IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 50

 APRIL TERM, A.D. 2014

April 17, 2014

RONALD S. KAMMERER, JR.,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

No. S-13-0070

Appeal from the District Court of Campbell County

The Honorable Michael N. Deegan, Judge

Representing Appellant:

Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. 

Olson, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. 

Argument by Mr. Morgan.

Representing Appellee:

Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; 

Jeffrey S. Pope, Assistant Attorney General. Argument by Mr. Delicath.

Before KITE, C.J., and HILL, VOIGT*, BURKE, and DAVIS, JJ.

*Justice Voigt retired effective January 3, 2014.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers 

are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 

82002, of any typographical or other formal errors so that correction may be made before final publication in 

the permanent volume.

1

BURKE, Justice.

[¶1] Appellant, Ronald S. Kammerer, Jr., challenges his conviction for failure to 

register as a sex offender, in violation of Wyo. Stat. Ann. § 7-19-302(j) and Wyo. Stat. 

Ann. § 7-19-307(a)(d). He contends that Wyoming’s Sex Offender Registration Act 

(Wyo. Stat. Ann. §§ 7-19-301 through 7-19-307) (“WSORA” or “the Act”) violates the 

prohibitions against ex post facto laws contained in the United States and Wyoming 

Constitutions. We affirm.

ISSUES

[¶2] Appellant presents the following issues:

1. Does Wyoming’s Sex Offender Registration Act violate 

the United States Constitution, Art. 1, § 10, prohibition 

against enacting ex post facto laws?

2. Does Wyoming’s Sex Offender Registration Act violate 

the Wyoming Constitution’s prohibition of ex post facto

laws?

The State presents an additional issue:

1. Did the district court commit plain error by not finding 

that the Wyoming Constitution provides greater protection 

than its federal analog and that the Wyoming Sex 

Offender Registration Act violates that greater protection?

FACTS

[¶3] In 1993, Appellant pled guilty to a second degree sexual assault crime in New 

Jersey. He subsequently moved to Gillette, Wyoming. Appellant’s New Jersey 

conviction required him to register as a sex offender in Wyoming under Wyo. Stat. Ann. 

§ 7-19-302(j) (LexisNexis 2011).

1

In early 2012, the State charged Appellant with one 

 

1 The statute provides, in relevant part, as follows:

(j) For an offender convicted of a violation of W.S. 6-2-201 if the victim 

was a minor, W.S. 6-2-302 or 6-2-303, W.S. 6-2-304(a)(iii) if the victim 

was under fourteen (14) years of age, W.S. 6-2-314(a)(i), W.S. 6-2-

314(a)(ii) and (iii) if the victim was less than thirteen (13) years of age, 

W.S. 6-2-315(a)(ii), W.S. 6-2-315(a)(iii) and (iv) if the victim was less 

than thirteen (13) years of age, W.S. 6-2-316(a)(ii) and (iii), 6-4-402, 18 
2

count of failure to register, in violation of Wyo. Stat. Ann. § 7-19-302(j) and Wyo. Stat. 

Ann. § 7-19-307(a)(d). Before trial, Appellant filed a Motion to Dismiss as Ex Post 

Facto Law, claiming that the Wyoming Sex Offender Registration Act is 

unconstitutional. The district court denied Appellant’s motion.

[¶4] The case proceeded to trial, and Appellant was convicted of failing to register. 

The jury also found that Appellant was subject to an enhanced penalty because he had 

previously been convicted of the crime of failing to register as a sex offender. The 

district court sentenced Appellant to a term of four to seven years imprisonment. This 

timely appeal followed.

STANDARD OF REVIEW

[¶5] Appellant presents a constitutional challenge to Wyoming’s Sex Offender

Registration Act. The question of whether a statute is constitutional is a question of law 

over which this Court exercises de novo review. Smith v. State, 2009 WY 2, ¶ 52, 199 

P.3d 1052, 1067-68 (Wyo. 2009). We presume statutes to be constitutional and resolve 

any doubt in favor of constitutionality. Id., ¶ 52, 199 P.3d at1068.

DISCUSSION

[¶6] In 1994, Wyoming joined the majority of other states in enacting legislation 

relating to sex offender registration. Snyder v. State, 912 P.2d 1127, 1129 (Wyo. 1996). 

By 1996, every State, the District of Columbia, and the Federal Government had enacted 

laws requiring sex offender registration. Smith v. Doe, 538 U.S. 84, 90, 123 S.Ct. 1140, 

1145, 155 L.Ed.2d 164 (2003). 

[¶7] Under Wyoming’s Act, offenders convicted of certain sex offenses must register 

with the county sheriff in their county of residence. Wyo. Stat. Ann. § 7-19-302(a). The 

basic provisions of the Act require the registrant to provide identifying information, 

including the registrant’s name, aliases, address, date and place of birth, social security 

number, place and address of employment, a DNA sample, and any internet identifiers. 

Id. The registrant must also provide the date and place of his conviction, the crime for 

 

U.S.C. § 2245, or an offense in another jurisdiction containing the same 

or similar elements, or arising out of the same or similar facts or 

circumstances as a criminal offense specified in this subsection, an 

attempt or conspiracy to commit any of the offenses specified in this 

subsection, . . . the division shall verify the accuracy of the offender’s 

registered address, and the offender shall report, in person, his current 

address to the sheriff in the county in which the offender resides every 

three (3) months after the date of the initial release or commencement of 

parole.
3

which he was convicted, the age of each victim, the name and address of educational 

institutions at which the registrant is employed or attending school, the license plate 

number and description of his vehicle, and any phone number at which the registrant may 

be reached. Id. Additionally, the registrant must be photographed and fingerprinted. Id. 

If the registrant intends to travel outside the United States, he must inform the county 

sheriff of his plans at least twenty-one days prior to travel. Wyo. Stat. Ann. § 7-19-

302(q). The duty to register continues for the duration of the registrant’s life, but this 

duty may terminate in certain cases upon the registrant’s petition to be relieved from the 

duty to register. Wyo. Stat. Ann. § 7-19-304(a).

[¶8] The Act also establishes a central registry of offenders and makes certain 

identifying information and information relating to the registrant’s offense available to 

the public. Wyo. Stat. Ann. § 7-19-303(a), (c)(iii). The Act requires this information to 

be made available through the internet, and also requires the dissemination of notice of a 

registrant’s status as a sex offender to residential neighbors living within 750 feet of the 

registrant. Wyo. Stat. Ann. § 7-19-303(c)(ii), (iii). A sex offender who fails to comply 

with the Act is subject to criminal prosecution. Wyo. Stat. Ann. § 7-19-307.

[¶9] In his first issue, Appellant contends that Wyoming’s Sex Offender Registration 

Act violates the ex post facto clause of the United States Constitution because it 

retroactively inflicts greater punishment for his crime. The passage of ex post facto laws 

is prohibited by Article 1, § 10 of the United States Constitution and Article 1, § 35 of the 

Wyoming Constitution.

2

 “[A]ny statute . . . which makes more burdensome the 

punishment for a crime, after its commission, . . . is prohibited as ex post facto.” Smith v. 

State, ¶ 55, 199 P.3d at 1068 (quoting Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 

2290, 53 L.Ed.2d 344 (1977)). We have stated that the constitutional prohibition against

ex post facto laws applies only to statutes that impose penalties. Snyder, 912 P.2d at 

1130.

 

2 Those sections provide, in relevant part, as follows:

No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law 

impairing the Obligation of Contracts, or grant any Title of Nobility.

U.S. Const. art. I, § 10.

No ex post facto law, nor any law impairing the obligation of contracts, 

shall ever be made.

Wyo. Const. art. I, § 35.
4

In deciding whether or not a law is penal, this Court has 

generally based its determination upon the purpose of the 

statute. If the statute imposes a disability for the purposes of 

punishment – that is, to reprimand the wrongdoer, to deter 

others, etc., it has been considered penal. But a statute has 

been considered nonpenal if it imposes a disability, not to 

punish, but to accomplish some other legitimate 

governmental purpose. The Court has recognized that any 

statute decreeing some adversity as a consequence of certain 

conduct may have both a penal and a nonpenal effect. The 

controlling nature of such statutes normally depends on the 

evident purpose of the legislature.

Id. (quoting Trop v. Dulles, 356 U.S. 86, 96, 78 S.Ct. 590, 595-96, 2 L.Ed.2d 630 

(1958)). 

[¶10] This is not the first time that a constitutional challenge to Wyoming’s Sex 

Offender Registration Act has been before this Court. In Snyder, the appellant claimed 

the Act was an unconstitutional ex post facto law because it retroactively inflicted 

punishment after his crime was committed. Specifically, the appellant claimed that the 

Act was punitive because (1) it submitted the registrant to police surveillance and lineup 

appearances if a similar crime was committed, (2) the fact of registration itself was 

admissible under the Wyoming Rules of Evidence, and (3) failure to register was 

punishable by imprisonment. Snyder, 912 P.2d at 1130. We began our analysis by 

noting that

The mark of an ex post facto law is the imposition of what 

can fairly be designated punishment for past acts. The 

question in each case where unpleasant consequences are 

brought to bear upon an individual for prior conduct, is 

whether the legislative aim was to punish that individual for 

past activity, or whether the restriction of the individual 

comes about as a relevant incident to a regulation of a present 

situation.

Id. at 1131 (quoting De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1155, 4 

L.Ed.2d 1109 (1960)). In our discussion, we noted that “the Act is unaccompanied by a 

description of its purpose and legislative history does not exist which would assist in 

discerning whether the legislative intent was regulatory or punitive.” Nonetheless, we 

concluded that “The plain reading of the statutory scheme . . . indicates that the 

legislature intended to facilitate law enforcement and protection of children. There was 

no intent to inflict greater punishment.” Snyder, 912 P.2d at 1131. Accordingly, we held 

that the Act “does not inflict greater punishment and does not violate the ex post facto 
5

clause.” Id. 

[¶11] Since its initial passage in 1994, Wyoming’s Sex Offender Registration Act has 

been amended on numerous occasions. Appellant claims that the revisions to WSORA 

are punitive because they require “the use of ‘active’ as well as passive community 

notification,” and because the Act “requires frequent in-person registration, and imposes 

elevated movement and residency restrictions.” Appellant acknowledges that, in Snyder,

we found that amendments to WSORA imposing stricter registration requirements did 

not violate the ex post facto clause of the United States Constitution. He contends, 

however, that the recent amendments “tip the scale and make the current version of 

WSORA more punitive.”

[¶12] Subsequent to our decision in Snyder, the United States Supreme Court, in Smith 

v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 1146, 155 L.Ed.2d 164 (2003), considered 

whether Alaska’s sex offender registration and notification statutes constituted retroactive

punishment forbidden by the ex post facto clause. The statutory scheme at issue in Smith 

v. Doe contained elements similar to those found in the current version of Wyoming’s 

Act. The Alaska law required, among other things, that sex offenders be photographed 

and fingerprinted, and mandated that offenders provide their name, aliases, identifying 

features, address, place of employment, date of birth, conviction information, driver’s 

license number, information about vehicles to which they had access, and postconviction 

treatment history. Id., 538 U.S. at 90, 123 S.Ct. at 1145-46. Much of this information 

was made available to the public. Id., 538 U.S. at 91, 123 S.Ct. at 1146. In cases 

involving an aggravated sex offense or two or more sex offenses, the offender was 

required to register for life and verify the information quarterly. Id., 538 U.S. at 90, 123 

S.Ct. at 1146. The law also required an offender to notify the local police department of 

any changes in residence. Id.

[¶13] The Court set forth the framework for its inquiry as follows:

We must “ascertain whether the legislature meant the statute 

to establish ‘civil’ proceedings.” Kansas v. Hendricks, 521 

U.S. 346, 361, 138 L.Ed.2d 501, 117 S.Ct. 2072 (1997). If the 

intention of the legislature was to impose punishment, that 

ends the inquiry. If, however, the intention was to enact a 

regulatory scheme that is civil and nonpunitive, we must 

further examine whether the statutory scheme is “‘so punitive 

either in purpose or effect as to negate [the State’s] intention’ 

to deem it ‘civil.’” Ibid. (quoting United States v. Ward, 448 

U.S. 242, 248-249, 65 L.Ed.2d 742, 100 S.Ct. 2636 (1980)). 

Because we “ordinarily defer to the legislature’s stated 

intent,” Hendricks, supra, at 361, “‘only the clearest proof’

will suffice to override legislative intent and transform what 
6

has been denominated a civil remedy into a criminal penalty,”

Hudson v. United States, 522 U.S. 93, 100, 139 L.Ed.2d 450, 

118 S.Ct. 488 (1997) (quoting Ward, supra, at 249); see also 

Hendricks, supra, at 361; United States v. Ursery, 518 U.S. 

267, 290, 135 L.Ed.2d 549, 116 S.Ct. 2135 (1996); United 

States v. One Assortment of 89 Firearms, 465 U.S. 354, 365,

79 L.Ed.2d 361, 104 S.Ct. 1099 (1984).

Smith v. Doe, 538 U.S. at 92, 123 S.Ct. at 1146-47. In the first part of its two-step 

inquiry, the Court noted that “As we observed in Hendricks, where we examined an ex 

post facto challenge to a post-incarceration confinement of sex offenders, an imposition 

of restrictive measures on sex offenders adjudged to be dangerous is ‘a legitimate 

nonpunitive governmental objective and has been historically so regarded.’” The Court 

concluded, as it did in Hendricks, that “nothing on the face of the statute suggests that the 

legislature sought to create anything other than a civil . . . scheme designed to protect the 

public from harm.” Smith v. Doe, 538 U.S. at 93, 123 S.Ct. at 1147 (quoting Hendricks, 

521 U.S. at 361, 117 S.Ct. at 2082). 

[¶14] The Court then proceeded to the question of whether the effect of the Alaska 

statute negated the legislature’s intent to impose regulatory, as opposed to punitive, 

sanctions. To answer this question, the Court invoked the factors identified in Kennedy v. 

Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), which the 

Court noted were designed to apply in “various constitutional contexts.” Smith v. Doe, 

538 U.S. at 97, 123 S.Ct. at 1149. The Court stated that the factors most relevant to its

analysis were “whether, in its necessary operation, the regulatory scheme: has been 

regarded in our history and traditions as a punishment; imposes an affirmative disability 

or restraint; promotes the traditional aims of punishment; has a rational connection to a 

nonpunitive purpose; or is excessive with respect to this purpose.”3 Id. After considering 

the relevant factors, the Court concluded that “respondents cannot show, much less by the 

 

3 The Court concluded that the remaining Mendoza-Martinez factors were of “little weight” in the context 

of sex offender registration legislation:

The two remaining Mendoza-Martinez factors – whether the regulation 

comes into play only on a finding of scienter and whether the behavior to 

which it applies is already a crime – are of little weight in this case. The 

regulatory scheme applies only to past conduct, which was, and is, a 

crime. This is a necessary beginning point, for recidivism is the statutory 

concern. The obligations the statute imposes are the responsibility of 

registration, a duty not predicated upon some present or repeated 

violation.

Smith v. Doe, 538 U.S. at 105, 123 S.Ct. at 1154.
7

clearest proof, that the effects of the law negate Alaska’s intention to establish a civil 

regulatory scheme. The Act is nonpunitive, and its retroactive application does not 

violate the Ex Post Facto Clause.” Id., 538 U.S. at 105-06, 123 S.Ct. at 1154. 

Application of the principles articulated in Snyder and Smith to the present case leads us 

similarly to the conclusion that the current version of WSORA does not violate the ex 

post facto clause of the United States Constitution. 

Legislative Intent

[¶15] We begin our analysis by examining the legislature’s intent in enacting the 

amendments to Wyoming’s Sex Offender Registration Act. Our inquiry is whether the 

legislature “indicated either expressly or impliedly a preference” to impose civil or 

criminal sanctions. Smith v. Doe, 538 U.S. at 93, 123 S.Ct. at 1147 (quoting Hudson, 522 

U.S. at 99, 118 S.Ct. at 493). Answering this question is a matter of statutory 

construction. Smith v. Doe, 538 U.S. at 92, 123 S.Ct. at 1147. We look to the “statute’s 

text and its structure to determine the legislative objective.” Id.

[¶16] As noted above, we have previously determined, in Snyder, 912 P.2d at 1131, that 

WSORA is intended to impose regulatory, as opposed to punitive, requirements. We 

affirmed this conclusion in In re JJF v. State, 2006 WY 41, ¶ 25, 132 P.3d 170, 178 

(Wyo. 2006), where we stated that “Wyoming’s [sex offender registration] statutes, like 

others nationwide, are regulatory rather than punitive in purpose.” Appellant contends, 

however, that the amendments to WSORA indicate that the legislature intended to 

impose punishment. Appellant claims that the amendments were enacted in response to 

federal legislation relating to sex offender registration which conditions the receipt of 

federal grants on compliance with the federal standards. As a result, according to 

Appellant, “Wyoming’s enactment of WSORA was for financial gain.” Additionally, 

Appellant notes that the Act is codified within Wyoming’s Criminal Procedure Code, and 

suggests that this fact indicates the law is intended to be punitive.

[¶17] Even if we assume that the Wyoming legislature was “motivated by financial 

gain,” as posited by Appellant, we fail to see how this fact indicates that the legislature

intended to impose punishment. Appellant does not attempt to explain how this fact 

would be indicative of punitive intent. Consequently, we find this argument 

unpersuasive.

[¶18] Appellant acknowledges that “the Supreme Court has noted that criminal 

codification does not itself transform civil laws [into] criminal ones.” Indeed, in Smith v. 

Doe, 538 U.S. at 94-95, 123 S.Ct. at 1148, the Court responded to a similar argument:

Other formal attributes of a legislative enactment, such 

as the manner of its codification or the enforcement 

procedures it establishes, are probative of the legislature’s 
8

intent. See Hendricks, supra, at 361; Hudson, supra, at 103;

89 Firearms, supra, at 363. In this case these factors are open 

to debate. The notification provisions of the Act are codified 

in the State’s “Health, Safety, and Housing Code,” § 18, 

confirming our conclusion that the statute was intended as a 

nonpunitive regulatory measure. Cf. Hendricks, supra, at 361 

(the State’s “objective to create a civil proceeding is 

evidenced by its placement of the Act within the [State’s] 

probate code, instead of the criminal code” (citations 

omitted)). The Act’s registration provisions, however, are 

codified in the State’s criminal procedure code, and so might 

seem to point in the opposite direction. These factors, though, 

are not dispositive. The location and labels of a statutory 

provision do not by themselves transform a civil remedy into 

a criminal one. In 89 Firearms, the Court held a forfeiture 

provision to be a civil sanction even though the authorizing 

statute was in the criminal code. 465 U.S., at 364-365. The 

Court rejected the argument that the placement demonstrated 

Congress’ “intention to create an additional criminal 

sanction,” observing that “both criminal and civil sanctions 

may be labeled ‘penalties.’” Id., at 364, n.6.

The same rationale applies here. . . . The partial 

codification of the Act in the State’s criminal procedure code 

is not sufficient to support a conclusion that the legislative 

intent was punitive.

Likewise, in the present case, we are not persuaded that the legislature’s mere 

codification of WSORA within Wyoming’s Criminal Procedure Code indicates that the 

legislature intended for the statutes to be punitive. WSORA was also codified within the 

Criminal Procedure Code at the time Snyder and In re JJF were decided. That fact, 

however, did not affect our conclusion that the legislature intended to enact a nonpunitive 

regulatory scheme. We find no reason, and Appellant has offered none, to depart from 

our precedent with respect to this issue. We turn, then, to the issue of whether the 

statutory scheme is so punitive as to negate the legislature’s intent to impose a regulatory 

scheme for convicted sex offenders.

Punitive Effect

[¶19] To determine whether the effect of WSORA negates the legislature’s intent to 

create regulatory requirements for sex offenders, we apply the relevant factors set forth in 

Kennedy v. Mendoza-Martinez, as identified in Smith v. Doe. Again, those factors 

evaluate whether the regulatory scheme (1) has been regarded in our history and 
9

traditions as a punishment, (2) imposes an affirmative disability or restraint, (3) promotes 

the traditional aims of punishment, (4) has a rational connection to a nonpunitive 

purpose, or (5) is excessive with respect to this purpose. Smith v. Doe, 538 U.S. at 97, 

123 S.Ct. at 1149. We will address each of these factors in turn. Ultimately, we 

conclude that the effects of the Act do not override the legislature’s intent to enact a 

regulatory scheme for registration of sex offenders. 

(1) Historically regarded as punishment

[¶20] Evaluation of the first Mendoza-Martinez factor is based on the notion that “a 

State that decides to punish an individual is likely to select a means deemed punitive in 

our tradition, so that the public will recognize it as such.” Smith v. Doe, 538 U.S. at 97, 

123 S.Ct. at 1149. Appellant contends “The world wide website dissemination of [an] 

offender’s picture and personal information without any type of restriction or monitoring 

is akin to traditional shaming punishments intended to inflict public disgrace.” Appellant 

also suggests that the Act’s requirement that notice of the offender’s registration be 

delivered to residential neighbors within 750 feet of the offender’s residence is similar to 

the historical punishment of public shaming. Finally, Appellant claims that the Act’s 

reporting provisions are similar to supervised probation or parole. 

[¶21] The Third Circuit Court of Appeals, addressing a challenge to New Jersey’s 

notification scheme for registered sex offenders, which involved an element of risk 

assessment, has distinguished between the State’s public dissemination of personal 

information and the historical punishments of public shaming or banishment:

Nor can we accept the suggested analogy between 

notification’s re-publication of information publicly available 

at the time of a sex offender’s trial and the holding of a 

convicted defendant up to public ridicule. Public shaming, 

humiliation and banishment all involve more than the 

dissemination of information. State dissemination of 

information about a crime and its perpetrators was 

unnecessary in colonial times because all in the colonial 

settlement would have knowledge of these matters. Rather, 

these colonial practices inflicted punishment because they 

either physically held the person up before his or her fellow 

citizens for shaming or physically removed him or her from 

the community.

The “sting” of [New Jersey’s sex offender notification 

scheme] results not from their being publicly displayed for 

ridicule and shaming but rather from the dissemination of 

accurate public record information about their past criminal 
10

activities and a risk assessment by responsible public 

agencies based on that information. This distinction makes a 

substantial difference when one looks for the relevant 

historical understanding of our society. Dissemination of 

information about criminal activity has always held the 

potential for substantial negative consequences for those 

involved in that activity. Dissemination of such information 

in and of itself, however, has never been regarded as 

punishment when done in furtherance of a legitimate 

governmental interest.

When there is probable cause to believe that someone 

has committed a crime, our law has always insisted on public 

indictment, public trial, and public imposition of sentence, all 

of which necessarily entail public dissemination of 

information about the alleged activities of the accused.

. . .

Whenever these state notices are directed to a risk 

posed by individuals in the community, those individuals can 

expect to experience embarrassment and isolation. 

Nevertheless, it is generally recognized that the state has a 

right to issue such warnings and the negative effects are not 

regarded as punishment. Because the closest analogies have 

not historically been regarded as punishment, we conclude 

that historical precedent does not demonstrate an objective 

punitive purpose.

E.B. v. Verniero, 119 F.3d 1077, 1099-1101 (3d Cir. 1997) (see also Femedeer v. Haun, 

227 F.3d 1244, 1251 n.2 (10th Cir. 2000) (noting that “the Third Circuit’s discussion of 

whether notification has historically been regarded as punishment is instructive,” despite 

the fact that New Jersey’s notification scheme contained an element of risk assessment

absent from Utah’s system)). Further, we note that at least one other Circuit Court of 

Appeals has determined that “active” dissemination of an individual’s sex offender status 

is distinguishable from public shaming:

Plaintiffs attempt to distinguish Smith [v. Doe] on the grounds 

that, unlike the Alaska law at issue there, AB 579 requires 

law enforcement agencies actively to provide notice of an 

individual’s sex-offender status in many instances. See AB 

579 § 29(2). We have previously held that a state law which 

included a provision requiring government agencies actively 
11

to notify the public of certain individuals’ sex-offender status 

was not so punitive in effect that it violated the Ex Post Facto 

Clause. Russell [v. Gregoire], 124 F.3d [1079,] 1082, 1091-

92 [(9th Cir. 1997)]. That logic remains sound in the wake of 

Smith. Active dissemination of an individual’s sex offender 

status does not alter the Court’s core reasoning that “stigma 

. . . results not from public display for ridicule and shaming 

but from the dissemination of accurate information about a 

criminal record, most of which is already public.” Smith, 538 

U.S. at 98. Though “humiliation increas[es] in proportion to 

the extent of the publicity,” the “purpose and the principal 

effect of notification are to inform the public for its own 

safety.” Id. at 99.

ACLU v. Masto, 670 F.3d 1046, 1055-56 (9th Cir. 2012). We are in agreement with the 

analysis of these courts. Although dissemination of information relating to a registrant’s 

status as a sex offender may have negative consequences for the registrant, information 

regarding the offense is made public at the time of trial, and its publication under 

WSORA is merely a necessary consequence of the Act’s intent to protect the public from 

harm. Accordingly, we conclude, consistently with the authorities quoted above, that 

WSORA’s publication and notification requirements are not analogous to the historic

punishment of public shaming. 

[¶22] We are also not persuaded that WSORA’s reporting requirements are akin to 

supervised probation or parole. As the Supreme Court explained in Smith v. Doe, 538 

U.S. at 101-102, 123 S.Ct. at 1152, reporting requirements do not subject registrants to 

supervision, and do not prevent registrants from moving where they please:

Probation and supervised release entail a series of mandatory 

conditions and allow the supervising officer to seek the 

revocation of probation or release in case of infraction. See 

generally Johnson v. United States, 529 U.S. 694, 146 

L.Ed.2d 727, 120 S.Ct. 1795 (2000); Griffin v. Wisconsin, 

483 U.S. 868, 97 L.Ed.2d 709, 107 S.Ct. 3164 (1987). By 

contrast, offenders subject to the Alaska statute are free to 

move where they wish and to live and work as other citizens, 

with no supervision. Although registrants must inform the 

authorities after they change their facial features (such as 

growing a beard), borrow a car, or seek psychiatric treatment, 

they are not required to seek permission to do so. A sex 

offender who fails to comply with the reporting requirement 

may be subjected to a criminal prosecution for that failure, 

but any prosecution is a proceeding separate from the 
12

individual’s original offense. Whether other constitutional 

objections can be raised to a mandatory reporting 

requirement, and how those questions might be resolved, are 

concerns beyond the scope of this opinion. It suffices to say 

the registration requirements make a valid regulatory program 

effective and do not impose punitive restraints in violation of 

the Ex Post Facto Clause.

While the reporting provisions of WSORA require registrants to interact periodically 

with law enforcement agencies, those requirements do not subject registrants to 

monitoring similar to that imposed under supervised probation or parole. We conclude 

that this factor does not demonstrate that WSORA has a punitive purpose or effect.

(2) Affirmative disability or restraint

[¶23] Under the second Mendoza-Martinez factor, “we inquire how the effects of the 

Act are felt by those subject to it. If the disability or restraint is minor and indirect, its 

effects are unlikely to be punitive.” Smith v. Doe, 538 U.S. at 99-100, 123 S.Ct. at 1151. 

Appellant contends that WSORA imposes restraints that are “severe and time 

consuming,” noting the Act’s requirements that the offender must report his address in 

person to the county sheriff every three months, report any change in residence, vehicle, 

or employment status within three days, and report an intention to leave the country at 

least twenty-one days prior to travel.

[¶24] Several Circuit Courts of Appeals, addressing the provisions of the federal Sex 

Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901 et seq., have 

found that requiring in-person appearances by the registrant to update personal 

information, and to provide notification of changes in residence, vehicle, and 

employment status, does not impose an affirmative disability. In United States v. Parks, 

698 F.3d 1, 6 (1st Cir. 2012), the First Circuit Court of Appeals noted the regulatory 

justifications for requiring in-person appearances by the registrant: 

To appear in person to update a registration is doubtless more 

inconvenient than doing so by telephone, mail or web entry; 

but it serves the remedial purpose of establishing that the 

individual is in the vicinity and not in some other jurisdiction 

where he may not have registered, confirms identity by 

fingerprints and records the individual’s current appearance.

See also United States v. Under Seal, 709 F.3d 257, 265 (4th Cir. 2013) (“Although 

Appellant is required under SORNA to appear periodically in person to verify his 

information and submit to a photograph, see 42 U.S.C. § 16916, this is not an affirmative 

disability or restraint.”); United States v. W.B.H., 664 F.3d 848, 857 (11th Cir. 2011) 
13

(“Appearing in person may be more inconvenient, but requiring it is not punitive.”). 

Additionally, in Smith v. Doe, 538 U.S. at 100, 123 S.Ct. at 1151, the Supreme Court 

found that Alaska’s law imposed no physical restraint on the registrant and therefore 

constituted a negligible affirmative disability. The Court noted that any negative 

consequences to a registrant’s employment or housing prospects stemmed from the fact 

of the registrant’s conviction, rather than the existence of the registry. Id., 538 U.S. at 

101, 123 S.Ct. at 1151. The Tenth Circuit reached a similar conclusion in Femedeer, 227 

F.3d at 1250, with respect to Utah’s sex offender registration statutes, stating that 

“notification does not by itself prohibit sex offenders from pursuing any vocation or 

avocation available to other members of the public, and we therefore conclude that this 

factor weighs against finding that the statute is punitive in purpose or effect.” 

[¶25] Similar to the Alaska statute at issue in Smith v. Doe, 538 U.S. at 100, 123 S.Ct. at 

1151, the Wyoming Act “does not restrain activities sex offenders may pursue but leaves 

them free to change jobs or residences,” and the Act does not require registrants to seek 

permission before making changes in their employment or residence. Unlike SORNA 

and the Alaska statute, however, Wyoming’s Act requires registrants to provide notice to 

the county sheriff at least twenty-one days prior to traveling outside the country. Wyo. 

Stat. Ann. § 7-19-302(q). Appellant asserts that this provision imposes an affirmative 

restraint because it restricts “spontaneous” travel outside the country. We agree that this 

particular provision imposes a restraint by preventing the registrant from leaving the 

country without first providing notice. Ultimately, however, we conclude that this 

provision does not make the statute “so punitive either in purpose or effect” as to negate 

the legislature’s intent to create a regulatory scheme. Examining the statute in its 

entirety, we cannot conclude that, as a result of the effect of this particular provision,

Appellant has met his “heavy burden” of establishing that the Act is unconstitutional. 

Further, we note that Appellant was not accused of violating this particular provision of 

the Act, nor did he allege that he had made any attempt to travel outside of the United 

States. Rather, Appellant has challenged the Act in its entirety. Even if the 

constitutionality of Wyo. Stat. Ann. § 7-19-302(q), in isolation, were before us, however, 

we would attempt to interpret the Act so as to avoid an unconstitutional result. If we held 

that Wyo. Stat. Ann. § 7-19-302(q) were invalid, we would uphold those portions of the 

Act which could be given effect without the invalid provision. See Rutti v. State, 2004 

WY 133, ¶ 15, 100 P.3d 394, 403 (Wyo. 2004); Wyo. Stat. Ann. § 8-1-103(a)(viii).

4

 

4 Wyo. Stat. Ann. § 8-1-103(a)(viii) provides as follows:

(viii) If any provision of any act enacted by the Wyoming legislature or 

its application to any person or circumstance is held invalid, the 

invalidity does not affect other provisions or applications of the act 

which can be given effect without the invalid provision or application, 

and to this end the provisions of any such act are severable[.]
14

However, Appellant has not presented any argument with respect to the severability of 

Wyo. Stat. Ann. § 7-19-302(q). As a result, we do not address that issue. We conclude 

that the Act’s reporting requirements do not negate the legislature’s intent to create a 

regulatory scheme.

(3) Traditional aims of punishment

[¶26] The traditional aims of punishment identified in Smith v. Doe are retribution and 

deterrence. In that case, the Court stated that although the Alaska statute may have a 

deterrent effect on future crimes, “[a]ny number of governmental programs might deter 

crime without imposing punishment.” Id., 538 U.S. at 102, 123 S.Ct. at 1152. The Court 

noted that “To hold that the mere presence of a deterrent purpose renders such sanctions 

‘criminal’ . . . would severely undermine the Government’s ability to engage in effective 

regulation.” Id. (quoting Hudson, 522 U.S. at 105, 118 S.Ct. at 496). Similar to the 

Supreme Court’s conclusion with respect to Alaska’s sex offender registration statute, we 

find that Wyoming’s Act does not have a punitive effect merely because it may deter the 

commission of sex offenses.

[¶27] Appellant also contends that WSORA’s retributive effect is evidenced by its 

classification of offenders based on their crimes, rather than their likelihood of 

reoffending. According to Appellant, “By classifying offenders based on their conviction 

without rational relation to the likelihood of re-offense, the legislature has both deterred 

future crimes and exacted further retribution for past acts.” This argument, however, was 

also rejected in Smith v. Doe, 538 U.S. at 102, 123 S.Ct. at 1152:

The Act, it is true, differentiates between individuals 

convicted of aggravated or multiple offenses and those 

convicted of a single nonaggravated offense. Alaska Stat. § 

12.63.020(a)(1) (2000). The broad categories, however, and 

the corresponding length of the reporting requirement, are 

reasonably related to the danger of recidivism, and this is 

consistent with the regulatory objective.

As in Smith, we find that the classification of offenders based on their crimes is not 

indicative of retributive intent. This factor does not weigh in favor of a finding that 

WSORA has a punitive effect.

(4) Rational connection to a nonpunitive purpose

[¶28] According to the Supreme Court, whether the challenged regulation is rationally 

connected to a nonpunitive purpose is a “most significant” factor in determining whether 

a statute has punitive effect. Smith v. Doe, 538 U.S. at 102, 123 S.Ct. at 1152. With 

respect to this factor, Appellant asserts that “WSORA’s broad notification and 
15

registration provisions bear no special or rational relationship to any non-punitive 

purpose.” We cannot agree. As noted in Femedeer, 227 F.3d at 1253, the purpose of sex 

offender registration is to “aid in the prevention, avoidance, and investigation of future 

sex offenses.” See also Smith v. Doe, 538 U.S. at 102-03, 123 S.Ct. at 1152 (“the Act has 

a legitimate nonpunitive purpose of ‘public safety, which is advanced by alerting the 

public to the risk of sex offenders in their community.’”). Appellant’s argument ignores 

the readily apparent and widely recognized purposes of sex offender registration statutes. 

We conclude WSORA bears a rational connection to the goal of public safety by 

providing for identification of individuals convicted of sex offenses, and by making that 

information available to law enforcement agencies and the general public. This factor 

weighs heavily in favor of a finding that WSORA is not punitive in purpose or effect.

(5) Excessive in scope

[¶29] The final Mendoza-Martinez factor relevant to our analysis is whether the 

regulatory scheme is excessive with respect to its nonpunitive purpose. As the Supreme 

Court explained in Smith v. Doe, 538 U.S. at 105, 123 S.Ct. at 1154, “The excessiveness 

inquiry of our ex post facto jurisprudence is not an exercise in determining whether the 

legislature has made the best choice possible to address the problem it seeks to remedy. 

The question is whether the regulatory means chosen are reasonable in light of the 

nonpunitive objective.” The Court found that the Alaska statute met this standard after 

noting that “The Ex Post Facto Clause does not preclude a State from making reasonable 

categorical judgments that conviction of specified crimes should entail particular 

regulatory consequences.” Id. at 103, 123 S.Ct. at 1153. 

[¶30] Appellant contends the Act’s mandatory notification requirement, as well as the 

publication of a registrant’s personal information on the internet, is excessive in relation

to the Act’s nonpunitive purpose. Appellant cites to the Alaska Supreme Court’s 

decision in Doe v. State, 189 P.3d 999 (Alaska 2008), which addressed a state 

constitutional challenge to Alaska’s sex offender registration statute following the 

Supreme Court’s decision in Smith v. Doe. In that case, the Alaska Supreme Court 

determined that Alaska’s statute was excessive in relation to the state’s interest in public 

safety before ultimately concluding that the punitive effect of the statute outweighed its 

nonpunitive purpose. Id., 189 P.3d at 1018. In finding that the Alaska statute was 

excessive, the Court relied heavily on the fact that the statute provided “no mechanism by 

which a registered sex offender can petition the state or a court for relief from the 

obligations of continued registration and disclosure.” Id. at 1017. The Court also noted 

that the statute was excessive because it applied only to those persons convicted of 

specified offenses, and excluded individuals “who may have committed the same acts 

and may pose threats to the public but who avoided conviction by pleading to a lesser 

charge or whose convictions were overturned.” Id.

[¶31] The present case is distinguishable from Doe v. State. In contrast to the Alaska 
16

statute at issue in that case, Wyoming’s Act expressly provides a mechanism by which 

certain categories of registered sex offenders can petition the district court for relief from 

the duty to register. Wyo. Stat. Ann. § 7-19-304(a)(i), (ii). Specifically, Wyo. Stat. Ann. 

§ 7-19-304(d) provides:

(d) An offender seeking a reduction in his registration period 

as provided in paragraph (a)(i) or (ii) of this section shall 

demonstrate to the court that he has maintained a clean record 

by:

(i) Having no conviction of any offense for which 

imprisonment for more than one (1) year may be 

imposed;

(ii) Having no conviction of any sex offense;

(iii) Successfully completing any periods of supervised 

release, probation and parole; and

(iv) Successfully completing any sex offender 

treatment previously ordered by the trial court or by 

his probation or parole agent.

Further, we are not persuaded that Wyoming’s Act is excessive because it applies only to 

persons convicted of sex offenses, and not to those individuals who plead to a lesser 

charge, whose convictions are overturned, or whose cases are disposed of pursuant to 

Wyo. Stat. Ann. § 7-13-301. Wyo. Stat. Ann. § 7-19-301(a)(iii). The legislature’s 

identification of individuals convicted of the specified sex offenses constitutes a 

reasonable basis for determining potential risks to the public, and does not demonstrate 

that the regulatory scheme is “excessive.” We conclude that, in light of the substantial 

interests at stake, WSORA’s requirements constitute a reasonable method of achieving 

the goal of public safety. 

[¶32] Ultimately, we conclude that each of the Mendoza-Martinez factors weighs in 

favor of a finding that WSORA imposes only a regulatory burden on convicted sex 

offenders. The effects of the Act do not negate the legislature’s intent to impose a

regulatory scheme under WSORA. Accordingly, we hold, consistent with our decision in 

Snyder, that the Act does not violate the ex post facto clause of the United States 

Constitution.

Wyoming Constitution

[¶33] In Appellant’s second issue, he claims the Act violates the ex post facto clause of 
17

the Wyoming Constitution. According to Appellant, the Wyoming Constitution provides 

“greater protection” against the passage of ex post facto laws than the United States 

Constitution. The State responds that, because Appellant did not raise this issue below, 

we should review for plain error. Under its plain error analysis, the State contends that

there is no unequivocal rule of law in Wyoming indicating that the Wyoming 

Constitution provides greater protection than the United States Constitution in prohibiting 

ex post facto laws.

[¶34] We agree with the State. Both constitutions clearly prohibit the passage of ex post 

facto laws. Consequently, in order to find that the Wyoming Constitution provides 

“greater” protection, we would be forced to conclude that Wyoming’s definition of an ex 

post facto law, as applied to this case, is broader than the definition of that term as it is 

used in the United States Constitution. We have no reason to draw such a conclusion, 

and Appellant has provided no cogent argument or persuasive authority to support a 

claim that Wyoming’s definition of an ex post facto law is broader than the federal 

definition. To the contrary, we expressly adopted the Supreme Court’s definition of an ex 

post facto law, as one “which makes more burdensome the punishment for a crime, after 

its commission,” in Smith v. State, ¶ 55, 199 P.3d at 1068. Accordingly, we find no merit 

in Appellant’s claim that the Wyoming Constitution provides greater protection against 

ex post facto laws than its federal counterpart.

[¶35] Affirmed.