Alaska’s Sex Offender Registration Law is Punitive, Prohibiting Ex Post Facto Application

The Alaska Supreme Court held its previous decision that held the Alaska Sex Offender Registration Act (ASORA) violates the Ex Post Facto Clause of the Alaska Constitution in binding precedent. The ruling also established that a rule change that holds two-for-one majority decisions are not binding does not have retroactive effect.

Two John Doe plaintiffs who were subject to ASORA for 15 years under the original promulgation of ASORA sued, alleging subsequent amendments to ASORA that increased their reporting requirements and the amount of information they must provide violated Ex Post Facto. The amendments increased their reporting from annual to quarterly and subjected them to lifetime registration.

The Superior Court found that Doe v. State, 189 P. 3d 999 (Alaska 2008) had already held ASORA was punitive. Thus, “[i]f ASORA is punitive in effect, any extension of ASORA’s registration frequency and period increases that punishment and ‘makes more burdensome the punishment for a crime.’” While it found an increase in the registration period and re-registration frequency violative of the Ex Post Facto Clause, it found the administrative amendments that require those subject to ASORA to provide email addresses, instant messaging addresses, and other internet communication addresses to be lawful.

The Alaska Supreme Court agreed with that finding. To do so, it had to address the State’s argument that the Court’s amendment of Appellate Rule 106(b) prohibited Doe from having precedential effect. That rule provides that “[i]n an appeal that is decided with only three of five supreme court justices participating, any issue or point on appeal that the court decides by a two-to-one vote is decided for purposes of that appeal, and shall not have precedential effect.” That rule went into effect on November 10, 2010, more than two years after Doe was decided.

The rule, the Court held, is substantive in nature. It said that to retroactively remove the precedential effect of two-to-one decisions “would eliminate the rights created by those decisions.” Elimination of the precedential value of, for example, Doe, “would leave individuals convicted of sex offenses before the date that the legislature amended ASORA unsure about whether and for how long they must register as sex offenders.”

The Court held that Appellate Rule 106(b) is not retroactive and that all decisions issued prior to that rule becoming effective have precedential effect. As such, it affirmed the grant of summary judgment to the Does. See: State v. Doe A., 297 P.3d 885 (Alaska 2013).

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