
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________          No. 96-1002                              WILLIAM L. TAYLOR, ET AL.,                                Plaintiffs, Appellees,                                          v.                            STATE OF RHODE ISLAND, ET AL.,                               Defendants, Appellants.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                                                                      ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                 Cyr, Circuit Judge,                                      _____________                            and Cummings,* Circuit Judge.                                           _____________                                                                                      ____________________               Thomas  A. Palombo, Special Assistant Attorney General, with               __________________          whom  Jeffrey  B.   Pine,  Attorney   General,  Rebecca   Tedford                __________________                        _________________          Partington, Special Assistant Attorney  General, and Ellen  Evans          __________                                           ____________          Alexander,  Deputy Chief Legal Counsel, were on brief for appell-          _________          ants.               Richard A. Sinapi, with whom Sinapi Law Associates, Ltd. and               _________________            ___________________________          American Civil Liberties Union, were on brief for appellees.          ______________________________                                                                                      ____________________                                   December 4, 1996                                                                                      ____________________                                        ____________________               *Of the Seventh Circuit, sitting by designation.                    CYR,  Circuit Judge.   The  Rhode Island  Department of                    CYR,  Circuit Judge.                          _____________          Corrections ("Department") appeals from a district court judgment          declaring  ultra  vires  and  unconstitutional  the  Department's                     _____  _____          application of  a  Rhode  Island statute  which  would  impose  a          monthly  offender fee upon the  appellees, all of  whom were sen-          tenced to  probationary terms  under  Department supervision  for          criminal offenses committed  prior to the  effective date of  the          statute as implemented by  regulations promulgated by the Depart-          ment.  The district court  held that the Department's interpreta-          tion  of the  statute exceeded its  authority under  the enabling          statute and that  the statute, as applied  to appellees, violated          the ex post  facto clauses in the United  States and Rhode Island              __ ____  _____          Constitutions.  We  vacate the district court judgment and remand          for the entry  of summary  judgment for appellants  on the  ultra                                                                      _____          vires  and ex post facto  claims, and for  further proceedings on          _____      __ ____ _____          appellees' procedural due process claims.                                           I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Rhode Island  General Laws    42-56-38, P.L.  1992, ch.          133,  art.  97,    2,  directs  that "[e]ach  sentenced  offender          committed to  the care, custody,  or control of  the [Department]          shall  reimburse the state for the cost or the reasonable portion                 _________          thereof  incurred  by the  state  relating  to such  commitment."          (Emphasis  added.)   The  offender fee  statute itself  expressly                                                                  _________          delegates to the Department the power  to determine its effective          _________          date by  declaring that  its provisions "shall  not be  effective                                          2          until the date rules  and regulations implementing its provisions          are filed with the office of the Secretary of State."  Id.                                                                 ___                    The Department  responded by promulgating,  inter alia,                                                                _____ ____          Regulation 10.07.03,  designating July  1, 1994 as  the effective                                            _____________          date of the "offender  fee" program, following its filing  of the          implementing regulations  with the Secretary of State on June 17,          1994.   See  also R.I.  Gen. Laws     42-56-10(v) (Powers  of the                  ___  ____          director);  R.I. Gen. Laws   42-56-38 (Assessment of costs).  The          Regulation  further provides for  "offender fee" waivers based on          inability to pay, see Regulation   10.07.03(II)(E), and, in cases                            ___          of nonpayment, authorizes notification of the  appropriate crimi-          nal  court at any parole  or probation revocation  hearing, id.                                                                        __          10.07.03(II)(D),  as  well as  civil  actions  to collect  unpaid          offender  fees, id.  Mere nonpayment does not constitute a parole                          __          or probation  violation, however.  Id.   10.07.03(II)(D)(3).  Nor                                             __          are offenders  in "banked" status (i.e.,  either residing outside          Rhode Island or not on supervised status) liable for the fee, id.                                                                        __            10.07.03(II)(C)(3).                      Appellees,  all convicted offenders sentenced to proba-                                                        _________ __ ______          tion  prior to July 1, 1994, each received advance written notice          ____  _____ __ ____ _  ____          that the $15.00 offender fee would become effective July 1, 1994,          and subsequently  received monthly  bills.   Appellees thereafter          commenced  suit  in  federal  district court  claiming  that  the          offender  fee statute, as applied, violates the Ex Post Facto and          Due Process clauses of the United States and Rhode Island Consti-          tutions.   In due course, the parties submitted cross-motions for                                          3          summary judgment on  a stipulated record  and the district  court          ruled that  (i) the Department  had exceeded its  authority under          the  enabling statute by interpreting the statute so as to render          the offender fee retroactive as to appellees and (ii) the statute          violated the  Ex  Post Facto  Clause since  it retroactively  in-          creased  the "punishment"  for  their preenactment  crimes.   See                                                                        ___          Taylor  v. State  of Rhode  Island Dept.  of Corrections,  908 F.          ______     _____________________________________________          Supp. 92 (D.R.I. 1995).                                           II                                          II                                     DISCUSSION1                                     DISCUSSION1                                     __________          A.   The Ultra Vires Claim          A.   The Ultra Vires Claim               _____________________                    The district court concluded that the statutory  inter-          pretation adopted  by the  Department exceeded  the scope of  its          delegated  authority because  it (i)  results in  an unauthorized          "retroactive" application  and (ii) would not  be accorded defer-          ence by the Rhode Island Supreme Court.  As the plain language of          the statute demonstrates  that the Department did not  exceed its          mandate, we demur.                     Under Rhode Island law,  it "is well established .  . .          that statutes and their amendments are presumed to apply prospec-          tively."   Hydro-Manufacturing v. Kayser-Roth, 640  A.2d 950, 954                     ___________________    ___________          (R.I. 1994).   See also VanMarter v.  Royal Indem. Co., 556  A.2d                         ___ ____ _________     ________________                                        ____________________               1We review summary judgment rulings de novo, and must uphold                                                   __ ____          them if  the record, "viewed in  the light most favorable  to the          nonmoving party,  reveals no  trialworthy issue of  material fact          and the moving party is entitled to judgment as a matter of law."          Velez-Gomez  v. SMA Life Assur. Co., 8 F.3d 873, 874-75 (1st Cir.          ___________     ___________________          1993).                                          4          41, 44 (R.I.  1989); Lawrence v.  Anheuser-Busch, Inc., 523  A.2d                               ________     ____________________          864, 869 (R.I. 1987).   It  is only in the event that "it appears          by  strong,  clear language  or  necessary  implication that  the          Legislature intended the  statute or amendment to have a retroac-          tive effect," id.; see also Pion  v. Bess Eaton Donuts Flour Co.,                        ___  ___ ____ ____     ____________________________          Inc., 637 A.2d 367, 371 (R.I. 1994), that the new enactment "will          ____          be interpreted to  operate retrospectively."     Avanzo v.  Rhode                                                           ______     _____          Island Dept. of Human Servs., 625 A.2d 208, 211 (R.I. 1993).           ____________________________                    The statute itself explicitly  states that the offender          fee "shall not  be effective until the date the rules and regula-          tions are  filed."  R.I. Gen.  Laws   42-56-38.   Thus, its plain          language requires  no interpretation, see  Whitehouse v.  Rumford                                                ___  __________     _______          Liability  &  Ins. Co.,  658 A.2d  506,  508 (R.I.  1995),  as it          ______________________          mandates  prospective application.   See, e.g., Hydro-Manufactur-                                               ___  ____  _________________          ing,  640 A.2d at 955  (statute which states  that it "shall take          ___          effect upon passage" evinces plain legislative  intent that it be          given  only prospective  application);  Avanzo, 625  A.2d at  211                                                  ______          (holding  that phrase "shall  take effect"  indicates legislative          intent that statute be  given prospective effect).  As  the Rhode          Island Legislature  explicitly delegated  to  the Department  the          responsibility for  promulgating and  filing the required  imple-          menting rules and  regulations with the Secretary of State before          the offender fee program could take effect, R.I. Gen. Laws    42-          56-38, and there is no claim that the Department failed to comply          with the legislative mandate, its designation of a later (July 1,          1994) effective  date could not render  its interpretation either                                          5          ultra vires or retroactive.2          _____ _____          B.   The Ex Post Facto Claim          B.   The Ex Post Facto Claim               _______________________                    The district  court awarded appellees  summary judgment          on their claims  that the  offender fee statute  violates the  Ex          Post Facto Clause under both  the United States Constitution  and          the Rhode  Island Constitution.3   As  the  Rhode Island  Supreme          Court has held  that Federal Ex  Post Facto Clause  jurisprudence          likewise  guides the  required  analysis under  the Rhode  Island          Constitution, Lerner  v. Gill, 463  A.2d 1352, 1356  (R.I. 1983),                        ______     ____          cert. denied, 472 U.S. 1010 (1985), these claims merge.           _____ ______                    The Ex  Post  Facto Clause  effectively prohibits  laws                                        ____________________               2It  appears that the district court may have been misled by          an ambiguity  in the  statutory language,  which states  that the          offender fee shall apply to "each sentenced offender committed to                                                               _________          the care, custody  or control  of the [Department]."   R.I.  Gen.          Laws   42-56-38 (emphasis added).  The court correctly noted that          "[t]he word 'committed'  could mean either 'who  has been commit-          ted,'  which  would include  existing  probationers,  or 'who  is          committed,'  which   would  implicate  only   new  probationers."          Taylor, 908  F. Supp. at 104.   However that may  be, we suggest,          ______          the Department's interpretation cannot be considered ultra vires.                                                               _____ _____          As  the agency  responsible  for implementing  and enforcing  the          statute,  it   was  entirely  appropriate  that   the  Department          disambiguate  the statutory  language.   See Gallison  v. Bristol                                                   ___ ________     _______          Sch. Comm., 493 A.2d 164, 166 (R.I. 1985).            __________               We  need  not decide  at  this  time, however,  whether  the          Department's  interpretation  of the  term  "committed"  would be          material under a due process analysis.   See Avanzo, 625 A.2d  at                                                   ___ ______          208 (retroactive application violates due process); Lawrence, 523                                                              ________          A.2d  at 864  (due  process  challenge to  explicitly-retroactive          legislation); but see Rhode Island Depositors Economic Protection                        ___ ___ ___________________________________________          Corp. v. Brown, 659 A.2d 95, 103 (R.I.), cert. denied, 116 S. Ct.          _____    _____                           _____ ______          476 (1995) (retrospectivity alone  does not render statute viola-          tive of due process).                 3Article 1,    10, of  the United  States Constitution  pro-          vides:  "No State shall . . .  pass any . . . ex post facto Law."          Article 1,   12, of the Constitution of the State of Rhode Island          reads:  "No ex post facto law . . . shall be passed."                                          6          "'retroactively   alter[ing]  the   definition   of   crimes   or          increas[ing]  the punishment  for  criminal  acts.'"   California                                                                 __________          Dept. of Corrections  v. Morales,  115 S. Ct.  1597, 1601  (1995)          ____________________     _______          (quoting Collins v.  Youngblood, 497  U.S. 37, 43  (1990)).   See                   _______     __________                               ___          also Hamm  v. Latessa, 72 F.  3d 947, 956 (1st  Cir. 1995), cert.          ____ ____     _______                                       _____          denied, 117 S. Ct. 154 (1996).   Thus, ex post facto laws operate          ______                                 __ ____ _____          retroactively either to redefine a crime or increase its "punish-          ment."  Morales, 115 S. Ct.  at 1602 n.3.  See also  Dominique v.                  _______                            ___ ____  _________          Weld, 73 F.3d 1156, 1162 (1st Cir. 1996).          ____                  It  would  appear that  the  parties failed  to  call the          district  court's attention  to significant  precedents governing          the pivotal determination whether civil fees constitute  "punish-          ment."  See Taylor,  908 F. Supp. at 98.   Although it involved a                  ___ ______          "double  jeopardy" claim, United  States v. Halper,  490 U.S. 435                                    ______________    ______          (1989), applies as well in the ex post facto context.  See Martel                                         __ ____ _____           ___ ______          v. Fridovich, 14 F.3d 1, 3 (1st Cir. 1993) (citing Halper for the             _________                                       ______          view  that a civil sanction  is "punishment" only  when it serves          the aims of retribution or deterrence).4  As we explained recent-          ly, the Halper "punishment"  test applies to "fines, forfeitures,                  ______          and other monetary penalties designed to make the sovereign whole          for harm or loss that is quantifiable in monetary terms."  United                                                                     ______          States v. Stoller, 78 F.3d 710, 717 (1st Cir.) , cert. dismissed,          ______    _______                                _____ _________             S. Ct.       (1996).   Since it  is clear that  the challenged          __         ____                                        ____________________               4Subsequent to the district court decision in this case, the          Rhode Island Supreme Court adopted the  Halper test for determin-                                                  ______          ing whether a civil fee constitutes "punishment" under the Double          Jeopardy Clause.   See State v.  One Lot of $8,560,  670 A.2d 772                             ___ _____     _________________          (R.I. 1996).                                            7          offender fee fits the Stoller mold, the Halper "punishment"  test                                _______           ______          applies.  See  also Artway  v. Attorney General  of State of  New                    ___  ____ ______     __________________________________          Jersey, 81  F. 3d 1235,  1256 n. 18  (3d Cir. 1996)  (noting that          ______          Halper  test applies  because Ex  Post Facto  Clause  serves aims          ______          similar to Double Jeopardy Clause); DiCola v. Food & Drug Admin.,                                              ______    __________________          77 F.3d 504,  506-07 (D.C.  Cir. 1996) (applying  Halper test  to                                                            ______          both ex post facto  and double jeopardy claims); Bae  v. Shalala,               __ ____ _____                               ___     _______          44 F.3d 489, 492-93 (7th Cir. 1995) (employing Halper standard to                                                         ______          determine whether  civil sanction  implicates ex post  facto con-                                                        __ ____  _____          cerns).                    Halper adapted the Supreme Court's longstanding subjec-                    ______          tive test for defining "punishment," see DeVeau v.  Braisted, 363                                               ___ ______     ________          U.S. 144, 160 (1960) ("The question is . . . whether the legisla-          tive aim was to  punish that individual for past  activity."), by          coupling it with an  objective standard.  Accordingly, under  the          current regime  governing civil  provisions, we inquire  not only          whether  the  legislative  intent  was punitive  in  nature,  but                                     ______          whether the challenged civil provision is "so extreme . . . as to          constitute punishment."  Halper, 490 U.S. at 442.                                     ______                    For purposes of  determining whether a law  is penal in          nature,  "the labels 'criminal' and 'civil'  are not of paramount          importance."  Id. at 447.  Rather, the court must  "assess[]. . .                        ___          the [sanction] imposed and  the purposes [it] may fairly  be said          to serve.  Simply put, a civil . . . sanction constitutes punish-          ment when the sanction  as applied in the individual  case serves          the goals of punishment[,]" id. at 448; see Martel, 14 F.3d at 3;                                      ___         ___ ______                                          8          that is to say, retribution and deterrence.  Halper, 490 U.S.  at                                                       ______          448.                    On its face, the offender fee statute, suitably located          among other Rhode Island civil statutes, imposes a civil charge.5          The modest fee authorized by the statute comprises no part of any          sentence imposed  for the crimes committed by offenders.  Rather,          it is expressly designed to "reimburse"  the Department for costs          directly associated with providing goods and services required to          supervise  probationers and  parolees  living  in the  community.          R.I. Gen. Laws    42-56-38.  Moreover, all offender  fee revenues          are dedicated to such use, Regulation 1.12.01(IV)(K), and waivers          are   available   to   offenders   unable   to   pay,  Regulation          10.07.03(II)(E).    Finally, the  same  monthly  fee is  assessed          against  all offenders released  into the community  who are cur-          rently under Department supervision, without regard to the nature          or severity of their  respective offenses.6  In our  judgment, so                                        ____________________               5Our research discloses no relevant legislative history.                6In determining  that the offender fee  constituted "punish-          ment," the  district court  ruled that  it was  part of  "the law          annexed  to the crime,"  Calder v. Bull, 3  U.S. 386, 390 (1798),                                   ______    ____          since probation is punishment  and the offender fee is  linked to          appellees' probationary  sentences.   In our view,  this analysis          overlooks several determinative distinctions.                 First,  though a probationary  sentence is "punishment," the          supervisory services for probationers released into the community          are largely rehabilitative, both in nature and purpose.  See R.I.                                                                   ___          Gen. Laws   42-56-4(c) (Organization of department) ("Rehabilita-          tive services shall include . . . intermediary sanctions (includ-          ing but not limited  to . . . probation, parole, restitution, and          community service) . . . .").  See also United States v. Cardona,                                         ___ ____ _____________    _______          903 F.2d 60,  62 (1st  Cir. 1990) (noting  that probation  serves          goals  of rehabilitation  and public  safety), cert.  denied, 498                                                         _____  ______          U.S.  1049 (1991); Tillinghast v. Howard, 287 A.2d 749, 752 (R.I.                             ___________    ______          1972) ("[I]t is for the purpose of giving a convicted accused the                                          9          modest a  cost-based supervisory fee reasonably  cannot be deemed          punitive in purpose, especially since any conceivable retributive                      _______          or  deterrent effect could only be  inconsequential.  See Martel,                                                                ___ ______          14 F.3d at 3.                     Finally, we  inquire whether the  fee nonetheless  runs          afoul  of the  objective test  announced in  Halper:   a monetary                                                       ______          assessment  "that  cannot  be said  solely  to  serve a  remedial          purpose,  but rather can only be explained as also serving either          retributive or deterrent purposes, is  punishment as we have come          to understand  the term."  Halper,  490 U.S. at 448.   Under this                                     ______          standard, the offender fee must be deemed "punitive" if it "bears          no  rational relation to the goal of compensating the [State] for          its  loss."  Id. at 449.7  To  state the question in this case is                       ___          to answer it.                                        ____________________          opportunity for rehabilitation that he retains his liberty and is          placed on probation.").   Second, the monthly fee is  not imposed          on  all offenders sentenced to probation, but only those actually          receiving the  supervisory services  whose costs are  defrayed by          the fee.  Regulation 10.07.03(II)(C)(3).                 Thus, the offender fee differs  materially from the fees  at          issue in  a case relied upon  by appellees and cited  by the dis-          trict court, see In re Petition  of Delaware for a Writ of Manda-                       ___ ________________________________________________          mus, 603 A.2d 814  (Del. 1992), in which monetary  sanctions were          ___          imposed on the  offenders at  sentencing.  The  fees involved  in                                    __  __________          that case  were blanket surcharges, calculated  as percentages of          the criminal penalty, fine,  or forfeiture imposed at sentencing,          rather than reimbursements for the costs of providing services to          the offenders.  As the Halper Court explained, "it is the purpos-                                 ______          es  actually served by the sanction in question, not the underly-          ing  nature of the proceeding  giving rise to  the sanction, that          must be evaluated."  Halper, 490 U.S. at 447 n.7.                                 ______               7We note no  contention, and  no evidence,  that the  $15.00          monthly fee  exceeds the costs associated  with providing Depart-          ment supervision of  offenders released into the community.   See                                                                        ___          Halper, 490 U.S. at 452.            ______                                          10                    The   offender  fee  statute  mandates  that  "[m]onies          received under this  section will accrue first  to the department          of  corrections for use  to offset costs of  the specific care or          service."  R.I. Gen.  Laws   42-56-38.  The  implementing regula-          tions in turn  make clear  that the offender  fee was  rationally          designed to promote  its legislative objective;  viz., reimburse-                                                           ___          ment  of the Department for  its costs in  providing the required          supervisory services  to its probationers and  parolees.  Regula-          tion 1.12.01(IV)(K).   Furthermore, the  implementing regulations          explicitly state that the offender fees collected from probation-          ers  and parolees  must  be deposited  in  a restricted  account,          exclusively available for defraying Department costs in affording          offenders the required community  supervision.8  Thus, the legis-          lative  intent actuating  the  offender fee  program is  entirely          remedial  and its  practical  effect is  neither retributive  nor          deterrent  in  nature.   Under  the Halper  test,  therefore, the                                              ______          offender fee is not punitive.9                                           ____________________               8Moreover,  as already noted,  see supra p.  3, the offender                                              ___ _____          fee is imposed only on probationers and parolees currently  under          Department supervision in the community, not upon probationers in          "banked"  status.   Regulation 10.07.03(II)(C)(3).   Thus, rather          than a blanket fee  assessed at sentencing without regard  to the          commencement or  duration of  any term of  community supervision,          the  Rhode Island offender fee is directly and rationally related          to recouping the  State's costs in  providing supervision to  the          individual offenders for whose benefit the services are rendered.          Cf. In re Petition of  Delaware for a Writ of Mandamus,  603 A.2d          __  __________________________________________________          814 (Del. 1992); note 4 supra.                                  _____               9The fact that  nonpayment of the fee can be  brought to the          attention of the court  at a parole/probation revocation hearing,          see supra p.3, does not transform the fee into punishment.  While          ___ _____          revocation  of parole/probation might  constitute punishment, the          Supreme  Court explained  in Morales  that courts  must determine                                       _______                                          11                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    For the foregoing reasons, the  district court judgment          is reversed and the  case is remanded for further  proceedings on          appellees' procedural due process  claims under state and federal          law.  The parties shall bear their own costs.                     SO ORDERED.                    SO ORDERED                    __ _______                                        ____________________          whether  a  legislative change  "produces  a  sufficient risk  of          increasing  the measure of punishment."   Morales, 115  S. Ct. at                                                    _______          1603.  A legislative change which creates only a "speculative and          attenuated  possibility of  producing  the  prohibited effect  of          increasing the  measure of  punishment" is insufficient  to raise          the ex  post facto specter.   Id.   As the district  court recog-              __  ____ _____            ___          nized, any possible  link between nonpayment of  the offender fee          and  the  revocation of  parole/probation  is  too attenuated  to          render  the offender fee violative  of the Ex  Post Facto Clause,          Taylor,  908 F. Supp. at  101, especially since  inability to pay          ______                                           _________ __ ___          constitutes grounds for waiver.                                           12
