State v. Burr7/29/1999
r now as a sexual offender is unconstitutional because it is retroactive and is ex post facto punishment.
[ ] Whether a statute is unconstitutional is a question of law, and the statute will be upheld unless its challenger demonstrates the statute's unconstitutionality. Best Products Co., Inc. v. Spaeth, 461 N.W.2d 91, 96 (N.D. 1990). An act of the legislature is presumed to be correct, valid, and constitutional, and any doubt about its constitutionality must, where possible, be resolved in favor of its validity. Southern Valley Grain Dealers Ass'n v. Board of County Comm'rs of Richland County, 257 N.W.2d 425, 434 (N.D. 1977). A party raising a constitutional challenge should bring up his "heavy artillery" or forego the attack entirely. State v. Harmon, 1997 ND 233, 33, 575 N.W.2d 635 (on petition for rehearing); Southern Valley Grain Dealers Ass'n, at 434. Because this is a question of law, it is fully reviewable on appeal. Moran v. North Dakota Dep't of Transp., 543 N.W.2d 767, 769 (N.D. 1996).
A.
[ ] North Dakota's sexual offender registration statute provides, in part:
"3. After a person has pled guilty to or been found guilty of a crime against a child or an attempted crime against a child, or after a person has pled guilty or been found guilty as a sexual offender, the court shall impose, in addition to any penalty provided by law, a requirement that the person register, within ten days of coming into a county in which the person resides or is temporarily domiciled, with the chief of police of the city or the sheriff of the county if the person resides in an area other than a city. The court shall require a person to register by stating this requirement on the court records."
A person must also register if that person:
"a. Is incarcerated or is on probation or parole on August 1, 1995, for a crime against a child or as a sexual offender;"
b. Has pled guilty or nolo contendere to, or been found guilty of, an offense in a court of another state or the federal government equivalent to those offenses set forth in subdivisions a and c of subsection 1; or"
"c. Has pled guilty to or been found guilty of a crime against a child or as a sexual offender within ten years prior to August 1, 1995." N.D.C.C. § 12.1-32-15(3).
Burr argues requiring him to register under this section violates due process and is an ex post facto law. See U.S. Const. art. 1, sec. 10; N.D. Const. art. I, sec. 18.
This Court has defined an ex post facto law:
"1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal ; and punishes such action. 2. Every law that aggravates a crime, or makes it greater than it was, when committed. 3. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4. Every law that alters the legal rules of evidence and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender." State v. Jensen, 333 N.W.2d 686, 693-94 (N.D. 1983) (quoting State v. Pleason, 218 N.W. 154, 155 (N.D. 1928) (quoting Calder v. Bull, 1 U.S. 269, 273 (1798))).
No statute can be an ex post facto law prohibited by the United States Constitution unless it makes previously legal conduct criminal or increases the punishment for an existing crime. Dobbert v. Florida, 432 U.S. 282, 293 (1977) (citing Hopt v. Utah, 110 U.S. 574 (1884)).
[ ] The legislature is free to apply statutes retroactively unless doing so would result in ex post facto application. State v. Cummings, 38
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