. The

registration requirement of Letalien’s sentence included a waiver provision that

was eliminated in 2001. Letalien, 2009 ME 130, ¶ 8, 985 A.2d 4. In contrast, the

registration requirement originally imposed on the Does by SORNA of 1999 has

been alleviated by the enactment of 34-A M.R.S. § 11202-A, which allows sex

offenders to remove their names from the registry if they fall within the exceptions

created by the statute. Reporting requirements also differ. Letalien was required

to report in person to law enforcement officials every ninety days.          Letalien,

2009 ME 130, ¶ 8, 985 A.2d 4. Pursuant to the current law, ten-year registrants are
                                                                                                      15

only required to report annually in writing and in person every five years; lifetime

registrants are required to report quarterly in writing and in person every five

years.9 34-A M.R.S. § 11222(4-A), (4-B).

        [¶29]     Against      that    backdrop,      we     evaluate      each     of    the    seven

Mendoza-Martinez factors in turn.

        1.      Affirmative Disability or Restraint

        [¶30] The first factor requires us to determine whether SORNA of 1999

imposes an affirmative disability or restraint. We consider “‘how the effects of the

[a]ct are felt by those subject to it. If the disability or restraint is minor and

indirect, its effects are unlikely to be punitive.’” Letalien, 2009 ME 130, ¶ 35,

985 A.2d 4 (alteration in original) (quoting Smith, 538 U.S. at 99-100).

        [¶31] In Letalien we held that this factor weighed in favor of finding the

statute punitive because of the great burden associated with a registrant appearing

in person every ninety days and being subjected to fingerprinting, photographing,

and verification of residence and employment information.                         Id. ¶ 37.       Since

Letalien, the burden imposed by the registration requirements of SORNA of 1999

has been significantly reduced. Now ten-year and lifetime registrants are required


   9
    In addition, registrants are required to report to law enforcement officials when they move or change
employment, and must update their registrations if they significantly change their appearance.
34-A M.R.S. § 11222(4-A), (4-B).
16

to appear in person every five years, which is no more onerous than renewing

one’s driver’s license.       See 29-A M.R.S. § 1406(1) (2012) (requiring

noncommercial license renewal every six years and commercial license renewal

every five years).    Similarly, the burden of reporting in writing annually for

ten-year registrants or quarterly for lifetime registrants is minimal when compared

to an in-person reporting requirement.

      [¶32] The Does argue that it is punitive to require that registrants submit a

new photograph when a registrant’s appearance has changed significantly. The

Supreme Court analyzed a similar requirement in Smith, holding that the Alaska

statute imposed no affirmative disability or restraint because “[a]lthough

registrants must inform the authorities after they change their facial features (such

as growing a beard) . . . they are not required to seek permission to do so.”

538 U.S. at 101; see State v. Haskell, 2001 ME 154, ¶ 15, 784 A.2d 4 (finding no

affirmative disability or restraint because the “movements and activities [of the

registrants were] not restricted in any way”).

      [¶33] We conclude that SORNA of 1999 imposes no significant restraint or

disability, and that therefore this factor weighs against finding the statute punitive.

      2.     Historically Regarded as Punishment

      [¶34] The second factor we examine is whether the sex offender registry has

historically been regarded as punishment.        The Does argue that the registry’s
                                                                                    17

availability on the Internet is punitive because of its stigmatizing effects. The

Supreme Court found that “[t]he purpose and the principal effect of notification are

to inform the public for its own safety, not to humiliate the offender. Widespread

public access is necessary for the efficacy of the scheme, and the attendant

humiliation   is   but   a   collateral   consequence    of   a   valid   regulation.”

Smith, 538 U.S. at 99. In Letalien, we concluded that posting the registry on the

Internet was not punitive “for the reasons articulated by the Supreme Court in

Smith.” 2009 ME 130, ¶ 38, 985 A.2d 4.

      [¶35] However, our analysis of this factor does not end there. “The unique

history of the development of sex offender registration laws in Maine is integral”

to our analysis of whether the retroactive application of SORNA of 1999 should be

regarded as punishment. See Letalien, 2009 ME 130, ¶ 39, 985 A.2d 4. The Sex

Offender Registration Act of 1991, the original sex offender registration law

enacted in Maine, and the Sex Offender Registration and Notification Act of 1995,

which affected Letalien, made registration an “integral part of the sentencing

process and, thus, the resulting sentence.” Id. ¶¶ 39, 42. SORNA of 1999, on the

other hand, is not tied to the sentencing process; this is the crucial distinction upon

which Letalien was based. See id. ¶¶ 1, 39, 60-61. We conclude that this factor

weighs against finding the statute punitive.
18

      3.     Scienter

      [¶36] The third factor is whether the statute comes into play only on a

finding of scienter. Because SORNA of 1999 is not triggered on a finding of

scienter, this factor weighs against finding SORNA punitive. See id. ¶ 44; Haskell,

2001 ME 154, ¶ 17, 784 A.2d 4.

      4.     Promote Traditional Aims of Punishment

      [¶37] The fourth factor requires us to determine whether SORNA of 1999

promotes the traditional aims of punishment, specifically, retribution and

deterrence. The Does argue that SORNA of 1999 is retributive because it imposes

registration obligations on them for past wrongdoing even though some of them

have gone decades without reoffending; additionally, they argue that it is a

deterrent because they are subject to increased supervision by the State and

increased scrutiny by the public.

      [¶38] In considering this factor in Smith, the Supreme Court concluded that

although the Alaska sex offender registration scheme may deter future crimes, such

a finding did not warrant a finding that the registration statute was punitive because

“[a]ny number of governmental programs might deter crime without imposing

punishment.” 538 U.S. at 102. Further, even though the Alaska registration

scheme differentiated among individuals based on the extent of their wrongdoing,
                                                                                   19

the corresponding length of the reporting requirements was “reasonably related to

the danger of recidivism, and this is consistent with the regulatory objective.” Id.

      [¶39] In Letalien, we concluded that given the differences between Smith

and Letalien in the length of registration for certain offenses, the sparse record

provided “little basis to assess the reasonableness of this widely disparate treatment

and whether Maine’s requirement of lifetime registration is reasonably related to

the danger of recidivism.” 2009 ME 130, ¶ 46, 985 A.2d 4.

      [¶40] We are unable to determine on this record whether SORNA of 1999 is

more deterrent in effect than other civil regulatory schemes. Likewise, on the

record presented we cannot assess whether the registration requirements are

reasonably related to the danger of recidivism. See id. Thus, we treat this factor as

neutral. See id.

      5.     Whether Behavior is Already a Crime

      [¶41] The fifth factor we examine is whether the behavior to which SORNA

of 1999 applies is already a crime. We determined in Letalien that the fifth factor

weighed in favor of finding the statute punitive because it “applie[d] exclusively to

behavior that is already a crime.” Id. ¶ 48. For that same reason, we agree that this

factor supports a finding that the statute is punitive.
20

      6.     Rational Connection to Alternative Purpose

      [¶42] The sixth factor is whether there is an alternative purpose rationally

connected to the statute. We determined in Letalien that SORNA of 1999 “serves

a valid governmental purpose separate from punishment” because it is “among the

most basic obligations state government owes its people—ensuring their safety.”

Id. ¶ 50. We discern no reason to depart from the determination we reached in

Letalien and thus conclude that this factor weighs against finding that SORNA is

punitive.

      7.     Excessive in Relation to Alternative Purpose

      [¶43] The seventh and final factor requires us to determine whether the

statute appears excessive in relation to its public safety purpose. The Does contend

that requiring an individual previously convicted for a sex offense to register if he

is later convicted of a non-sex-related offense punishable by more than one year is

excessive. We analyze excessiveness as it relates to the increased burdens on

individuals who were originally sentenced before any statute requiring registration

of sex offenders had been enacted and are now retroactively subject to ten-year or

lifetime registration on the State’s sex offender registry.     “The excessiveness

inquiry . . . 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
                                                                                  21

whether the regulatory means chosen are reasonable in light of the nonpunitive

objective.” Smith, 538 U.S. at 105.

      [¶44] Although the statutory reporting requirements of SORNA of 1999 are

less stringent and oppressive than those we considered in Letalien, we nevertheless

conclude again that we have insufficient information upon which to determine

whether they are reasonable in light of the law’s nonpunitive purpose of public

safety. Letalien, 2009 ME 130, ¶ 52, 985 A.2d 4. The record does not allow us to

determine whether a less demanding regimen would serve the objective of public

safety equally well. We accordingly treat this factor as neutral. See id. ¶ 55.

      8.     Assessment of Mendoza-Martinez Factors

      [¶45] The Does argue that a conviction-based scheme is inherently punitive

and that the Legislature should implement a risk-assessment scheme. However,

“[i]t is not our role to ask whether the Legislature could achieve its goals through

alternative means.” Id. ¶ 56. Our task is to determine whether the punitive effects

of SORNA of 1999 overcome the Legislature’s civil intent by the clearest proof.

See Cosgro, 2008 ME 64, ¶ 2, 945 A.2d 1221.

      [¶46] Our ex post facto analysis in Letalien was informed and driven in

significant part by the fact that registration was part of Letalien’s criminal

sentence. See Letalien, 2009 ME 130, ¶¶ 60-61, 985 A.2d 4. Indeed, “the purpose

of the ex post facto prohibition is rightfully considered to be at its apex when a
22

law’s retroactive application is more punitive than the punishment that was

actually imposed against an offender as part of a sentence.”          Id. ¶ 61.    By

definition, it was punitive to increase Letalien’s sentence retroactively. Further, it

was the cumulative effect of a combination of factors that produced a finding that

the statute was unconstitutional in Letalien. That is simply not the case here,

where registration was not part of the Does’ sentences and where some of the most

significant concerns we had in Letalien have been remedied by the Legislature.

      [¶47]    In our present discussion of the Mendoza-Martinez factors, we

conclude that only factor five—whether the statute applies to behavior that is

already a crime—weighs in favor of finding SORNA of 1999 punitive.

      [¶48]   The first Mendoza-Martinez factor, which is whether the statute

imposes an affirmative disability or restraint, looms large in our conclusion that the

statute is nonpunitive overall. Title 34-A M.R.S. § 11222 significantly reduced the

burden on individuals subject to the registry.        We disagree with the Does’

argument that requiring lifetime registration is a significant restraint in and of

itself. Regardless of the length of time an individual is subject to the registry,

reporting to have his registration information verified in person every five years is

a minimal burden, as is reporting in writing no more frequently than quarterly.

      [¶49]    Additionally, factor six, regarding the important and rational

connection to a nonpunitive purpose—providing truthful information in
                                                                                23

furtherance of public safety—underscores our conclusion that the statute is

nonpunitive. See Haskell, 2001 ME 154, ¶ 9, 784 A.2d 4 (“[T]he Supreme Court

has intimated, in other cases, that the most significant question under the effects

stage of the analysis is whether the law, ‘while perhaps having certain punitive

aspects, serve[s] important nonpunitive goals.’” (alteration in original) (quoting

United States v. Ursery, 518 U.S. 267, 290 (1996))).

      [¶50]    Factor four, whether the statute promotes traditional aims of

punishment, and factor seven, whether the statute is excessive in relation to the

alternate purpose, are found to be neutral; accordingly, they do not weigh heavily

in our analysis.

      [¶51] After considering all of the Mendoza-Martinez factors, we conclude

that SORNA of 1999 is nonpunitive. As such, it does not violate the Ex Post Facto

Clauses of the United States and Maine Constitutions.

C.    Equal Protection

      [¶52] The Does argue that SORNA of 1999 violates the Equal Protection

Clauses of the United States and Maine Constitutions because its registration

requirements infringe on the Does’ fundamental rights under article I, section 1 of

the Maine Constitution and are not narrowly tailored to achieve a compelling

governmental interest. In the alternative, the Does argue that SORNA of 1999

unlawfully and arbitrarily treats them differently from similarly situated sex
24

offenders in requiring some offenders to register for ten years and others for life.

The Superior Court found that SORNA of 1999 does not implicate a suspect class

or a fundamental right, and concluded that the Does failed to establish that the

statute treats them differently from similarly situated persons in a way that is not

rationally related to a legitimate state interest.

       [¶53] The Fourteenth Amendment’s Equal Protection Clause prohibits “any

state from denying to any person within its jurisdiction the equal protection of the

laws, and requires, generally, that persons similarly situated be treated alike.

Article [I], section 6-A of the Maine Constitution includes similar requirements.”

Anderson v. Town of Durham, 2006 ME 39, ¶ 28, 895 A.2d 944 (citations and

quotation marks omitted); see U.S. Const. amend. XIV, § 1 (“[N]or shall any

State . . . deny to any person within its jurisdiction the equal protection of the

laws.”); Me. Const. art. I, § 6-A (“No person shall be . . . denied the equal

protection of the laws . . . .”).

       [¶54]    In an equal protection challenge, a state law is subject to strict

scrutiny analysis if it “infringes on a fundamental constitutional right, or

involves . . . a suspect classification.” Anderson, 2006 ME 39, ¶ 29, 895 A.2d 944.

If strict scrutiny applies, the law must be narrowly tailored to achieve a compelling

governmental interest. Id. “If the government action does not implicate either a

fundamental right or a suspect class, different treatment accorded to similarly
                                                                                                      25

situated persons need only be rationally related to a legitimate state interest.” Id.

(quotation marks omitted). Laws subject to rational basis review “bear[] a strong

presumption of validity.”           Id.   “[T]he burden is on the party challenging the

government action to demonstrate that there exists no fairly conceivable set of

facts that could ground a rational relationship between the challenged classification

and the government’s legitimate goals.” Id. (quotation marks omitted).

        [¶55] As persons convicted of sex offenses, the Does are not members of a

suspect or protected class for purposes of an equal protection challenge.

See, e.g., United States v. Juvenile Male, 670 F.3d 999, 1009 (9th Cir. 2012); Doe

v. Moore, 410 F.3d 1337, 1346 (11th Cir. 2005). Additionally, the Does have not

established that SORNA of 1999 infringes on a fundamental constitutional right;

they merely refer generally to article I, section 1 of the Maine Constitution10 and

argue in greater detail with regard to substantive due process that a fundamental

right is implicated. As we will discuss in our substantive due process analysis, we

do not find that SORNA of 1999 implicates a fundamental constitutional right.

Accordingly, the Does’ equal protection challenge is subject to the highly

deferential rational basis review. See Anderson, 2006 ME 39, ¶ 29, 895 A.2d 944;

   10
       Article I, section 1 of the Maine Constitution provides, “All people are born equally free and
independent, and have certain natural, inherent and unalienable rights, among which are those of enjoying
and defending life and liberty, acquiring, possessing and protecting property, and of pursuing and
obtaining safety and happiness.”
26

Haskell, 2001 ME 154, ¶ 16 n.10, 784 A.2d 4 (SORNA’s classifications “need

only be rationally related to a legitimate government goal.”).

      [¶56] In order “[t]o succeed in an equal protection challenge where, as here,

the challenging party is not a member of a suspect class” and has not had a

fundamental right infringed, the Does “must show (1) that similarly situated

persons are not treated equally under the law, and (2) that the statute is not

rationally related to a legitimate state interest.”              See MacImage of

Me., LLC v. Androscoggin Cnty., 2012 ME 44, ¶ 33, 40 A.3d 975 (quotation marks

omitted).

      [¶57] The Legislature has required individuals who are convicted of certain

sex offenses to register for ten years while requiring others who are convicted of a

“sexually violent offense” or multiple sex offenses to register for life.       See

34-A M.R.S. § 11203(5), (8). Although all registrants are labeled “sex offenders,”

the Does have not established that ten-year registrants are similarly situated to

lifetime registrants because different conduct triggers the different durational

requirements. See Green v. Comm’r of Mental Health & Mental Retardation,

2000 ME 92, ¶ 22, 750 A.2d 1265 (“There is a good argument that insanity

acquittees and individuals civilly committed are not similarly situated for purposes

of equal protection analysis because of the difference in circumstances giving rise

to their commitment.”). Contrary to the Does’ argument that all sex offenders are
                                                                                                             27

similarly situated, the law does not treat offenders convicted of particular offenses

differently because SORNA of 1999 is a conviction-based system.11

          [¶58] We do not reach the second step in the analysis given our conclusion

that the Does are not similarly situated to other sex offenders who are treated

differently and the Does’ concessions (1) that protecting the public through

publicizing offender information is a compelling state interest and (2) that we have

previously held that the sex offender registration statutes were enacted to serve the

legitimate governmental purpose of public safety. See Letalien, 2009 ME 130,

¶ 50, 985 A.2d 4.

          [¶59]    For these reasons, SORNA of 1999 does not violate the Equal

Protection Clauses.

D.        Procedural Due Process

          [¶60] The Does argue that the classification scheme of SORNA of 1999

implies that they are “dangerous” and therefore they are entitled to challenge that

classification at a hearing pursuant to the Due Process Clause. The trial court

concluded that the Does were not entitled to a hearing to establish whether they are

     11
       The Does also argue that similarly situated Does can end up in different categories as a result of
prosecutorial discretion. However, “[i]t is well established that a reasonable prosecutorial discretion in
the enforcement of criminal laws is inherent in our criminal justice system,” and the Does do not claim
that “selective enforcement was deliberately made on an impermissible and unjustifiable standard such as
race, religion, a desire to discourage the exercise of one’s constitutional rights or other invidious criteria.”
See State v. Heald, 382 A.2d 290, 301 (Me. 1978).
28

potentially dangerous because that fact is immaterial with regard to their duty to

register.

          [¶61] The Maine and United States Constitutions create coextensive due

process rights. Northup v. Poling, 2000 ME 199, ¶ 9 n.5, 761 A.2d 872. “We

review a procedural due process claim in two steps. First, we determine if the

government has deprived a claimant of life, liberty, or property interests. Second,

if such deprivation occurred, we then determine what process, pursuant to the

Fourteenth Amendment, is due . . . .” DaimlerChrysler Corp. v. Me. Revenue

Servs., 2007 ME 62, ¶ 26, 922 A.2d 465 (citations omitted).

          [¶62] The Supreme Court has articulated the “stigma-plus test” to determine

whether procedural due process rights12 are implicated when the state imposes a

stigma on an individual that negatively affects his reputation. See Paul v. Davis,

424 U.S. 693, 701, 711 (1976). A state action is an infringement on due process

rights pursuant to the stigma-plus test only if it both negatively affects an

individual’s reputation and alters the legal status of an individual in a manner that

affects his or her liberty, such as revoking parole or taking away the right to

operate a vehicle. Id. at 701, 708-09. The Does’ legal status is unaffected by

     12
      The stigma-plus test “is limited to consideration of the procedural guarantees of the Due Process
Clause and is not intended to describe those substantive limitations upon state action which may be
encompassed within the concept of ‘liberty’ expressed in the Fourteenth Amendment.” Paul v. Davis,
424 U.S. 693, 710 n.5 (1976).
                                                                                 29

SORNA of 1999.

      [¶63] Other courts have held that sex offender registration requirements are

not violations of due process under the stigma-plus test because registration does

no more than make the fact of conviction public, just as SORNA of 1999 does

here. See, e.g., Does v. Munoz, 507 F.3d 961, 965-66 (6th Cir. 2007) (concluding

that registration does not implicate a fundamental right because it disseminates

accurate public information); cf. Gwinn v. Awmiller, 354 F.3d 1211, 1223-24

(10th Cir. 2004) (holding that liberty interests were implicated under the

stigma-plus test where the defendant was incorrectly placed on a sex offender

registry without any process). Because the registry contains no information that

cannot be obtained through a routine criminal background check, the registry does

not affect any of the Does’ liberty or property interests, and we therefore need not

reach the question of what process is due.

E.    Substantive Due Process

      [¶64] The Does argue that SORNA of 1999 violates their fundamental

rights to privacy, reputation, and property, and their ability to pursue happiness,

and that the law is not narrowly tailored to serve a compelling state interest. The

trial court concluded that the statute does not violate the Does’ substantive due

process rights because it does not infringe on any fundamental right and is

reasonably related to a legitimate state interest.
30

      [¶65] We have previously determined that the substantive due process rights

of the United States and Maine Constitutions are coextensive, Green, 2000 ME 92,

¶ 13 n.2, 750 A.2d 1265, and there is nothing presented in this case that causes us

to reconsider that determination. A substantive due process analysis turns on

whether the challenged state action implicates a fundamental right:

     First, we have regularly observed that the Due Process Clause specially
     protects those fundamental rights and liberties which are, objectively,
     deeply rooted in this Nation’s history and tradition, and implicit in the
     concept of ordered liberty, such that neither liberty nor justice would
     exist if they were sacrificed.        Second, we have required in
     substantive-due-process cases a careful description of the asserted
     fundamental liberty interest. Our Nation’s history, legal traditions, and
     practices thus provide the crucial guideposts for responsible
     decisionmaking that direct and restrain our exposition of the Due
     Process Clause.

Id. ¶ 13 (quoting Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)). In

addition to the rights expressly protected by the Bill of Rights, “the ‘liberty’

specially protected by the Due Process Clause includes the rights to marry, to have

children, to direct the education and upbringing of one’s children, to marital

privacy, to use contraception, to bodily integrity, and to abortion.” Glucksberg,

521 U.S. at 720 (citations omitted).      Courts must be cautious in recognizing

fundamental rights that have not been clearly established because “extending

constitutional protection to an asserted right or liberty interest . . . place[s] the

matter outside the arena of public debate and legislative action.” Id.
                                                                                      31

      [¶66] If state action infringes on a fundamental right or fundamental liberty

interest, the infringement must be narrowly tailored to serve a compelling state

interest. Id. at 721. If the challenged state action does not implicate a fundamental

right or fundamental liberty interest, it will be upheld if it is reasonably related to a

legitimate state interest. Id. at 722.

      [¶67] We conclude that no fundamental liberty interest or fundamental right

is implicated by SORNA of 1999. In particular, the right to privacy alleged by the

Does, i.e., the right to keep private the fact of conviction, is inapposite to the right

to personal autonomy often described as a right to privacy by the Supreme Court

regarding family relationships and bodily integrity.          Other courts have also

concluded that no fundamental right is implicated by disclosure of truthful public

information. See, e.g., Paul, 424 U.S. at 713 (holding that publication of a record

of an official act, such as an arrest, does not implicate any fundamental right);

Moore, 410 F.3d at 1345 (“[W]e can find no history or tradition that would elevate

the issue here to a fundamental right. . . . [A] state’s publication of truthful

information that is already available to the public does not infringe the

fundamental constitutional rights of liberty and privacy.”); Doe v. Tandeske,

361 F.3d 594, 597 (9th Cir. 2004) (“[P]ersons who have been convicted of serious

sex offenses do not have a fundamental right to be free from the registration and

notification requirements . . . .”); In re W.M., 851 A.2d 431, 451 (D.C. 2004)
32

(“Under [the Sex Offender Registration Act] and its implementing regulations . . .

only truthful and accurate information of a non-confidential, mainly public nature

is disclosed.”).

      [¶68]    We do not here establish a new fundamental interest or right.

Because no fundamental right or interest is at stake and the Does have conceded

that SORNA of 1999 is reasonably related to a legitimate state interest, see

Letalien, 2009 ME 130, ¶ 50, 985 A.2d 4, the Does’ substantive due process

challenges must fail.

F.    Use of Guilty Pleas

      [¶69] The Does argue that SORNA of 1999’s registration requirements

exact more punishment than the Does agreed to in their plea bargain agreements

and they urge us to recognize a right of fundamental fairness under Maine’s

Constitution and to find a violation of the Does’ right to contract. Because we

have concluded that SORNA of 1999 is not punitive under an ex post facto

analysis and implicates no fundamental rights, we do not find merit in this

argument.

G.    Rights Afforded by the Maine Constitution

      [¶70] The Does urge us to establish a fundamental right to privacy, a right

to protection of reputation, and a right to fundamental fairness under article I,

section 1 of the Maine Constitution. We have already held that SORNA of 1999
                                                                                    33

does not implicate fundamental rights of privacy and reputation under the Maine

Constitution in the context of the Does’ procedural and substantive due process

claims. We also decline to expand our interpretation of Maine’s Constitution to

include a generalized right to “fundamental fairness.” See Bagley, 1999 ME 60,

¶ 13, 728 A.2d 127 (“[W]e have traditionally exercised great restraint when asked

to interpret our state constitution to afford greater protections than those

recognized under the federal constitution.” (quotation marks omitted)).

H.    MCRA and § 1983

      [¶71] The Does seek prospective relief to protect them from registering in

the future, and an award of the costs associated with registering and the fees

associated with removing their names from the registry. The trial court denied the

Does’ monetary claims, finding that they had not sought any prospective relief and

that their claim for reimbursement was tantamount to an award of damages and

was thus prohibited.

      [¶72] Title 42 U.S.C.S. § 1983 states that “[e]very person who, under color

of any [state law], subjects, or causes to be subjected, any citizen of the United

States . . . to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law.” The

MCRA, 5 M.R.S. §§ 4681-4685, is patterned after § 1983 and “provides a private

cause of action for violations of constitutional rights by ‘any person.’”
34

Jenness v. Nickerson, 637 A.2d 1152, 1158 (Me. 1994). The Does have failed to

establish that SORNA of 1999 violated their constitutional rights, thus barring their

claim for prospective relief, which they first raised on appeal.

      [¶73] We also conclude that the Does cannot claim a refund for the $31 they

paid to remove their names from the registry. The State’s sovereign immunity bars

retroactive   recovery    of    payments      voluntarily     made    to    the   State.

See Wellman v. Dep’t of Human Servs., 574 A.2d 879, 884 (Me. 1990) (holding

that sovereign immunity barred retroactive recovery of any previously made

payments).    The Does voluntarily paid the fee.            See State v. Van Reenan,

355 A.2d 392, 395 (Me. 1976) (concluding that a defendant who voluntarily

submitted to a breath test in order to avoid having his license suspended pursuant

to a statute could not challenge the constitutionality of that statute because he was

not subject to the sanctions of which he complained.).

      [¶74] A state, including a state official in his or her official capacity, is not a

person within the meaning of § 1983 or the MCRA, barring the Does’ additional

monetary claims. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64, 71

(1989); Jenness, 637 A.2d at 1158. We are not persuaded by the re-stylization of

the Does’ damage claims as anything other than monetary compensation from

alleged past violations. The court did not err in dismissing the Does’ monetary

claims.
                                                                                 35

I.    Summary Judgment

      [¶75] The Does contend that the factual record on summary judgment was

inadequate for the trial court to rule on the parties’ cross-motions. In particular,

they contend that there were insufficient facts for the court to decide the Does’

equal protection and procedural and substantive due process claims.

      [¶76] We are not persuaded by the Does’ arguments that the record was

inadequate. Parties opposing summary judgment, in this case the Does, have the

burden of presenting sufficient evidence to generate a genuine issue of material

fact. See M.R. Civ. P. 56(c) (“Judgment shall be rendered . . . if . . . there is no

genuine issue as to any material fact . . . .”); Estate of Pinkham v. Cargill, Inc.,

2012 ME 85, ¶ 16, 55 A.3d 1 (evaluating whether the plaintiff “presented enough

evidence to create a genuine issue of material fact”); Cookson v. Brewer Sch.

Dep’t, 2009 ME 57, ¶ 30, 974 A.2d 276 (“Because [plaintiff] has failed to raise a

genuine issue of material fact . . . the court did not err in entering a summary

judgment for [the defendant] . . . .”). The Does failed to do so here.

      [¶77] In their ex post facto argument, but not in their summary judgment

argument, the Does refer to factual disputes they claim warranted the denial of the

State defendants’ cross-motion for summary judgment. Two facts were in the

Does’ statement of material facts and denied by the State defendants. The first

concerns the relationship between the number of convictions and the risk of
36

recidivism: “There is no empirical evidence and no accepted professional opinion

that a person who committed two Class A sex offenses before 1985 would be more

dangerous in 2010 as a sex offender than one who committed one such offense

before 1985.” The second fact concerns whether there is a relation between sex

offenders who commit non-sex offenses and public safety risks:

          There is no empirical evidence and no accepted professional opinion
          that a sex offender who committed one sex offense before 1995
          followed by a Class C or higher offense unrelated to sexual activity is
          therefore more dangerous as a sex offender in 2010 than a pre 1995
          sex offender who has not committed a separate [C]lass C or higher
          offense after his sex offense but unrelated to any sexual activity.

In their reply brief, the Does identify two additional facts included in the State

defendants’ statement of material facts that the Does denied, and which relate to

the rate of recidivism over time.13

          [¶78] In the final analysis, the disagreement between the Does and the State

on the disputed facts does not concern material issues that the trial court would

necessarily address in further proceedings.                      Instead, they constitute policy

considerations that are appropriately addressed to the legislative process. The fact

that the parties do not agree upon them or their import is not an impediment to



     13
       The two facts, with their citations omitted, are (1) “Over time, the cumulative rate of recidivism
increases”; (2) “The recidivism rates for STATIC-99 show that cumulative re-offense rates are higher at
15 years than 5 years.” The Does identify four other facts in their reply brief, but the Does admitted those
facts.
                                                                                    37

summary judgment.       We therefore conclude that the Does’ arguments that

summary judgment was improperly granted are unpersuasive.

J.    Attorney Fees

      [¶79] Does I, III, IV, V, VI, VII, VIII, X, XIII, XVI, XVIII, XXIV, and

XLIII argue that they should receive an attorney fees award as prevailing parties

pursuant to § 1983 and the MCRA. The trial court concluded that the Does were

not entitled to recover attorney fees because they did not prevail on their motion

for summary judgment. The court also found that the “catalyst theory” was an

unavailable avenue for recovering attorney fees pursuant to Maine law, and even if

it were available, the Does were not entitled to recover pursuant to that theory.

      [¶80] The trial court may award attorney fees to a prevailing party “in any

action or proceeding to enforce a provision of § 1983.” Bangs v. Town of Wells,

2003 ME 129, ¶ 8, 834 A.2d 955; see also 42 U.S.C.S. § 1988(b) (Lexis 2012).

The MCRA similarly provides that the court may award attorney fees to a

prevailing party. 5 M.R.S. § 4683. We review the trial court’s “determination

regarding prevailing party status for clear error,” and review its denial of attorney

fees for an abuse of discretion. Bangs, 2003 ME 129, ¶ 7, 834 A.2d 955.

      [¶81] The trial court’s finding that the Does were not prevailing parties is

not clearly erroneous. The court ruled in favor of the State defendants on all of the

Does’ claims. See Portland Co., 2009 ME 98, ¶ 32, 979 A.2d 1279. Moreover,
38

the grant of temporary restraining orders does not satisfy the prevailing-party

requirement.       In the Does’ case, “the preliminary injunction[s] . . . merely

maintained the status quo, [they] did not effect a material alteration in the parties’

legal relationship and the plaintiffs therefore [are] not prevailing parties under

§ 1988.”   See Advantage Media, LLC v. City of Hopkins, 511 F.3d 833, 837

(8th Cir. 2008).

      [¶82] The Does argue that they are “prevailing parties” pursuant to the

catalyst theory. The catalyst theory “posits that a plaintiff is a ‘prevailing party’ if

[the lawsuit] achieves the desired result because [it] brought about a voluntary

change in the defendant’s conduct.” Buckhannon Bd. & Care Home, Inc. v. W. Va.

Dep’t of Health & Human Res., 532 U.S. 598, 601 (2001). The State defendants

contend that the Supreme Court’s rejection of the catalyst theory in Buckhannon

Bd. & Care Home, Inc. foreclosed an award of attorney fees to the Does. See

532 U.S. at 600.

      [¶83] The Does advance the catalyst theory in arguing that Doe v. District

Attorney led to the enactment of P.L. 2009 ch. 365, § B-3 (effective date

Sept. 12, 2009) (codified at 34-A M.R.S. § 11202-A(1) (2009)), providing for

certain exceptions to the registration requirements, and the litigation in Letalien,

leading to the legislative enactment of P.L. 2009 ch. 570 (effective date

Mar. 30, 2010) (codified at 34-A M.R.S. §§ 11202-A, 11222, 11225-A), alleviating
                                                                                                     39

the reporting requirements.             The connection between their lawsuit and the

legislative changes is too tenuous. In fact, at the time John Doe I’s case reached us

in Doe, the plaintiff had expressly not pursued an ex post facto claim.14 Instead,

our decision in Letalien, analyzing an ex post facto claim, triggered the recent

legislative changes to 34-A M.R.S. § 11222. Because the legislative changes to

SORNA of 1999 are not the result of this litigation, we do not address the catalyst

theory further.

                                           IV. CONCLUSION

        [¶84] For the foregoing reasons, we affirm the trial court’s decision that

SORNA of 1999 is not an unconstitutional ex post facto law. The Does’ other

constitutional and statutory challenges are unpersuasive.

        The entry is:

                        Judgment affirmed.



SILVER, J., with whom ALEXANDER and JABAR, JJ., join, dissenting.

        [¶85] We respectfully dissent because the requirements of SORNA of 1999

are punishment to those who have completed their sentences and paid back society


   14
      “At oral argument, Doe’s counsel stated that he was not requesting that we reconsider whether
SORNA is ex post facto as he recognized that State v. Haskell, and Smith v. Doe, had decided the issue.”
Doe, 2007 ME 139, ¶ 21 n.4, 932 A.2d 552 (citations omitted).
40

long ago. As we have already learned, tragically, here in Maine, the publication of

names and pictures on the Internet is dangerous and dramatically affects the

registrants’ lives. See Associated Press, 2 Sex Offenders Shot to Death in Their

Homes, N.Y. Times, Apr. 17, 2006, at A14; Raja Mishra, Suspect May Have

Wanted to Kill Others, Boston Globe, Apr. 25, 2006, at B2. Those who do not

comply with the requirements of SORNA of 1999 face criminal sanctions similar

to those imposed on defendants who violate conditions of release or probation.

The requirements of SORNA of 1999, as they affect these Does, are ex post facto

laws that violate the United States and Maine Constitutions. Nowhere else in the

realm of laws is such an ex post facto violation permitted.

      [¶86] We do not dispute that the requirements of SORNA of 1999 may be

enforced on persons whose sentences have been imposed since the requirements of

SORNA of 1999 took effect. The propriety of applying SORNA of 1999 to current

offenders is not at issue in this appeal. What is at issue is whether, after a person’s

sentence has been imposed, and after that sentence has been served, the State may

add to the sentence new and onerous burdens and restrictions that were not

authorized when the offender was sentenced. The constitutional requirements that

govern this issue are not unique to SORNA of 1999. If the State can impose

additional burdens and restrictions here, it can do it for completed sentences for
                                                                                  41

any other crime that society decides, in hindsight, was not subject to tough enough

sanctions the first time around.

                      I. UNITED STATES CONSTITUTION

      [¶87] There are several reasons why SORNA of 1999 is punishment and

violates the United States Constitution. A look at some of the Mendoza-Martinez

factors shows that many of them weigh in favor of finding the statute punitive.

A.    Affirmative Disability or Restraint

      [¶88] We determined in State v. Letalien that “SORNA of 1999 [prior to the

ch. 570 amendment] impose[d] a disability or restraint that is neither minor nor

indirect” because “quarterly, in-person verification of identity and location of

home, school, and employment at a local police station, including fingerprinting

and the submission of a photograph, for the remainder of one’s life, is undoubtedly

a form of significant supervision by the state.” 2009 ME 130, ¶ 37, 985 A.2d 4.

Now, a lifetime registrant who was sentenced prior to September 18, 1999, is only

required to report in writing every ninety days and report in person every five

years, unless there has been a change in address or appearance. 34-A M.R.S.

§ 11222(4-B) (2012). Admittedly, this is a lower physical burden on the offender

than predecessor acts’ requirements that the offender report every ninety days in

person. The level of state supervision, however, has not changed in a material way
42

because the State still maintains and distributes the same amount of highly

personal information about the offender.

          [¶89] The effect of the registration and reporting requirements of SORNA

of 1999 is substantially more burdensome than renewing a driver’s license. Most

notably, if the offender fails to comply with the reporting provisions in SORNA of

1999, he exposes himself to criminal liability, which reflects the punitive effect of

the statute. See 34-A M.R.S. § 11227(1) (2012) (providing that the first offense is

a Class D crime). In comparison, if an individual chooses not to renew his driver’s

license he is simply not permitted to drive. Although the changes to SORNA of

1999 have reduced the physical burdens on the offender, the State’s supervision

and control over the offender have not been reduced. This supervision and control,

as we recognized in Letalien, signifies the punitive effect of SORNA of 1999.

B.        Historically Regarded as Punishment

          [¶90] Labeling a law’s burden as civil instead of criminal does not reduce

the level of punishment attached to the burden, nor should it reduce the

constitutional protection connected to the burden.15 Likewise, a burden that was

imposed as part of a sentence does not become less punitive if it is later imposed as

part of a regulatory requirement that parallels sentencing.

     15
     The issue of whether a burden is civil or criminal was discussed in further detail in State v. Letalien,
2009 ME 130, ¶¶ 73-74, 985 A.2d 4 (Silver, J., concurring).
                                                                                 43

      [¶91] In Letalien, we provided a detailed description of the evolution of the

sex offender registry in Maine. 2009 ME 130, ¶¶ 4-12, 985 A.2d 4. One aspect of

the registry that has evolved is its relation to sentencing procedures. Beginning in

1996, the registration requirements of SORNA of 1995 were imposed as part of a

sentence. P.L. 1995, ch. 680, § 4. Subsequently, the statute was amended to

instruct the court to order convicted offenders to register at the time it imposed a

sentence, but it was no longer “part of a sentence.” P.L. 2003, ch. 711, § B-13.

Although the statutory language removed the registry from the direct realm of

sentencing, this change “did not, in itself, make the registration requirements less

punitive   or   otherwise   remove   the   constitutional   infirmity.”    Letalien,

2009 ME 130, ¶ 74, 985 A.2d 4 (Silver, J., concurring).

      [¶92]     The stigma associated with publication on the Internet is

demonstrative of SORNA of 1999’s role as punishment and its punitive effects.

See Smith v. Doe, 538 U.S. 84, 115-16 (2003) (Ginsburg, J., dissenting) (noting

that the public notification regimen of the registry “calls to mind shaming

punishments once used to mark an offender as someone to be shunned”); Doe v.

State, 189 P.3d 999, 1012 & n.98 (Alaska 2008) (noting that the act of registering

is not analogous to shaming, but the dissemination provision is analogous). The

public does not have access to the pictures, home addresses, and work places of

those convicted of robbery, arson, embezzlement, or any other crime.            We
44

acknowledge that there is a stigma connected to any criminal behavior and there

often is retribution by the public against those who have committed crimes.

However, in no other area of the criminal law do we allow the public to have

access to such personal information. Because these Does have not committed

additional sex crimes since they completed their sentences, they were not required

to be on a registry when the registry system was first created. Placing them on the

registry now forces them to face additional public ridicule. See Human Rights

Watch, No Easy Answers: Sex Offender Laws in the US 78-79 (2007), available at

http://www.hrw.org/reports/2007/us0907/us0907web.pdf (discussing the serious

impact the dissemination of registration information has on the registrants).

          [¶93] In State v. Freeman we found that the civil proceeding by which some

OUI laws were enforced had punitive consequences of the type that characterize

criminal prosecution. 487 A.2d 1175, 1176-77 (Me. 1985) (finding the statute void

because its purpose was frustrated). In our analysis of the civil OUI proceeding,

we considered, in part, the effect that the pre-charging mechanism for OUI

defendants had on one’s reputation. Id. at 1178.16 In this consideration, we noted

that the stigma from the pre-charging mechanism associated with the civil

     16
       In State v. Freeman, in addition to stigma, we also considered that the defendant is still subject to
arrest and detention and the “civil” charge enhances the charge and sentence of subsequent OUI
violations. 487 A.2d 1175, 1178-79 (Me. 1985).
                                                                                                      45

proceeding for the OUI offense paralleled the stigma associated with the criminal

proceeding. Id. As a result, we found that the stigma was “highly suggestive of

the true criminal nature of the procedure.”                     Id.; see also State v. Anton,

463 A.2d 703, 708 (Me. 1983) (noting the lack of criminal stigma regarding the

decriminalization of traffic offenses).

        [¶94] Sex offenders who are required to register are subjected to stigma in

part due to the underlying offense, but also in part due to the dissemination of

information. The registry makes significant personal information readily available

to the public.17 The impact of this dissemination is heightened by the use of the

Internet, thus correlating the dissemination “to the shaming and branding

punishments used in colonial times.” Doe v. Dist. Attorney, 2007 ME 139, ¶ 55,

932 A.2d 552 (Alexander and Silver, JJ., concurring). As discussed below in

relation to the traditional aims of punishment, the stigma associated with Internet

publication has the potential to cause “retributive and vigilante violence against

registrants.” Id. The historic connection to criminal sentencing and shaming,




   17
       SORNA of 1999 provides the public access to each offender’s name, date of birth, photograph, city
or town of domicile and residence, address of employment, address of college or school, the statutory
citation and name of the offense for which the registrant was convicted, and designation as a 10-year or
lifetime registrant. 34-A M.R.S. § 11221(9)(A) (2012). Additional information, including the mailing
address and physical location of a registrant’s domicile and residence, is easily available to the public
through a written request. 34-A M.R.S. § 11221(9)(B) (2012).
46

along with the retribution and deterrence discussed below, demonstrate SORNA of

1999’s punitive effect.

C.    Traditional Aims of Punishment

      [¶95] SORNA of 1999 promotes retribution and deterrence, especially as it

relates to Does III, X, XIX, XXIII, and XLIII. Such characteristics are present

regardless of the intent of the Legislature. As the Indiana Supreme Court said in

its discussion of that state’s sex offender registration act:

      It is true that to some extent the deterrent effect of the registration and
      notification provisions of the Act is merely incidental to its regulatory
      function. And we have no reason to believe the Legislature passed the
      Act for purposes of retribution—vengeance for its own sake.
      Nonetheless it strains credulity to suppose that the Act’s deterrent
      effect is not substantial, or that the Act does not promote community
      condemnation of the offender, both of which are included in the
      traditional aims of punishment.

Wallace v. State, 905 N.E.2d 371, 382 (Ind. 2009) (quotation marks and citations

omitted). Although we accept that SORNA of 1999 is not intended as retribution

for sex offenders’ crimes, it has that effect, due, in part, to its tendency to

stigmatize the registrant. As a result, “[i]t promotes community condemnation in

its most extreme form: vigilantism.” Letalien, 2009 ME 130, ¶ 75, 985 A.2d 4

(Silver, J., concurring).

      [¶96] As discussed in prior SORNA cases, and cited with concern by the

Does in this case, acts of violence against those registered on the Maine Sex
                                                                               47

Offender Registry are not unknown. In 2006, “a Canadian man targeted and

murdered two Maine sex offenders, who[m] he had located on Maine’s registry

website.” Doe, 2007 ME 139, ¶ 56 n.21, 932 A.2d 552 (Alexander and Silver, JJ.,

concurring); see also Letalien, 2009 ME 130, ¶ 75, 985 A.2d 4 (Silver, J.,

concurring). More recent iterations of SORNA continue to invite the possibility of

vigilantism by providing access to the registry via Maine’s registry website. The

use of the Internet registries allows anyone, anywhere in the world, to have

unlimited access to the information.

      [¶97] In addition to exposing the offenders to acts of vigilantism, there is

evidence that registries do not achieve their primary objective of protecting the

public. See 34-A M.R.S. § 11201 (2012) (“The purpose of this chapter is to protect

the public from potentially dangerous registrants and offenders by enhancing

access to information concerning those registrants and offenders.”).     See also

Kristen M. Zgoba & Karen Bachar, National Institute of Justice, Sex Offender

Registration and Notification: Limited Effect in New Jersey 2 (2009), available at

https://www.ncjrs.gov/pdffiles1/nij/225402.pdf (finding that the sex offender

registry did not reduce the number of rearrests for sex offenses or the number of

victims of sexual offenses). Instead, the registry may promote criminally deviant

behavior by socially isolating offenders.    See J.J. Prescott, Do Sex Offender

Registries Make us Less Safe?, Regulation, Summer 2012, at 50 (discussing the
48

“negative collateral consequences” for registrants, including loss of social ties, that

may cause an increase in criminal behavior). As Justice Brennan noted in Trop v.

Dulles, “I can think of no more certain way in which to make a man in whom,

perhaps, rest the seeds of serious antisocial behavior more likely to pursue further a

career of unlawful activity than to place on him the stigma of the derelict, uncertain

of many of his basic rights.” 356 U.S. 86, 111 (1958) (Brennan, J., concurring).

SORNA of 1999 clearly promotes retribution and deterrence by inadvertently

creating an environment where the Does are stigmatized in a way that may invite

violent attacks and stall rehabilitation.

D.    Excessiveness

      [¶98] SORNA of 1999 requires defendants convicted of statutorily specified

sex offenses to register. 34-A M.R.S. § 11203(5)-(8) (2012). The registry widely

disseminates information about all sex offenders convicted of these crimes. The

only information provided to the public upon which it can determine the potential

risk each offender poses, however, is the statutory citation and name of the offense

that placed the offender on the registry. The registry, and therefore the public,

does not take other factors into account, such as distinguishing between individuals

“who have been evaluated by a clinical and forensic psychologist and determined

to be at the lowest risk of reoffending, and those individuals who committed

multiple crimes; victimized infants and toddlers; and tortured, maimed, or killed
                                                                                49

their victims.” Letalien, 2009 ME 130, ¶ 77, 985 A.2d 4 (Silver, J., concurring).

By failing to distinguish among offenders, the registry exceeds its purpose of

promoting public safety, making its effects on registrants punitive.

E.    Evaluation of the Mendoza-Martinez Factors

      [¶99] We do not determine whether a statute has a punitive effect based on

the mere number of factors that demonstrate such effect. Instead, we assess these

factors and their relative weight. See Doe v. State, 189 P.3d at 1018. The factors

discussed here, as well as the majority’s discussion regarding whether the behavior

is already a crime, demonstrate that SORNA of 1999 has a punitive effect. Most

notably, SORNA of 1999 imposes requirements that are historically regarded as

punishment because of their connections to sentencing and the associated stigma.

Additionally, the stigma associated with the registry subjects the offenders to

retribution, which in turn promotes deterrence, which are traditional aims of

punishment. Overall, these factors provide clear proof that the statute’s punitive

effect overcomes the Legislature’s civil intent. See Smith, 538 U.S. at 92 (setting

forth the United States constitutional standard for determining criminality of sex

offenders registry).

                           II. MAINE CONSTITUTION

      [¶100] SORNA of 1999, as it applies to the Does, violates the Maine

Constitution. The Maine Constitution provides an independent basis for decision,
50

while the United States Constitution merely prescribes the minimum constitutional

protections that states must afford their citizens.18 We conclude that the Maine

Constitution can be distinguished from the United States Constitution, and that

SORNA of 1999 violates the Maine Constitution, even if it would pass muster

under the United States Constitution. Compare Smith, 538 U.S. at 105-06 (finding

the Alaska sex offender’s registry constitutional pursuant to the United States

Constitution) with Doe v. Alaska, 189 P.3d at 1003, 1007, 1019 (finding the Alaska

sex offender’s registry unconstitutional pursuant to the state constitution).

          [¶101]   The placement of the Ex Post Facto Clause within the Maine

Constitution, as compared to its placement in the United States Constitution,

provides us a basis for applying a more heightened standard.                           In the Maine

Constitution, the Ex Post Facto Clause is located in article I, section 11, which

declares the personal rights of Maine’s citizens, while the federal Ex Post Facto

Clause is located in article I, section 9, which describes the powers and limitations

of the legislative branch of the federal government. Compare Me. Const. art. I,

§ 11 with U.S. Const. art. I, § 9, cl. 3. The placement of the clause in the Maine

Constitution shows that the Maine Constitution establishes a right of the people to

not be subject to ex post facto laws, unlike the clause’s placement in the United

     18
       A more in-depth ex post facto analysis pursuant to the Maine Constitution, rather than the United
States Constitution, is provided in Letalien, 2009 ME 130, ¶¶ 66-72, 985 A.2d 4 (Silver, J., concurring).
                                                                                    51

States Constitution, which merely prohibits Congress from enacting an

ex post facto law as part of a list of limitations on the powers of Congress. The

distinction leads to a significant consequence: to obtain a declaration that SORNA

of 1999 is in violation of the prohibition on ex post facto laws in the Maine

Constitution, the Does need to merely overcome the presumption of

constitutionality; under the United States Constitution, they have to show the

“clearest proof” that the statute is punitive despite the legislative intent to make it

civil. See Smith, 538 U.S. at 92.

      [¶102] Here, the State argues that SORNA of 1999 is presumed to have a

civil effect, and thus be constitutional. Our opinion in Freeman emphasizes that a

statute such as SORNA of 1999, originally enacted as an explicitly criminal

punishment, cannot change its criminal nature and its punitive purpose simply by

changing its label and its citation.      Further, as the prior discussion of the

Mendoza-Martinez factors demonstrates, the statute’s punitive characteristics rebut

any presumption that the SORNA of 1999 law is somehow civil and non-punitive

and thus compliant with the Maine Constitution’s prohibition on ex post facto

laws. SORNA of 1999 exposes the registrants to a level of supervision, stigma,

and penalty that is not contemplated by civil statutes. Similarly, it promotes the

traditional aims of punishment by exposing the registrants to the same penalties as

those newly convicted. Whether these factors provide the “clearest proof” that the
52

effect of the statute is punitive is immaterial to the analysis under the Maine

Constitution. These factors show that there is no doubt that SORNA of 1999 has a

punitive effect that successfully rebuts the presumption of constitutionality and

makes SORNA of 1999 a criminal law.

      [¶103] For all the foregoing reasons, SORNA of 1999 is a retroactive

application of a criminal law, which punishes those who have paid their penalty to

society. Thus, it violates the Maine and United States Constitutions. Accordingly,

we would vacate the judgment of the Superior Court and remand for a declaration

that the requirements of SORNA of 1999 cannot be imposed, retroactively, on the

plaintiffs bringing this appeal.



On the briefs:

      James E. Mitchell, Esq., and Elizabeth H. Mitchell, Esq., Jim Mitchell and
      Jed Davis, P.A., Augusta, for appellants John Does I, III, IV, V, VI, VII,
      VIII, X, XIII, XVI, XVIII, XXIV, and XLIII

      Ronald W. Bourget, Esq., Law Offices of Ronald Bourget, Augusta, for
      appellants John Does XIX and XXIII

      William J. Schneider, Attorney General, Paul Stern, Dep. Atty. Gen., Laura
      Yustak Smith, Asst. Atty. Gen., and Ronald Lupton, Asst. Atty. Gen., Office
      of the Attorney General, Augusta, for appellee State of Maine
                                                                                    53

At oral argument:

        James E. Mitchell, Esq., for appellants John Does I, III, IV, V, VI, VII, VIII,
        X, XIII, XVI, XVIII, XIX, XXIII, XXIV, and XLIII

        Paul Stern, Dep. Atty. Gen., for appellee State of Maine



Kennebec County Superior Court docket number CV-2006-113
FOR CLERK REFERENCE ONLY
