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State v. Burr7/29/1999
mination provisions are unconstitutional as applied to Burr. But none of the cases cited by the Dissent support that analysis. Under the laws and cases providing for "tiers" or levels of dissemination, Burr-related information would appear to be subject to full dissemination because Burr was convicted as an adult, violent sex offender. See Verniero, 119 F.3d at 1083; Russell, 124 F.3d at 1082. See also N.J. Stat. Ann. § 2C:7-8c(3); Wash. Rev. Code § 4.24.550(1-8). Even if an argument could be made that our statute could be unconstitutional as applied to some, there is no credible argument that it is unconstitutional as applied to Burr.
[ ] If the issue of dissemination were before us, we would interpret the statute to avoid an unconstitutional result. E.g., McCabe v. North Dakota Worker's Compensation, 1997 ND 145, 10, 567 N.W.2d 201 (citations omitted). If we could not, we would strike down only the provision that was constitutionally infirm. See Capital Elec. Co-op., Inc. v. Public Service Com'n of North Dakota, 534 N.W.2d 587, 591 (N.D. 1995) (unconstitutional provision is severable from remainder of the statute); State v. Rathjen, 455 N.W.2d 845, 849 (N.D. 1990) (unconstitutional provision of a statute may be severed and the remainder of the statute remains in effect). Burr would still be guilty of violating the constitutionally valid registration requirements.
V.
[ ] After examining the legislative history of N.D.C.C. § 12.1-32-15(3) and applying the Mendoza-Martinez factors, we conclude the registration requirement is regulatory in nature and was designed to aid law enforcement agencies by requiring sex offenders to register with local law enforcement and notify them when they move. The retrospective application of the statute to Burr does not violate the ex post facto clause of the Unites States or North Dakota Constitutions. The purpose of the registration requirement is protection of a legitimate public interest, which imposes a collateral consequence upon conviction, not added punishment.
[ ] The judgment of the district court is affirmed.
[ ] Dale V. Sandstrom William A. Neumann Gerald W. VandeWalle, C.J. Kapsner, Justice, Dissenting.
[ ] Section 12.1-32-15 should serve the beneficial purposes ascribed to it by the majority. The fact, however, that a law may serve a good purpose does not alone satisfy the inquiry of whether the statute violates the ex post facto clauses of the United States and North Dakota constitutions. Under the circumstances of this case, I would hold that the application to Burr of subsections 3(c) and 11 violates both ex post facto clauses. I would hold so because the statute applied to Burr was retroactive, excessive in its scope, unrestrained in the manner that information under the statute could be disseminated, and imposed a significant restraint on his liberty not authorized as a punishment at the time the crime was committed. The enactment of these subsections occurred after Burr had fully served his sentence, completed his probation and been released from supervision for the crime of sexual imposition.
[ ] The retroactive application of a sanction requires analysis under the ex post facto clause, which embodies a principle considered so fundamental to the Framers that it was singled out explicitly as a direct restraint on the legislative autonomy of the States.
As James Madison observed:
"`Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to som
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