In a 5-3 decision this week, the Oklahoma Supreme Court ruled the Sex Offender Registration Act’s provision prohibiting sex offenders from living within 2,000 feet of a park applies retroactively to those who registered prior to the provision’s 2006 enactment. Tuesday’s narrow decision in Donaldson v. City of El Reno highlights a tense disagreement among justices on whether sex offenders can constitutionally be forced to comply with new requirements passed by the Legislature after their conviction, with only four permanent justices signing onto a majority opinion that comes more than a year after oral arguments were held.
The U.S. and Oklahoma constitutions both prevent the implementation of ex post facto laws, and state applications of sex offender registry requirements added after an offender’s conviction have generated challenges under both. Justices on Oklahoma’s highest court split into three camps in the case:
- a majority taking a case-by-case approach to analyzing the constitutionality of individual sex offender registry requirements;
- a minority that argued historic review illustrated how sex offender registration requirements were clearly intended by the Legislature to be punitive; and
- a sole justice who advocated a general holding that all sex offender registry requirements are civil and presumed constitutional.
The majority opinion cited a constitutional test adopted by the court in Starkey v. Oklahoma Department of Corrections as one of the reasons retroactive application of the law was constitutional. However, the author of the dissenting opinion in the new Donaldson decision — Justice Douglas Combs — was the author of the majority opinion in the Starkey decision, and in his dissent, he insisted the majority flouted the precedent set by the decision he had previously written.
The case made its way to the state Supreme Court after Kelly Patrick Donaldson, who was convicted of second degree rape in 2005, asked the El Reno Police Department if he could purchase a property in the city near Lake Reno. Police informed Donaldson that the entirety of the lake was a park under state law, and he could not live within 2,000 feet of the property line. He bought the property anyway and filed suit to challenge the constitutionality of the state sex offender registry’s restriction, because the requirement was passed into law in 2006, a year after his conviction. Canadian County District Judge Jack McCurdy II agreed with Donaldson and found retroactive application of new registration requirements were unconstitutional.
Judge James Huber, of the Court of Civil Appeals, was appointed last year by then-Chief Justice M. John Kane IV to serve as a temporary justice solely for the Donaldson case. Huber joined Kane, who authored the opinion, alongside Chief Justice Dustin Rowe and Justices Noma Gurich and Richard Darby in the majority.
“In the seminal case Smith v. Doe, the [U.S.] Supreme Court set forth what has become known as the ‘intent-effects’ test for determining whether the retroactive application of sex offender registration laws violates the ex post facto clause of the [U.S.] Constitution. We adopted this test in Starkey v. Oklahoma Department of Corrections,” Kane wrote. “The ex post facto clause applies only to criminal or penal laws. Therefore, the initial inquiry is whether the Legislature intended for the provision to be civil or criminal. If the Legislature intended to impose punishment, it is criminal, and the ex post facto clause prohibits its retroactive application. But, if the Legislature intended for the provision to be part of a civil, non-punitive regulatory scheme, we apply the intent-effects test to determine whether the civil, regulatory provision is so punitive, either in purpose or effect, as to negate that intent.”
The majority found the park residency requirements were part of a “civil, non-punitive regulatory scheme” and applied the intent-effects test. That test is derived from Kennedy v. Mendoza-Martinez, a 1963 U.S. Supreme Court case, and weighs whether the effects of a civil regulation are too punitive to withstand constitutional scrutiny. The test has seven factors in Oklahoma:
- Whether the law imposes an affirmative disability or restraint;
- Whether it has been historically regarded as a punishment;
- Whether its operation promotes the traditional aims of punishment — retribution and deterrence;
- Whether it has a rational connection to a non-punitive purpose;
- Whether it is excessive in relation to this purpose;
- Whether it is incumbent only on a finding of scienter; and
- Whether the behavior to which it applies is already a crime.
The majority found that factors two, three, four, five, six, and seven did not support the conclusion the regulations were too punitive, while conceding that the first factor did weigh in favor of finding a punitive effect. Finding only one of the seven factors met, the court ruled that applying the 2,000 feet residency restriction to registered sex offenders convicted before enactment of the residency requirement is constitutional.
“The law prohibiting registered sex offenders from residing within 2,000 feet of a city park, [Title 57, Section 590(A)], does not amount to punishment and applies retroactively to persons who became subject to the provisions of SORA prior to the law’s enactment or amendment without violating the ex post facto clauses of the federal or state constitution,” Kane concluded.
Vice Chief Justice Dana Kuehn wrote separately and concurred in the case’s result, but dissented to argue the court should have issued a more broad holding that all SORA regulations are presumed civil to prevent continued litigation over whether other parts of Oklahoma’s sex offender registry violated the federal or state constitution.
“If we find SORA is civil once, we don’t have to find it again in every case. Going forward, the burden will always be on the sex offender to show that a specific SORA provision is punitive as applied to him. That is, if we once find that SORA as a whole is civil, the presumption is that its provisions may always apply retroactively; only if a court finds that a provision is punitive in effect must it be applied prospectively. This would reduce the litigation surrounding SORA and simplify SORA claims,” Kuehn wrote. “As I describe above, Starkey’s reasoning is so uncertain that even this court can’t agree on what it says, much less what it means.”
The two dissenting Justices, Combs and James Edmondson, both reached the opposite conclusion from Kuehn, finding that the legislative history of Oklahoma’s sex offender registry clearly demonstrated the legislation was not civil in nature.
Dissent: ‘The Legislature’s intent was retributive and punitive’
Combs wrote the dissent and took issue with the majority’s reading of Starkey, a decision he authored.
“I reach this conclusion because I disagree with the majority on three major points in their application of the ‘intent-effects’ test that this court adopted in Starkey v. Oklahoma Department of Corrections,” Combs wrote. “First, I take issue with the majority’s finding that ‘the legislative intent of SORA is not to punish.’ Second, I object to the majority’s adoption and application of the ‘clearest proof’ burden in weighing whether the seven Mendoza-Martinez factors demonstrate the punitive effects of the statute. Third, I disagree with the majority’s conclusion that the seven Mendoza-Martinez factors fail to demonstrate that the overall effects of the statute are so punitive as to negate any legislative intent to create a civil regulatory scheme.”
Combs began his opinion with more than 10 pages analyzing the legislative history of Oklahoma’s sex offender registry laws since its creation in 1989. After the first sex offender registry statute was signed into law by Gov. Henry Bellmon, the Legislature has amended the law numerous times while codifying its requirements in several different titles, from “crimes” to “motor vehicles.” In addition to the statutes, Combs examined the legislation’s authors’ press releases and public comments on sex offender registry requirements. Among the bills examined by Combs was 2002’s SB 987, which would have allowed for the chemical castration of some sex offenders but for a veto by Gov. Frank Keating.
After analyzing decades of legislative history, Combs concluded the Legislature’s intent when passing the laws has clearly been punitive.
“The 2003 and 2006 amendments concerning residency restrictions in Section 590 of SORA were always passed in tandem with the safety zone laws in section 1125 of the penal code and with numerous other sex offender provisions that clearly demonstrate the Legislature’s punitive intent,” Combs wrote. “A review of the legislators’ press releases and quips for the newspapers only confirms that notion, as one reads about ‘the legislature’s fight to protect the public from sexual predators’; ‘wag[ing] the war against sex crimes’; ‘send[ing] a clear message to child predators in our state (…) [that] we will find you, we will prosecute you, and we will put you to death’; the need ‘to put these demented criminals behind bars and keep them there for as long as possible’; and the belief that ‘rapists must not be allowed to skirt the requirements of our sex offender registry.’ Reviewing SORA’s residency restrictions in their full context should lead everyone to conclude that the Legislature’s intent was retributive and punitive.”
Combs also objected to his colleagues’ “veiled attempt to overrule one aspect of the Starkey precedent” and insisted the opinion was intended to interpret the Oklahoma Constitution as providing stronger protections than the U.S. Constitution. Combs argued the Starkey majority intentionally adopted the lower “neutral evaluation” burden of proof for recognizing punitive intent while analyzing ex post facto claims, and the court misapplied a higher standard requiring “clear proof” adopted by the U.S. Supreme Court.
“These paragraphs (quoted from Starkey) make it readily apparent that Starkey did adopt a lower burden of proof to provide ‘a neutral framework for determining SORA’s purpose and effects because ‘there [wa]s no clear legislative characterization that SORA is a civil law’ and that the reason for adopting a neutral framework was to provide ex post facto protections beyond those afforded by the federal constitution,” Combs wrote. “The Oklahoma Constitution provides more protection because six justices on this court looked at the debate between the Smith v. Doe majority and Justices (David) Souter and (Ruth Bader) Ginsburg and decided to go with a more robust ex post facto clause that didn’t require ‘clearest proof.’ In other words, the Oklahoma Constitution provides more protection because six justices on this court said so.”
Combs also argued that even if the justices assumed the Legislature’s intent was not punitive, then the seven Mendoza-Martinez factors would favor finding their effect was punitive. Using the lower burden of proof, he found that six of the seven Mendoza-Martinez factors favored a finding the laws were punitive.
“The residency restrictions don’t bear any rational connection to the nonpunitive purpose proffered by the majority and the City of El Reno,” Combs wrote. “Therefore, the residency restrictions are extremely excessive in view of those nonpunitive purposes. Moreover, the residency restrictions impose an affirmative disability and restraint upon sex offenders, bear a strong resemblance to the historical punishment of banishment, only apply to conduct that is already criminal and further the traditional aims of punishment. Although clear proof isn’t necessary, there seems to be clear proof here that the effects of retroactively applying SORA’s residency restrictions are punitive and would outweigh any nonpunitive purposes.”
Combs also raised two policy concerns with the Legislature’s continued ramping up of registration requirements that he said should affect the analysis: Increasing registration requirements causes more offenders to “live off the grid” unregistered, and harsh residency restrictions “actually increase the risk of recidivism.”
With the court narrowing its holding to only the park residency requirement, the justices left the door open for future challenges to the application of other requirements in SORA.
