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                                                               No. 00-277

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2001 MT 315N



                                                  FRANK S. VAN DER HULE,

                                                     Petitioner and Respondent,

                                                                      v.

                                                      STATE OF MONTANA.

                                                    Respondent and Appellant.

                        APPEAL FROM: District Court of the Eighteenth Judicial District,

                                                In and for the County of Gallatin,

                                    The Honorable Thomas A. Olson, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

        Joseph P. Mazurek, Montana Attorney General, Clay R. Smith, Solicitor, Helena, Montana

                                                            For Respondent:

                                  Frank S. Van der hule, Three Forks, Montana (pro se)

                                            Submitted on Briefs: October 26, 2000
                                               Decided: December 31, 2001

                                                                   Filed:

                                    _________________________________________


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                                                                     Clerk




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


¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent. The decision shall be filed as
a public document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 The State appeals the restraining order granted by the Eighteenth Judicial District
Court, Gallatin County, prohibiting the inclusion or public posting of Frank S.
Van der hule's name and approximate address on the county's sex offender register. We
reverse and remand.

¶3 On December 7, 1983, Frank S. Van der hule was convicted in Deer Lodge County and
sentenced to 20 years on one count of sexual assault and 25 years on four counts of sexual
intercourse without consent. The sentences ran concurrently and Van der hule was paroled
on March 29, 1993. Van der hule states that he received no notice from officials at the
Montana State Prison directing him to register as a sexual offender under the provisions of
the Sexual Offender Registration Act (§ 46-23-501, et seq., MCA (1989)). Throughout his
period of parole, Van der hule never registered, and asserts his parole officer assured him
that he was not required to register. Van der hule completed his sentence on May 20,
1996.

¶4 In July 1999, Van der hule, then a resident of Bozeman received written notice from the
Department of Justice directing him to update his sexual offender registration by verifying
his address and submitting fingerprints, a current photograph and a signed statement about
his criminal history. Van der hule did not comply. He filed a petition to restrain law
enforcement officials from including him on Gallatin County's roster of sexual and violent
offenders. A hearing was held on October 20, 1999, at which Van der hule appeared pro
se. On February 8, 2000, the District Court ordered the State to remove Van der hule's
name from the sexual offender register and all public postings.


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¶5 The District Court acknowledged that Van der hule fell within the class of persons
explicitly subject to the 1997 amendments to the Sexual and Violent Offenders
Registration Act, which applied more exacting registration requirements retroactively to
"sexual offenders who are sentenced or who are in the custody or under the supervision of
the department of corrections on or after July 1, 1989." Sec. 18, Ch. 375, L. 1997. Van der
hule was a convicted sexual offender in custody at the Montana State Prison on July 1,
1989, and under state supervision until May 20, 1996. However, the court observed that
"by the time the Legislature got around to making the law retroactive" in 1997, Van der
hule had discharged his sentence and had his full civil rights restored. The court concluded
that the Act did not apply to Van der hule.

¶6 The issue raised on appeal is whether the District Court erred in placing Van der hule
beyond the reach of the Sexual and Violent Offenders Registration Act. Our standard of
review is plenary when we must determine whether the district court's conclusions of law
are correct as a matter of law. State v. Alexander (1994), 265 Mont. 192, 204, 875 P.2d
345, 352.

¶7 Van der hule argues that he achieved constitutional protection from the authority of the
Sexual and Violent Offender Registration Act when he completed his sentence on May 20,
1996. Van der hule does not challenge the Sexual and Violent Offenders Registration Act
on the basis of ex post facto or double jeopardy prohibitions, although the State offers
extensive arguments in defense of such facial challenges. Instead, he cites the guarantee of
Article II, Section 28(2) of the Montana Constitution, which states: "Full rights are
restored by termination of state supervision for any offense against the state." The restored
right Van der hule asserts would be unconstitutionally violated by registration and public
notification under the Act is his right to privacy. Because Van der hule raises a narrow, "as
applied" constitutional challenge, a review of the statutory history of sexual offender
registration in Montana provides a useful context for evaluating his claim.

¶8 At the time of Van der hule's release from prison on March 29, 1993, the Sexual
Offender Registration Act, as it was then named, had been in effect for almost four years.
Sec. 1-13, Ch. 293, L. 1989 (codified at §§ 46-18-254, -255 and 46-23-501 to -507, MCA
(1989)). A plain reading of the Sexual Offender Registration Act leads to the conclusion
that Van der hule came under its authority upon enactment in 1989. Briefly stated, the Act
directed the warden of the Montana State Prison to notify all sexual offenders in writing of
their duty to maintain registration with local law enforcement agencies after their release.
Sections 46-18-254 and 46-23-503, MCA (1989). The Act defined a sexual offender as "a

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person who has been convicted of a sexual offense." Section 46-23-502(2), MCA (1989).
The definition of a sexual offense explicitly included the two sexual crimes for which Van
der hule received convictions: sexual assault under § 45-5-502(3), MCA, and sexual
intercourse without consent under § 45-5-503, MCA Section 46-23-502(3)(a), MCA
(1989).

¶9 Van der hule claims he received no written notice upon his release from prison in 1993.
While the alleged lack of notice may raise a due process concern, Van der hule's persistent
noncompliance does not eradicate his legal duty to register as a sexual offender under the
provisions of the Act.

¶10 The Legislature encompassed violent offenders under the renamed Sexual and Violent
Offenders Registration Act in 1995. Sec. 5, Ch. 407, L. 1995. The amendments assigned
registration costs to the offender and increased penalties for knowing failure to register
from 90 days imprisonment and a $250 fine, to five years imprisonment and a $10,000
fine. Sections 46-23-504(3) and 46-23-507, MCA (1995). Lifetime registration was
required for all convicted sexual and violent offenders, and a new provision gave certain
offenders an opportunity to seek judicial relief from the duty to register after ten years.
Sections 46-23-506(1) and (2), MCA (1995).

¶11 In 1997, the Legislature again amended the Sexual or Violent Offenders Registration
Act, and advanced a preamble clarifying its intent to protect public safety and prevent
victimization by warning communities of the presence of convicted sexual or violent
offenders and assisting law enforcement in apprehending repeat offenders. Ch. 375,
Preamble, L. 1997. New statutory provisions keyed public disclosure of specific personal
data about the offender to three designated levels of risk to the community. Section 46-23-
508, MCA (1997). The Act required a professional evaluation be prepared prior to the
assignment of a recidivism risk level to a sexual offender by the sentencing court. Section
46-23-509, MCA (1997). As noted above, the Legislature explicitly applied the provisions
of the revised Act retroactively. Sec. 18, Ch. 375, L. 1997. Subsequent changes to the Act
clarified the State's responsibilities for gathering information, providing public notice of
the presence of offenders in communities, and initiating public safety educational
programs. See Secs. 1-7, Ch. 227, L. 1999 and Secs. 1-12, Ch. 222, L. 2001.

¶12 Van der hule raises a constitutional challenge to the retroactive application of the
statutory provisions for lifetime registration, harsher penalties for noncompliance,
establishment of a recidivism risk level and enhanced public notice. Basing his argument


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on Article II, Section 28(2) of the Montana Constitution, Van der hule contends that
restoration of his "full rights" on May 20, 1996, prohibits retroactive application of a
statute that is punitive and impinges upon his right to privacy. He asserts the spirit of the
constitutional provision is embodied at § 46-18-801(2), MCA, which reads,

        Except as provided in the Montana constitution, if a person has been deprived of a
        civil or constitutional right by reason of conviction for an offense and the person's
        sentence has expired or the person has been pardoned, the person is restored to all
        civil rights and full citizenship, the same as if the conviction had not occurred.

¶13 In construing both constitutional and statutory provisions, an interpretation that
achieves a reasonable result is favored. State v. Gafford (1977), 172 Mont. 380, 389, 563
P.2d 1129, 1134 (citations omitted). We have consistently held that after termination of
state supervision, a prior felony conviction may still adversely impact a person's life
without abrogating the intent of Article II, Section 28, to restore the "full rights" of the
convicted person. See State v. Sanders (1984), 208 Mont. 283, 676 P.2d 1312 (upholding
enhanced sentencing due to prior felony conviction); State v. Radi (1978), 176 Mont. 451,
578 P.2d 1169 (upholding persistent felony offender statute); State v. Maldonado (1978),
176 Mont. 322, 578 P.2d 296; and State v. Gafford, (1977), 172 Mont. 380, 563 P.2d 1129
(allowing impeachment of witness with prior felony conviction). In Gafford, we
characterized the restoration of the "full rights" provided by Article II, Section 28, as
follows:

        In our view the constitutional provision refers to those rights commonly considered
        political and civil rights incident to citizenship such as the right to vote, the right to
        hold public office, the right to serve as a juror in our courts and the panoply of rights
        possessed by all citizens under the laws of the land. It has no reference to an
        individual's characteristics, record, or previous conduct demonstrated by a prior
        felony conviction.

Gafford, 172 Mont. at 189-90, 563 P.2d at 1134. This interpretation is consistent with the
proceedings of the 1972 Constitutional Convention, which reference "full rights" as
entailing "all civil and political rights." Montana Constitutional Convention, Verbatim
Transcript, March 9, 1972, p. 1800-01. The Bill of Rights Committee reported their
intention to the Convention with the following specificity:

        [T]he committee recommends that once a person who has been convicted has served


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        his sentence and is no longer under state supervision, he should be entitled to the
        restoration of all civil and political rights, including the right to vote, hold public
        office and enter occupations which require state licensing.

Montana Constitutional Convention, Committee Reports, February 22, 1972, p. 643.

¶14 In summary, Article II, Section 28 of the Montana Constitution and § 46-18-801(2),
MCA, afford an offender who has served his sentence a fair opportunity to share in the
civil and political rights enjoyed by all law-abiding citizens. However, neither provision
grants a prior offender immunity nor expunges a criminal record. Therefore, we hold that
Van der hule's convictions for multiple sexual offenses and his incarceration at the time
sexual offender registration was enacted by the Montana Legislature in 1989 place him
under the authority of the registration statutes, §§ 46-23-501, MCA, et. seq., as well as the
subsequent, retroactively applied amendments to the Sexual and Violent Offenders
Registration Act.

¶15 Reversed and remanded.

                                                    /S/ JAMES C. NELSON

                                                               We Concur:

                                                      /S/ KARLA M. GRAY

                                                         /S/ JIM REGNIER

                                               /S/ W. WILLIAM LEAPHART

Justice Terry N. Trieweiler dissenting.

¶16 I dissent from the majority opinion.

¶17 While I appreciate that the opinion cannot be cited as precedent, it nevertheless does
finally resolve important constitutional rights claimed by Frank S. Van Der Hule. I do not
believe those issues should have been resolved based on Van Der Hule's pro se appearance
in the District Court and again in this Court. Counsel should have been appointed to
represent him and a decision made only after an informed discussion of the issues in the
true tradition of the adversarial process.

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¶18 However, even without the benefit of arguments by trained counsel, it is apparent that
at least Van Der Hule's right guaranteed by Article II, Section 28, Mont. Const., has been
violated. That provision guarantees that "(2) Full rights are restored by termination of state
supervision for any offense against the state." Van Der Hule's supervision for his offenses
against the State was terminated on May 20, 1996. Section 46-18-801, MCA (1995),
which was in effect at that time provided in relevant part that:

        Except as provided in the Montana Constitution, if a person has been deprived of a
        civil or constitutional right by reason of conviction for an offense and then the
        person's sentence has expired or the person has been pardoned, the person is
        restored to all civil rights and full citizenship, the same as if the conviction had not
        occurred.

¶19 One of the constitutional rights of which Van Der Hule was deprived by reason of his
conviction was his right to privacy. Article II, Section 10, Mont. Const., provides that:
"The right of individual privacy is essential to the well being of a free society and shall not
be infringed without the showing of a compelling state interest."

¶20 Notwithstanding this Court's decision in State v. Gafford (1997), 172 Mont. 380, 563
P.2d 1129, there is no way to interpret the plain language of Article II, Section 28, so that
it does not include those rights found in Montana's Bill of Rights, including the right to
privacy. Furthermore, because the language of Article II, Section 28, is clear, there is no
reason to resort to extraneous sources of interpretation, such as minutes of the
Constitutional Convention, in order to construe those words in a manner other than their
straightforward application requires.

¶21 Finally, even if State v. Gafford had been decided correctly (and I conclude that it was
not), it is distinguishable from the facts in this case. Van Der Hule is not asking that his
conviction be stricken as a matter of public record. He is simply asking that his privacy
not be further invaded retroactively by registration and public posting requirements after
he has discharged his sentence.

¶22 Without regard to whether the 1989 provisions of the Sex Offender Registration Act
applied to Van Der Hule, the 1997 amendments clearly constituted a further and
substantial invasion of his right to privacy following the discharge of his sentence and the
total restoration of his constitutional right to privacy. Therefore, I would conclude that the


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1997 amendments at issue in this case cannot be constitutionally applied to him.

¶23 I also believe that there are serious questions about whether the Sex Offender
Registration Act violates Article II, Sections 25 and 31, of the Montana Constitution
which protect against double jeopardy and ex post facto laws. However, since those
provisions were not the basis for the District Court's decision nor the majority's opinion
and since I conclude that Article II, Section 28, is a sufficient basis for affirming the
District Court, their discussion can await another day.

                                                /S/ TERRY N. TRIEWEILER




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