MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2013 ME 24

Docket: Ken-11-454

Argued: September 13, 2012

Decided: March 5, 2013

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and 

JABAR, JJ.

Majority: SAUFLEY, C.J., and LEVY, MEAD, and GORMAN, JJ.

Dissent: ALEXANDER, SILVER, and JABAR, JJ.

JOHN DOE I et al.

v.

ROBERT WILLIAMS et al.

MEAD, J.

[¶1] John Does I, III, IV, V, VI, VII, VIII, X, XIII, XVI, XVIII, XXIV, and 

XLIII, joined by John Does XIX1 and XXIII, appeal from a summary judgment 

entered in the Superior Court (Kennebec County, Murphy, J.) in favor of numerous 

State officials on the parties’ cross-motions for summary judgment. The Does 

challenge the constitutionality of Maine’s Sex Offender Registration and 

Notification Act of 1999 (SORNA of 1999), 34-A M.R.S. §§ 11201-11256 (2012).

We affirm the trial court’s judgment, concluding that SORNA of 1999 as amended 

 1

 John Doe XIX was originally John Doe XVIII, but the trial court changed his pseudonym because it 

was already assigned to another John Doe.
2

following our decision in State v. Letalien, 2009 ME 130, 985 A.2d 4, does not 

violate the constitutional rights of the litigants before us.

I. BACKGROUND2

[¶2] John Doe I was previously before us in Doe v. District Attorney, 

2007 ME 139, 932 A.2d 552. John Doe I pleaded guilty to and was convicted of 

unlawful sexual contact with a family member, id. ¶ 2, and in 1985 was sentenced 

to five years’ imprisonment with all but sixty days suspended and two years’

probation. He has not been convicted of any sex offenses since.

[¶3] In 2005, the Legislature amended SORNA of 1999 to apply 

retroactively to all sex offenders sentenced on or after January 1, 1982. P.L. 2005, 

ch. 423, § 1 (effective Sept. 17, 2005) (codified at 34-A M.R.S. § 11202(1)

(2012)); see Doe, 2007 ME 139, ¶ 14, 932 A.2d 552. John Doe I sued several 

State officials in their official capacities, arguing that the retroactive application of 

SORNA of 1999 violated his rights to procedural and substantive due process, 

equal protection, and a civil jury trial, pursuant to the Maine and United States 

Constitutions. Doe, 2007 ME 139, ¶ 5, 932 A.2d 552. Upon the State officials’ 

motion to dismiss, the Superior Court (Kennebec County, Studstrup, J.) dismissed 

 2 Doe v. District Attorney, 2007 ME 139, ¶¶ 10-19, 932 A.2d 552, and State v. Letalien, 

2009 ME 130, ¶¶ 4-12, 985 A.2d 4, provide a detailed history of sex offender laws in Maine. The 

background we provide here focuses on the factual and procedural history of the litigants and the 

amendments to SORNA of 1999 after Letalien.
3

John Doe I’s complaint for failure to state a claim upon which relief could be 

granted. Id. ¶ 1. John Doe I appealed, and we concluded that (1) further factual 

development was required to determine whether SORNA of 1999 was an 

unconstitutional ex post facto law3 as applied to him,

4 and (2) he should not have 

been foreclosed from pursuing his other theories of relief. Id. ¶¶ 1, 36-37. We

then remanded the case to the trial court for further proceedings on those issues. 

Id. ¶ 37. On remand, John Doe I’s case was consolidated with cases brought by 

other convicted sex offenders who were also challenging the retroactive 

application of SORNA of 1999.

[¶4] In 2009, the Legislature created an exception from the duty to register 

for sex offenders meeting certain criteria who were sentenced on or after 

January 1, 1982, and before June 30, 1992. P.L. 2009, ch. 365, § B-3 (effective 

Sept. 12, 2009) (codified at 34-A M.R.S. § 11202-A(1) (2009)).5 Sex offenders 

fall within the exception if, among other criteria, their underlying convictions did 

not include more than one Class A sex offense or sexually violent offense, they had 

 3

 Although John Doe I did not assert an ex post facto violation, the Superior Court treated his 

procedural due process claim as an ex post facto claim. Doe, 2007 ME 139, ¶¶ 1, 8, 932 A.2d 552.

4 We later held in Letalien that “[f]or ex post facto purposes, SORNA of 1999 is properly evaluated 

on its face” rather than by examining its application to any given individual. 2009 ME 130, ¶ 34, 

985 A.2d 4.

5

 Title 34-A M.R.S. § 11202-A (2009) was amended after Letalien, 2009 ME 130, 985 A.2d 4, and 

will be discussed in detail later in this opinion. See P.L. 2009, ch. 570 (effective Mar. 30, 2010) (codified 

at 34-A M.R.S. §§ 11202-A, 11222, 11225-A (2012)).
4

no prior sex offense convictions, and they had no subsequent convictions for 

crimes punishable by imprisonment of one year or more. 34-A M.R.S. 

§ 11202-A(1)(A)-(F). Because of the newly enacted exception, many of the John 

Does became eligible for relief from the duty to register and withdrew from the 

litigation. Some Does who were eligible for relief, however, chose to continue

with the litigation along with the Does who were ineligible for relief.

[¶5] We decided Letalien shortly after 34-A M.R.S. § 11202-A(1) became 

effective. Pursuant to the Sex Offender Registration Act of 1995, Letalien’s 

sentence included a requirement that he register for fifteen years on the State’s sex 

offender registry; the sentence provided that after five years Letalien could seek a 

waiver “upon a finding that [he] ‘ha[d] shown a reasonable likelihood that 

registration is no longer necessary and waiver of the registration requirement is 

appropriate.’” Letalien, 2009 ME 130, ¶ 5, 985 A.2d 4 (quoting 34-A M.R.S.A 

§ 11121(6)(C) (Supp. 1996)). While Letalien was on probation, the Legislature 

enacted SORNA of 1999, which required him to register for life, prevented him 

from seeking a waiver, and established additional reporting requirements. Id.

¶¶ 6-8 (citing P.L. 1999, ch. 437, § 2 (effective Sept. 18, 1999) (codified at 

34-A M.R.S.A. §§ 11201-11252 (Pamph. 1999))). Letalien challenged SORNA of 

1999 as unconstitutional under the Ex Post Facto Clauses of the United States and 

Maine Constitutions. Id. ¶ 1. We concluded that SORNA of 1999 “impose[d] an 
5

ex post facto punishment as to offenders sentenced in the years before the effective 

date of [the statute] for whom registration was a required part of their sentence and 

who were subsequently made subject to the more burdensome requirements.” Id.

[¶6] In response to the Letalien decision, the Legislature amended SORNA 

of 1999 by enacting P.L. 2009, ch. 570 (effective Mar. 30, 2010) (codified at 

34-A M.R.S. §§ 11202-A, 11222, 11225-A (2012)). The amendments extended

the exception from registration provided by P.L. 2009, ch. 365, § B-3, making it 

available to qualifying offenders sentenced through September 18, 1999, the 

effective date of SORNA of 1999.

6

 See P.L. 2004, ch. 570, § 1. The amendments 

also changed the reporting requirements for offenders’ registration information, 

such as residence and place of employment. P.L. 2004, ch. 570, § 4. Ten-year 

registrants are now subject to annual verification in writing and in-person 

verification once every five years. 34-A M.R.S. § 11222(4-A). Lifetime 

registrants are now subject to quarterly verification in writing and in-person 

verification once every five years. Id. § 11222(4-B). Additionally, if a law 

enforcement agency with jurisdiction over a registrant or the State Bureau of 

Identification has “reason to believe the [registrant’s] appearance has changed 

 6

 None of the Does were removed from the registry as a result of the latest amendments in P.L. 2009, 

ch. 570 (effective Mar. 30, 2010) (codified at 34-A M.R.S. §§ 11202-A, 11222, 11225-A). Instead, they 

were removed as a result of the enactment of P.L. 2009, ch. 365, § B-3 (effective Sept. 12, 2009) 

(codified at 34-A M.R.S. § 11202-A(1) (2009)), which allowed Does meeting certain criteria to be 

removed from the registry if they were convicted between January 1, 1982 and September 18, 1999.
6

significantly,” the agency or Bureau may instruct the registrant to appear in person 

with a current photograph or to allow a new photograph to be taken, or may 

instruct the registrant to submit a new photograph without appearing in person. Id.

§ 11222(4-A)(C)(1)-(2), (4-B)(C)(1)-(2).

[¶7] John Does I, IV, V,7 VI, VIII, and XVI were initially required to 

register, but successfully petitioned to be removed. John Doe XXIV was also 

required to register, but he obtained a temporary restraining order preventing his 

information from being publically posted; he later successfully petitioned for 

removal from the registry. John Does VII, XIII, and XVIII obtained temporary 

restraining orders relieving them from registering, and they were also statutorily 

relieved of the registration requirement. John Does III, X, XIX, XXIII, and XLIII8

remain on the registry and have viable claims.

[¶8] The Does and State defendants filed cross-motions for summary 

judgment. The trial court issued its decision on the cross-motions on 

August 18, 2011, denying the Does’ motion on all of their claims, and granting the 

State defendants’ motion for summary judgment. The court concluded that the 

 7

 John Doe V was removed from the registry after the parties submitted their briefs, but prior to oral 

argument.

8

 John Doe XLIII is not currently on the registry because he obtained a temporary restraining order, 

but he is ineligible to be relieved from the registration requirement because he does not meet the 

requirements of 34-A M.R.S. § 11202-A(1)(C).
7

cases of the Does who successfully petitioned to be relieved from the duty to 

register were moot, and that SORNA of 1999 as amended after Letalien was 

constitutional. The court also denied the Does’ motion for attorney fees.

[¶9] The Does make numerous claims on appeal, namely that (A) the claims 

of the John Does who are no longer required to register as sex offenders are not 

moot; (B) SORNA of 1999 is an unconstitutional ex post facto law; (C) SORNA of 

1999 violates article I, section 1 of the Maine Constitution; (D) SORNA of 1999 

violates their procedural due process rights; (E) SORNA of 1999 violates their 

substantive due process rights; (F) SORNA of 1999 violates the Equal Protection 

Clauses of the Maine and United States Constitutions; (G) SORNA of 1999 

violates the Maine Civil Rights Act (MCRA), 5 M.R.S. §§ 4681-4685 (2012); 

(H) SORNA of 1999 violates 42 U.S.C.S. § 1983 (Lexis 2012); (I) summary 

judgment was improperly granted; and (J) they are entitled to an award of attorney 

fees.

II. STANDARD OF REVIEW

[¶10] This case comes before us on a grant of summary judgment in favor 

of the State defendants, which we review de novo and will affirm “if the record 

reflects that there is no genuine issue of material fact and the movant is entitled to 

a judgment as a matter of law.” Levesque v. Androscoggin Cnty., 2012 ME 114, 

¶ 5, 56 A.3d 1227 (quotation marks omitted). Because we find that there are no 
8

genuine issues of material facts in dispute, we evaluate whether the State 

defendants are entitled to a judgment as a matter of law. Summary judgment is 

properly granted when “the plaintiff fails to establish a prima facie case for each 

element of [his] cause of action.” Id. (quotation marks omitted).

[¶11] The Does’ arguments based on procedural and substantive due 

process, equal protection, and the Ex Post Facto Clause challenge the 

constitutionality of SORNA of 1999. Accordingly, the Does have “the burden of 

establishing [the statute’s] infirmity.” See Letalien, 2009 ME 130, ¶ 15, 

985 A.2d 4 (quotation marks omitted). We review challenges to the validity of

statutes de novo. Id. We presume that the statute is constitutional, id., and must 

“avoid an unconstitutional construction of a statute if a reasonable interpretation of 

the statute would satisfy constitutional requirements,” Bagley v. Raymond Sch. 

Dep’t, 1999 ME 60, ¶ 14, 728 A.2d 127 (quotation marks omitted).

III. DISCUSSION

[¶12] We consider the Does’ challenges in the order the Does argue them.

A. Justiciability

[¶13] The Superior Court determined that the claims of the Does who had 

been removed from the registry are moot because the court could not provide them 

any real or effective relief. These Does argue that their claims are not moot 

because (1) they will be subject to the registry if they commit future crimes or 
9

move to a different state, (2) their claims fit within the exceptions to the mootness 

doctrine, and (3) the court can retain jurisdiction in order to award costs and 

attorney fees.

1. Technical Mootness

[¶14] We review de novo the trial court’s determination of mootness. 

McGettigan v. Town of Freeport, 2012 ME 28, ¶ 10, 39 A.3d 48. “An issue is 

moot when there is no real and substantial controversy, admitting of specific relief 

through a judgment of conclusive character.” Id. (quotation marks omitted). In 

analyzing whether a case is moot, “we examine whether there remain sufficient 

practical effects flowing from the resolution of the litigation to justify the 

application of limited judicial resources.” Id. (quotation marks omitted).

[¶15] The Does’ first argument, that their future conduct may subject them 

to registration in the future, is insufficient to constitute a “real and substantial 

controversy.” See id. For a controversy to be justiciable it must declare rights 

“upon the existing state of facts and not upon a state of facts that may or may not 

arise in the future.” See Madore v. Me. Land Use Regulation Comm’n, 

1998 ME 178, ¶ 7, 715 A.2d 157 (quotation marks omitted). Here, the Does have 

alleged only facts that may or may not occur in the future, and thus their claims are

moot.
10

[¶16] Additionally, the Does have been relieved of the duty to register, the 

crux of the litigation. See, e.g., Bennett v. State, 289 A.2d 28, 28, 32 (Me. 1972) 

(holding that the expiration of defendant’s sentence rendered his habeas corpus 

petition moot); State v. Irish, 551 A.2d 860, 861-62 (Me. 1988) (holding that the 

defendant’s constitutional challenge to the revocation of his intensive supervision 

was moot because he had been released from institutional confinement).

[¶17] Further, because we conclude that the Does are not entitled to an 

award of their fees and costs, there is no need for the trial court to retain 

jurisdiction over their claim.

[¶18] For these reasons, the claims of Does I, IV, V, VI, VII, VIII, XIII, 

XVI, XVIII, and XXIV, who have been removed from the registry, no longer have 

controversial vitality and are therefore moot unless an exception applies.

2. Exceptions to Mootness

[¶19] The Does’ claims also do not fit within the exceptions to the mootness

doctrine. We will consider an appeal that is otherwise moot if the appellant can 

show that

(1) sufficient collateral consequences will result from the 

determination of the questions presented so as to justify relief; (2) the 

appeal contains questions of great public concern that, in the interest 

of providing future guidance to the bar and the public, we may 

address; or (3) the issues are capable of repetition but evade review 

because of their fleeting or determinate nature.
11

Anthem Health Plans of Me., Inc. v. Superintendent of Ins., 2011 ME 48, ¶ 8, 

18 A.3d 824 (quotation marks omitted).

[¶20] Here, the collateral consequences exception is unavailable. The Does 

argue that their registration status may be affected if they commit another crime or 

move to another state. The collateral consequences exception will not apply if the 

appellant fails to “demonstrate that a decision on the merits of the appeal will have 

more than conjectural and insubstantial consequences in the future.” Sordyl v. 

Sordyl, 1997 ME 87, ¶ 6, 692 A.2d 1386 (quotation marks omitted). These 

consequences to the Does’ registration status that may or may not transpire in the 

future and which are entirely dependent on the Does’ own actions do not fall under 

the collateral consequences exception. Additionally, the Does’ argument that their 

claims may have a potential impact on federal funding of Maine law enforcement 

is too tenuous and uncertain to be a collateral consequence.

[¶21] The two remaining exceptions to mootness, for issues of great public 

concern and issues capable of repetition, are also unavailable to the Does who have 

been removed from the registry. Although it is true that the application of SORNA

of 1999 is an issue of great public concern that is capable of repetition, the issue 

will not evade review because the cases of Does III, X, XIX, XXIII, and XLIII, 

who remain on the registry, are decided today. Therefore, the claims of the Does

who had been removed from the registry are moot.
12

B. Ex Post Facto Analysis

[¶22] The remaining Does argue that SORNA of 1999 as amended after 

Letalien is an unconstitutional ex post facto law. The trial court concluded that the 

Does failed to establish by the clearest proof that SORNA of 1999 is punitive.

[¶23] Both the United States and Maine Constitutions prohibit the 

enactment of ex post facto laws. U.S. Const. art. I, § 10, cl. 1 (“No State shall . . . 

pass any . . . ex post facto Law . . . .”); Me. Const. art. I, § 11 (“The Legislature 

shall pass no . . . ex post facto law . . . .”). We have explained that the 

Ex Post Facto Clauses of the two constitutions “are interpreted similarly and are 

coextensive.” Letalien, 2009 ME 130, ¶ 25, 985 A.2d 4. A statute violates the 

Ex Post Facto Clauses if it “makes more burdensome the punishment for a crime 

after it has been committed.” Id.

[¶24] In making that determination, we employ the two-step “intent-effects 

test,” in which we first analyze the Legislature’s intent in enacting the statute. See

Smith v. Doe, 538 U.S. 84, 92 (2003); Letalien, 2009 ME 130, ¶ 29, 985 A.2d 4. If 

we determine that the intent of the statute is civil in nature, we then analyze the 

statute’s effects to determine whether the effects are so punitive that they 

overcome the Legislature’s civil intent. Smith v. Doe, 538 U.S. 84, 92 (2003); 

Letalien, 2009 ME 130, ¶ 29, 985 A.2d 4. We have already concluded that 

“SORNA was intended to be a civil, regulatory statute” under the intent aspect of 
13

the analysis. Letalien, 2009 ME 130, ¶ 29, 985 A.2d 4. Therefore, our focus is on 

the second step of the inquiry—assessing the statute’s effects to determine if they 

are punitive. See id. ¶ 30.

[¶25] In analyzing the effects of SORNA of 1999, we consider the seven 

factors we discussed in Letalien, commonly referred to as the Mendoza-Martinez

factors. Reformulated as questions, the seven factors are (1) does the sanction 

involve an affirmative disability or restraint?, (2) has the sanction been historically 

regarded as punishment?, (3) is the sanction imposed only upon a finding of 

scienter?, (4) does the operation of the sanction promote retribution and 

deterrence?, (5) is the behavior to which it applies already a crime?, (6) is there an 

alternative purpose to which the sanction may rationally be connected?, and (7) is 

the sanction excessive in relation to the alternative purpose?. See Letalien, 

2009 ME 130, ¶ 31, 985 A.2d 4 (quoting Kennedy v. Mendoza-Martinez, 

372 U.S. 144, 168-69 (1963)).

[¶26] In order for us to conclude that SORNA of 1999 is an unconstitutional 

ex post facto law, the Does must, through the Mendoza-Martinez factors,

“demonstrate by the clearest proof that the statute is so punitive in purpose or 

effect as to overcome the Legislature’s civil intent.” See State v. Cosgro, 

2008 ME 64, ¶ 2, 945 A.2d 1221 (quotation marks omitted).
14

[¶27] Letalien is the point of departure for our analysis of the 

constitutionality of SORNA of 1999 under the Ex Post Facto Clauses of the United 

States and Maine Constitutions. In Letalien, we concluded that the statute

impose[d] an ex post facto punishment as to offenders sentenced in 

the years before the effective date of SORNA of 1999 for whom 

registration was a required part of their sentence and who were 

subsequently made subject to the more burdensome requirements of 

SORNA of 1999 after its effective date of September 18, 1999.

2009 ME 130, ¶ 1, 985 A.2d 4 (emphasis added).

[¶28] There are numerous factual distinctions between the plaintiff in 

Letalien and Does III, X, XIX, XXIII, and XLIII who are before us today. Unlike 

Letalien, who was required to register as a sex offender as part of his criminal 

sentence, id. ¶ 5, there was no sex offender registration law at the time the Does

were originally sentenced, see Doe, 2007 ME 139, ¶¶ 10, 14, 932 A.2d 552. The

registration requirement of Letalien’s sentence included a waiver provision that

was eliminated in 2001. Letalien, 2009 ME 130, ¶ 8, 985 A.2d 4. In contrast, the 

registration requirement originally imposed on the Does by SORNA of 1999 has 

been alleviated by the enactment of 34-A M.R.S. § 11202-A, which allows sex 

offenders to remove their names from the registry if they fall within the exceptions

created by the statute. Reporting requirements also differ. Letalien was required

to report in person to law enforcement officials every ninety days. Letalien, 

2009 ME 130, ¶ 8, 985 A.2d 4. Pursuant to the current law, ten-year registrants are
15

only required to report annually in writing and in person every five years; lifetime

registrants are required to report quarterly in writing and in person every five

years.9 34-A M.R.S. § 11222(4-A), (4-B).

[¶29] Against that backdrop, we evaluate each of the seven 

Mendoza-Martinez factors in turn.

1. Affirmative Disability or Restraint

[¶30] The first factor requires us to determine whether SORNA of 1999 

imposes an affirmative disability or restraint. We consider “‘how the effects of the 

[a]ct are felt by those subject to it. If the disability or restraint is minor and 

indirect, its effects are unlikely to be punitive.’” Letalien, 2009 ME 130, ¶ 35, 

985 A.2d 4 (alteration in original) (quoting Smith, 538 U.S. at 99-100).

[¶31] In Letalien we held that this factor weighed in favor of finding the 

statute punitive because of the great burden associated with a registrant appearing 

in person every ninety days and being subjected to fingerprinting, photographing,

and verification of residence and employment information. Id. ¶ 37. Since 

Letalien, the burden imposed by the registration requirements of SORNA of 1999

has been significantly reduced. Now ten-year and lifetime registrants are required 

 9

 In addition, registrants are required to report to law enforcement officials when they move or change 

employment, and must update their registrations if they significantly change their appearance. 

34-A M.R.S. § 11222(4-A), (4-B).
16

to appear in person every five years, which is no more onerous than renewing 

one’s driver’s license. See 29-A M.R.S. § 1406(1) (2012) (requiring 

noncommercial license renewal every six years and commercial license renewal 

every five years). Similarly, the burden of reporting in writing annually for

ten-year registrants or quarterly for lifetime registrants is minimal when compared 

to an in-person reporting requirement.

[¶32] The Does argue that it is punitive to require that registrants submit a 

new photograph when a registrant’s appearance has changed significantly. The 

Supreme Court analyzed a similar requirement in Smith, holding that the Alaska 

statute imposed no affirmative disability or restraint because “[a]lthough 

registrants must inform the authorities after they change their facial features (such 

as growing a beard) . . . they are not required to seek permission to do so.” 

538 U.S. at 101; see State v. Haskell, 2001 ME 154, ¶ 15, 784 A.2d 4 (finding no 

affirmative disability or restraint because the “movements and activities [of the 

registrants were] not restricted in any way”).

[¶33] We conclude that SORNA of 1999 imposes no significant restraint or 

disability, and that therefore this factor weighs against finding the statute punitive.

2. Historically Regarded as Punishment

[¶34] The second factor we examine is whether the sex offender registry has 

historically been regarded as punishment. The Does argue that the registry’s 
17

availability on the Internet is punitive because of its stigmatizing effects. The 

Supreme Court found that “[t]he purpose and the principal effect of notification are 

to inform the public for its own safety, not to humiliate the offender. Widespread 

public access is necessary for the efficacy of the scheme, and the attendant 

humiliation is but a collateral consequence of a valid regulation.” 

Smith, 538 U.S. at 99. In Letalien, we concluded that posting the registry on the 

Internet was not punitive “for the reasons articulated by the Supreme Court in 

Smith.” 2009 ME 130, ¶ 38, 985 A.2d 4.

[¶35] However, our analysis of this factor does not end there. “The unique 

history of the development of sex offender registration laws in Maine is integral” 

to our analysis of whether the retroactive application of SORNA of 1999 should be 

regarded as punishment. See Letalien, 2009 ME 130, ¶ 39, 985 A.2d 4. The Sex 

Offender Registration Act of 1991, the original sex offender registration law 

enacted in Maine, and the Sex Offender Registration and Notification Act of 1995, 

which affected Letalien, made registration an “integral part of the sentencing 

process and, thus, the resulting sentence.” Id. ¶¶ 39, 42. SORNA of 1999, on the 

other hand, is not tied to the sentencing process; this is the crucial distinction upon 

which Letalien was based. See id. ¶¶ 1, 39, 60-61. We conclude that this factor 

weighs against finding the statute punitive.
18

3. Scienter

[¶36] The third factor is whether the statute comes into play only on a 

finding of scienter. Because SORNA of 1999 is not triggered on a finding of 

scienter, this factor weighs against finding SORNA punitive. See id. ¶ 44; Haskell, 

2001 ME 154, ¶ 17, 784 A.2d 4.

4. Promote Traditional Aims of Punishment

[¶37] The fourth factor requires us to determine whether SORNA of 1999 

promotes the traditional aims of punishment, specifically, retribution and 

deterrence. The Does argue that SORNA of 1999 is retributive because it imposes 

registration obligations on them for past wrongdoing even though some of them 

have gone decades without reoffending; additionally, they argue that it is a 

deterrent because they are subject to increased supervision by the State and 

increased scrutiny by the public.

[¶38] In considering this factor in Smith, the Supreme Court concluded that 

although the Alaska sex offender registration scheme may deter future crimes, such 

a finding did not warrant a finding that the registration statute was punitive because 

“[a]ny number of governmental programs might deter crime without imposing 

punishment.” 538 U.S. at 102. Further, even though the Alaska registration 

scheme differentiated among individuals based on the extent of their wrongdoing, 
19

the corresponding length of the reporting requirements was “reasonably related to 

the danger of recidivism, and this is consistent with the regulatory objective.” Id.

[¶39] In Letalien, we concluded that given the differences between Smith

and Letalien in the length of registration for certain offenses, the sparse record 

provided “little basis to assess the reasonableness of this widely disparate treatment 

and whether Maine’s requirement of lifetime registration is reasonably related to 

the danger of recidivism.” 2009 ME 130, ¶ 46, 985 A.2d 4.

[¶40] We are unable to determine on this record whether SORNA of 1999 is 

more deterrent in effect than other civil regulatory schemes. Likewise, on the 

record presented we cannot assess whether the registration requirements are 

reasonably related to the danger of recidivism. See id. Thus, we treat this factor as 

neutral. See id.

5. Whether Behavior is Already a Crime

[¶41] The fifth factor we examine is whether the behavior to which SORNA 

of 1999 applies is already a crime. We determined in Letalien that the fifth factor 

weighed in favor of finding the statute punitive because it “applie[d] exclusively to 

behavior that is already a crime.” Id. ¶ 48. For that same reason, we agree that this 

factor supports a finding that the statute is punitive.
20

6. Rational Connection to Alternative Purpose

[¶42] The sixth factor is whether there is an alternative purpose rationally 

connected to the statute. We determined in Letalien that SORNA of 1999 “serves 

a valid governmental purpose separate from punishment” because it is “among the 

most basic obligations state government owes its people—ensuring their safety.” 

Id. ¶ 50. We discern no reason to depart from the determination we reached in 

Letalien and thus conclude that this factor weighs against finding that SORNA is 

punitive.

7. Excessive in Relation to Alternative Purpose

[¶43] The seventh and final factor requires us to determine whether the 

statute appears excessive in relation to its public safety purpose. The Does contend 

that requiring an individual previously convicted for a sex offense to register if he 

is later convicted of a non-sex-related offense punishable by more than one year is 

excessive. We analyze excessiveness as it relates to the increased burdens on

individuals who were originally sentenced before any statute requiring registration 

of sex offenders had been enacted and are now retroactively subject to ten-year or 

lifetime registration on the State’s sex offender registry. “The excessiveness 

inquiry . . . 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 
21

whether the regulatory means chosen are reasonable in light of the nonpunitive 

objective.” Smith, 538 U.S. at 105.

[¶44] Although the statutory reporting requirements of SORNA of 1999 are 

less stringent and oppressive than those we considered in Letalien, we nevertheless 

conclude again that we have insufficient information upon which to determine 

whether they are reasonable in light of the law’s nonpunitive purpose of public 

safety. Letalien, 2009 ME 130, ¶ 52, 985 A.2d 4. The record does not allow us to 

determine whether a less demanding regimen would serve the objective of public 

safety equally well. We accordingly treat this factor as neutral. See id. ¶ 55.

8. Assessment of Mendoza-Martinez Factors

[¶45] The Does argue that a conviction-based scheme is inherently punitive 

and that the Legislature should implement a risk-assessment scheme. However, 

“[i]t is not our role to ask whether the Legislature could achieve its goals through 

alternative means.” Id. ¶ 56. Our task is to determine whether the punitive effects 

of SORNA of 1999 overcome the Legislature’s civil intent by the clearest proof. 

See Cosgro, 2008 ME 64, ¶ 2, 945 A.2d 1221.

[¶46] Our ex post facto analysis in Letalien was informed and driven in 

significant part by the fact that registration was part of Letalien’s criminal 

sentence. See Letalien, 2009 ME 130, ¶¶ 60-61, 985 A.2d 4. Indeed, “the purpose 

of the ex post facto prohibition is rightfully considered to be at its apex when a 
22

law’s retroactive application is more punitive than the punishment that was 

actually imposed against an offender as part of a sentence.” Id. ¶ 61. By 

definition, it was punitive to increase Letalien’s sentence retroactively. Further, it 

was the cumulative effect of a combination of factors that produced a finding that 

the statute was unconstitutional in Letalien. That is simply not the case here, 

where registration was not part of the Does’ sentences and where some of the most 

significant concerns we had in Letalien have been remedied by the Legislature.

[¶47] In our present discussion of the Mendoza-Martinez factors, we 

conclude that only factor five—whether the statute applies to behavior that is 

already a crime—weighs in favor of finding SORNA of 1999 punitive.

[¶48] The first Mendoza-Martinez factor, which is whether the statute 

imposes an affirmative disability or restraint, looms large in our conclusion that the 

statute is nonpunitive overall. Title 34-A M.R.S. § 11222 significantly reduced the 

burden on individuals subject to the registry. We disagree with the Does’

argument that requiring lifetime registration is a significant restraint in and of 

itself. Regardless of the length of time an individual is subject to the registry, 

reporting to have his registration information verified in person every five years is 

a minimal burden, as is reporting in writing no more frequently than quarterly.

[¶49] Additionally, factor six, regarding the important and rational 

connection to a nonpunitive purpose—providing truthful information in 
23

furtherance of public safety—underscores our conclusion that the statute is 

nonpunitive. See Haskell, 2001 ME 154, ¶ 9, 784 A.2d 4 (“[T]he Supreme Court 

has intimated, in other cases, that the most significant question under the effects 

stage of the analysis is whether the law, ‘while perhaps having certain punitive 

aspects, serve[s] important nonpunitive goals.’” (alteration in original) (quoting 

United States v. Ursery, 518 U.S. 267, 290 (1996))).

[¶50] Factor four, whether the statute promotes traditional aims of 

punishment, and factor seven, whether the statute is excessive in relation to the 

alternate purpose, are found to be neutral; accordingly, they do not weigh heavily 

in our analysis.

[¶51] After considering all of the Mendoza-Martinez factors, we conclude 

that SORNA of 1999 is nonpunitive. As such, it does not violate the Ex Post Facto 

Clauses of the United States and Maine Constitutions.

C. Equal Protection

[¶52] The Does argue that SORNA of 1999 violates the Equal Protection 

Clauses of the United States and Maine Constitutions because its registration 

requirements infringe on the Does’ fundamental rights under article I, section 1 of 

the Maine Constitution and are not narrowly tailored to achieve a compelling 

governmental interest. In the alternative, the Does argue that SORNA of 1999

unlawfully and arbitrarily treats them differently from similarly situated sex 
24

offenders in requiring some offenders to register for ten years and others for life. 

The Superior Court found that SORNA of 1999 does not implicate a suspect class 

or a fundamental right, and concluded that the Does failed to establish that the 

statute treats them differently from similarly situated persons in a way that is not 

rationally related to a legitimate state interest.

[¶53] The Fourteenth Amendment’s Equal Protection Clause prohibits “any 

state from denying to any person within its jurisdiction the equal protection of the 

laws, and requires, generally, that persons similarly situated be treated alike. 

Article [I], section 6-A of the Maine Constitution includes similar requirements.” 

Anderson v. Town of Durham, 2006 ME 39, ¶ 28, 895 A.2d 944 (citations and 

quotation marks omitted); see U.S. Const. amend. XIV, § 1 (“[N]or shall any 

State . . . deny to any person within its jurisdiction the equal protection of the 

laws.”); Me. Const. art. I, § 6-A (“No person shall be . . . denied the equal 

protection of the laws . . . .”).

[¶54] In an equal protection challenge, a state law is subject to strict 

scrutiny analysis if it “infringes on a fundamental constitutional right, or 

involves . . . a suspect classification.” Anderson, 2006 ME 39, ¶ 29, 895 A.2d 944. 

If strict scrutiny applies, the law must be narrowly tailored to achieve a compelling 

governmental interest. Id. “If the government action does not implicate either a 

fundamental right or a suspect class, different treatment accorded to similarly 
25

situated persons need only be rationally related to a legitimate state interest.” Id.

(quotation marks omitted). Laws subject to rational basis review “bear[] a strong 

presumption of validity.” Id. “[T]he burden is on the party challenging the 

government action to demonstrate that there exists no fairly conceivable set of 

facts that could ground a rational relationship between the challenged classification 

and the government’s legitimate goals.” Id. (quotation marks omitted).

[¶55] As persons convicted of sex offenses, the Does are not members of a 

suspect or protected class for purposes of an equal protection challenge. 

See, e.g., United States v. Juvenile Male, 670 F.3d 999, 1009 (9th Cir. 2012); Doe 

v. Moore, 410 F.3d 1337, 1346 (11th Cir. 2005). Additionally, the Does have not 

established that SORNA of 1999 infringes on a fundamental constitutional right; 

they merely refer generally to article I, section 1 of the Maine Constitution10 and 

argue in greater detail with regard to substantive due process that a fundamental 

right is implicated. As we will discuss in our substantive due process analysis, we 

do not find that SORNA of 1999 implicates a fundamental constitutional right. 

Accordingly, the Does’ equal protection challenge is subject to the highly 

deferential rational basis review. See Anderson, 2006 ME 39, ¶ 29, 895 A.2d 944; 

 10 Article I, section 1 of the Maine Constitution provides, “All people are born equally free and 

independent, and have certain natural, inherent and unalienable rights, among which are those of enjoying 

and defending life and liberty, acquiring, possessing and protecting property, and of pursuing and 

obtaining safety and happiness.”
26

Haskell, 2001 ME 154, ¶ 16 n.10, 784 A.2d 4 (SORNA’s classifications “need 

only be rationally related to a legitimate government goal.”).

[¶56] In order “[t]o succeed in an equal protection challenge where, as here, 

the challenging party is not a member of a suspect class” and has not had a 

fundamental right infringed, the Does “must show (1) that similarly situated

persons are not treated equally under the law, and (2) that the statute is not 

rationally related to a legitimate state interest.” See MacImage of 

Me., LLC v. Androscoggin Cnty., 2012 ME 44, ¶ 33, 40 A.3d 975 (quotation marks 

omitted).

[¶57] The Legislature has required individuals who are convicted of certain 

sex offenses to register for ten years while requiring others who are convicted of a 

“sexually violent offense” or multiple sex offenses to register for life. See

34-A M.R.S. § 11203(5), (8). Although all registrants are labeled “sex offenders,”

the Does have not established that ten-year registrants are similarly situated to 

lifetime registrants because different conduct triggers the different durational 

requirements. See Green v. Comm’r of Mental Health & Mental Retardation, 

2000 ME 92, ¶ 22, 750 A.2d 1265 (“There is a good argument that insanity 

acquittees and individuals civilly committed are not similarly situated for purposes 

of equal protection analysis because of the difference in circumstances giving rise 

to their commitment.”). Contrary to the Does’ argument that all sex offenders are 
27

similarly situated, the law does not treat offenders convicted of particular offenses 

differently because SORNA of 1999 is a conviction-based system.

11

[¶58] We do not reach the second step in the analysis given our conclusion 

that the Does are not similarly situated to other sex offenders who are treated 

differently and the Does’ concessions (1) that protecting the public through 

publicizing offender information is a compelling state interest and (2) that we have 

previously held that the sex offender registration statutes were enacted to serve the 

legitimate governmental purpose of public safety. See Letalien, 2009 ME 130, 

¶ 50, 985 A.2d 4.

[¶59] For these reasons, SORNA of 1999 does not violate the Equal 

Protection Clauses.

D. Procedural Due Process

[¶60] The Does argue that the classification scheme of SORNA of 1999 

implies that they are “dangerous” and therefore they are entitled to challenge that

classification at a hearing pursuant to the Due Process Clause. The trial court 

concluded that the Does were not entitled to a hearing to establish whether they are 

 11 The Does also argue that similarly situated Does can end up in different categories as a result of 

prosecutorial discretion. However, “[i]t is well established that a reasonable prosecutorial discretion in

the enforcement of criminal laws is inherent in our criminal justice system,” and the Does do not claim 

that “selective enforcement was deliberately made on an impermissible and unjustifiable standard such as 

race, religion, a desire to discourage the exercise of one’s constitutional rights or other invidious criteria.” 

See State v. Heald, 382 A.2d 290, 301 (Me. 1978).
28

potentially dangerous because that fact is immaterial with regard to their duty to 

register.

[¶61] The Maine and United States Constitutions create coextensive due 

process rights. Northup v. Poling, 2000 ME 199, ¶ 9 n.5, 761 A.2d 872. “We 

review a procedural due process claim in two steps. First, we determine if the 

government has deprived a claimant of life, liberty, or property interests. Second, 

if such deprivation occurred, we then determine what process, pursuant to the 

Fourteenth Amendment, is due . . . .” DaimlerChrysler Corp. v. Me. Revenue 

Servs., 2007 ME 62, ¶ 26, 922 A.2d 465 (citations omitted).

[¶62] The Supreme Court has articulated the “stigma-plus test” to determine 

whether procedural due process rights12 are implicated when the state imposes a 

stigma on an individual that negatively affects his reputation. See Paul v. Davis, 

424 U.S. 693, 701, 711 (1976). A state action is an infringement on due process 

rights pursuant to the stigma-plus test only if it both negatively affects an 

individual’s reputation and alters the legal status of an individual in a manner that 

affects his or her liberty, such as revoking parole or taking away the right to 

operate a vehicle. Id. at 701, 708-09. The Does’ legal status is unaffected by 

 12 The stigma-plus test “is limited to consideration of the procedural guarantees of the Due Process 

Clause and is not intended to describe those substantive limitations upon state action which may be 

encompassed within the concept of ‘liberty’ expressed in the Fourteenth Amendment.” Paul v. Davis, 

424 U.S. 693, 710 n.5 (1976).
29

SORNA of 1999.

[¶63] Other courts have held that sex offender registration requirements are 

not violations of due process under the stigma-plus test because registration does 

no more than make the fact of conviction public, just as SORNA of 1999 does 

here. See, e.g., Does v. Munoz, 507 F.3d 961, 965-66 (6th Cir. 2007) (concluding 

that registration does not implicate a fundamental right because it disseminates 

accurate public information); cf. Gwinn v. Awmiller, 354 F.3d 1211, 1223-24 

(10th Cir. 2004) (holding that liberty interests were implicated under the 

stigma-plus test where the defendant was incorrectly placed on a sex offender 

registry without any process). Because the registry contains no information that 

cannot be obtained through a routine criminal background check, the registry does 

not affect any of the Does’ liberty or property interests, and we therefore need not 

reach the question of what process is due.

E. Substantive Due Process

[¶64] The Does argue that SORNA of 1999 violates their fundamental 

rights to privacy, reputation, and property, and their ability to pursue happiness, 

and that the law is not narrowly tailored to serve a compelling state interest. The 

trial court concluded that the statute does not violate the Does’ substantive due 

process rights because it does not infringe on any fundamental right and is 

reasonably related to a legitimate state interest.
30

[¶65] We have previously determined that the substantive due process rights 

of the United States and Maine Constitutions are coextensive, Green, 2000 ME 92, 

¶ 13 n.2, 750 A.2d 1265, and there is nothing presented in this case that causes us 

to reconsider that determination. A substantive due process analysis turns on 

whether the challenged state action implicates a fundamental right:

First, we have regularly observed that the Due Process Clause specially 

protects those fundamental rights and liberties which are, objectively, 

deeply rooted in this Nation’s history and tradition, and implicit in the 

concept of ordered liberty, such that neither liberty nor justice would 

exist if they were sacrificed. Second, we have required in 

substantive-due-process cases a careful description of the asserted 

fundamental liberty interest. Our Nation’s history, legal traditions, and 

practices thus provide the crucial guideposts for responsible 

decisionmaking that direct and restrain our exposition of the Due 

Process Clause.

Id. ¶ 13 (quoting Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)). In 

addition to the rights expressly protected by the Bill of Rights, “the ‘liberty’

specially protected by the Due Process Clause includes the rights to marry, to have 

children, to direct the education and upbringing of one’s children, to marital 

privacy, to use contraception, to bodily integrity, and to abortion.” Glucksberg, 

521 U.S. at 720 (citations omitted). Courts must be cautious in recognizing 

fundamental rights that have not been clearly established because “extending 

constitutional protection to an asserted right or liberty interest . . . place[s] the 

matter outside the arena of public debate and legislative action.” Id.
31

[¶66] If state action infringes on a fundamental right or fundamental liberty 

interest, the infringement must be narrowly tailored to serve a compelling state 

interest. Id. at 721. If the challenged state action does not implicate a fundamental 

right or fundamental liberty interest, it will be upheld if it is reasonably related to a 

legitimate state interest. Id. at 722.

[¶67] We conclude that no fundamental liberty interest or fundamental right 

is implicated by SORNA of 1999. In particular, the right to privacy alleged by the 

Does, i.e., the right to keep private the fact of conviction, is inapposite to the right 

to personal autonomy often described as a right to privacy by the Supreme Court

regarding family relationships and bodily integrity. Other courts have also 

concluded that no fundamental right is implicated by disclosure of truthful public 

information. See, e.g., Paul, 424 U.S. at 713 (holding that publication of a record 

of an official act, such as an arrest, does not implicate any fundamental right); 

Moore, 410 F.3d at 1345 (“[W]e can find no history or tradition that would elevate 

the issue here to a fundamental right. . . . [A] state’s publication of truthful 

information that is already available to the public does not infringe the 

fundamental constitutional rights of liberty and privacy.”); Doe v. Tandeske, 

361 F.3d 594, 597 (9th Cir. 2004) (“[P]ersons who have been convicted of serious 

sex offenses do not have a fundamental right to be free from the registration and 

notification requirements . . . .”); In re W.M., 851 A.2d 431, 451 (D.C. 2004) 
32

(“Under [the Sex Offender Registration Act] and its implementing regulations . . .

only truthful and accurate information of a non-confidential, mainly public nature 

is disclosed.”).

[¶68] We do not here establish a new fundamental interest or right. 

Because no fundamental right or interest is at stake and the Does have conceded 

that SORNA of 1999 is reasonably related to a legitimate state interest, see 

Letalien, 2009 ME 130, ¶ 50, 985 A.2d 4, the Does’ substantive due process 

challenges must fail.

F. Use of Guilty Pleas

[¶69] The Does argue that SORNA of 1999’s registration requirements 

exact more punishment than the Does agreed to in their plea bargain agreements

and they urge us to recognize a right of fundamental fairness under Maine’s 

Constitution and to find a violation of the Does’ right to contract. Because we 

have concluded that SORNA of 1999 is not punitive under an ex post facto 

analysis and implicates no fundamental rights, we do not find merit in this 

argument.

G. Rights Afforded by the Maine Constitution

[¶70] The Does urge us to establish a fundamental right to privacy, a right 

to protection of reputation, and a right to fundamental fairness under article I,

section 1 of the Maine Constitution. We have already held that SORNA of 1999 
33

does not implicate fundamental rights of privacy and reputation under the Maine 

Constitution in the context of the Does’ procedural and substantive due process 

claims. We also decline to expand our interpretation of Maine’s Constitution to 

include a generalized right to “fundamental fairness.” See Bagley, 1999 ME 60, 

¶ 13, 728 A.2d 127 (“[W]e have traditionally exercised great restraint when asked 

to interpret our state constitution to afford greater protections than those 

recognized under the federal constitution.” (quotation marks omitted)).

H. MCRA and § 1983

[¶71] The Does seek prospective relief to protect them from registering in 

the future, and an award of the costs associated with registering and the fees

associated with removing their names from the registry. The trial court denied the 

Does’ monetary claims, finding that they had not sought any prospective relief and 

that their claim for reimbursement was tantamount to an award of damages and 

was thus prohibited.

[¶72] Title 42 U.S.C.S. § 1983 states that “[e]very person who, under color 

of any [state law], subjects, or causes to be subjected, any citizen of the United 

States . . . to the deprivation of any rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party injured in an action at law.” The 

MCRA, 5 M.R.S. §§ 4681-4685, is patterned after § 1983 and “provides a private 

cause of action for violations of constitutional rights by ‘any person.’” 
34

Jenness v. Nickerson, 637 A.2d 1152, 1158 (Me. 1994). The Does have failed to 

establish that SORNA of 1999 violated their constitutional rights, thus barring their

claim for prospective relief, which they first raised on appeal.

[¶73] We also conclude that the Does cannot claim a refund for the $31 they 

paid to remove their names from the registry. The State’s sovereign immunity bars 

retroactive recovery of payments voluntarily made to the State. 

See Wellman v. Dep’t of Human Servs., 574 A.2d 879, 884 (Me. 1990) (holding 

that sovereign immunity barred retroactive recovery of any previously made 

payments). The Does voluntarily paid the fee. See State v. Van Reenan, 

355 A.2d 392, 395 (Me. 1976) (concluding that a defendant who voluntarily 

submitted to a breath test in order to avoid having his license suspended pursuant 

to a statute could not challenge the constitutionality of that statute because he was 

not subject to the sanctions of which he complained.).

[¶74] A state, including a state official in his or her official capacity, is not a

person within the meaning of § 1983 or the MCRA, barring the Does’ additional 

monetary claims. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64, 71

(1989); Jenness, 637 A.2d at 1158. We are not persuaded by the re-stylization of 

the Does’ damage claims as anything other than monetary compensation from 

alleged past violations. The court did not err in dismissing the Does’ monetary 

claims.
35

I. Summary Judgment

[¶75] The Does contend that the factual record on summary judgment was 

inadequate for the trial court to rule on the parties’ cross-motions. In particular, 

they contend that there were insufficient facts for the court to decide the Does’ 

equal protection and procedural and substantive due process claims.

[¶76] We are not persuaded by the Does’ arguments that the record was 

inadequate. Parties opposing summary judgment, in this case the Does, have the 

burden of presenting sufficient evidence to generate a genuine issue of material 

fact. See M.R. Civ. P. 56(c) (“Judgment shall be rendered . . . if . . . there is no 

genuine issue as to any material fact . . . .”); Estate of Pinkham v. Cargill, Inc., 

2012 ME 85, ¶ 16, 55 A.3d 1 (evaluating whether the plaintiff “presented enough 

evidence to create a genuine issue of material fact”); Cookson v. Brewer Sch. 

Dep’t, 2009 ME 57, ¶ 30, 974 A.2d 276 (“Because [plaintiff] has failed to raise a 

genuine issue of material fact . . . the court did not err in entering a summary 

judgment for [the defendant] . . . .”). The Does failed to do so here.

[¶77] In their ex post facto argument, but not in their summary judgment 

argument, the Does refer to factual disputes they claim warranted the denial of the 

State defendants’ cross-motion for summary judgment. Two facts were in the 

Does’ statement of material facts and denied by the State defendants. The first

concerns the relationship between the number of convictions and the risk of 
36

recidivism: “There is no empirical evidence and no accepted professional opinion 

that a person who committed two Class A sex offenses before 1985 would be more 

dangerous in 2010 as a sex offender than one who committed one such offense 

before 1985.” The second fact concerns whether there is a relation between sex 

offenders who commit non-sex offenses and public safety risks:

There is no empirical evidence and no accepted professional opinion 

that a sex offender who committed one sex offense before 1995 

followed by a Class C or higher offense unrelated to sexual activity is 

therefore more dangerous as a sex offender in 2010 than a pre 1995 

sex offender who has not committed a separate [C]lass C or higher 

offense after his sex offense but unrelated to any sexual activity.

In their reply brief, the Does identify two additional facts included in the State 

defendants’ statement of material facts that the Does denied, and which relate to 

the rate of recidivism over time.13

[¶78] In the final analysis, the disagreement between the Does and the State 

on the disputed facts does not concern material issues that the trial court would 

necessarily address in further proceedings. Instead, they constitute policy 

considerations that are appropriately addressed to the legislative process. The fact 

that the parties do not agree upon them or their import is not an impediment to 

 13 The two facts, with their citations omitted, are (1) “Over time, the cumulative rate of recidivism 

increases”; (2) “The recidivism rates for STATIC-99 show that cumulative re-offense rates are higher at 

15 years than 5 years.” The Does identify four other facts in their reply brief, but the Does admitted those 

facts.
37

summary judgment. We therefore conclude that the Does’ arguments that 

summary judgment was improperly granted are unpersuasive.

J. Attorney Fees

[¶79] Does I, III, IV, V, VI, VII, VIII, X, XIII, XVI, XVIII, XXIV, and 

XLIII argue that they should receive an attorney fees award as prevailing parties

pursuant to § 1983 and the MCRA. The trial court concluded that the Does were 

not entitled to recover attorney fees because they did not prevail on their motion 

for summary judgment. The court also found that the “catalyst theory” was an 

unavailable avenue for recovering attorney fees pursuant to Maine law, and even if 

it were available, the Does were not entitled to recover pursuant to that theory.

[¶80] The trial court may award attorney fees to a prevailing party “in any 

action or proceeding to enforce a provision of § 1983.” Bangs v. Town of Wells, 

2003 ME 129, ¶ 8, 834 A.2d 955; see also 42 U.S.C.S. § 1988(b) (Lexis 2012). 

The MCRA similarly provides that the court may award attorney fees to a 

prevailing party. 5 M.R.S. § 4683. We review the trial court’s “determination 

regarding prevailing party status for clear error,” and review its denial of attorney 

fees for an abuse of discretion. Bangs, 2003 ME 129, ¶ 7, 834 A.2d 955.

[¶81] The trial court’s finding that the Does were not prevailing parties is 

not clearly erroneous. The court ruled in favor of the State defendants on all of the 

Does’ claims. See Portland Co., 2009 ME 98, ¶ 32, 979 A.2d 1279. Moreover, 
38

the grant of temporary restraining orders does not satisfy the prevailing-party 

requirement. In the Does’ case, “the preliminary injunction[s] . . . merely 

maintained the status quo, [they] did not effect a material alteration in the parties’

legal relationship and the plaintiffs therefore [are] not prevailing parties under 

§ 1988.” See Advantage Media, LLC v. City of Hopkins, 511 F.3d 833, 837

(8th Cir. 2008).

[¶82] The Does argue that they are “prevailing parties” pursuant to the 

catalyst theory. The catalyst theory “posits that a plaintiff is a ‘prevailing party’ if 

[the lawsuit] achieves the desired result because [it] brought about a voluntary 

change in the defendant’s conduct.” Buckhannon Bd. & Care Home, Inc. v. W. Va. 

Dep’t of Health & Human Res., 532 U.S. 598, 601 (2001). The State defendants 

contend that the Supreme Court’s rejection of the catalyst theory in Buckhannon 

Bd. & Care Home, Inc. foreclosed an award of attorney fees to the Does. See

532 U.S. at 600.

[¶83] The Does advance the catalyst theory in arguing that Doe v. District 

Attorney led to the enactment of P.L. 2009 ch. 365, § B-3 (effective date 

Sept. 12, 2009) (codified at 34-A M.R.S. § 11202-A(1) (2009)), providing for 

certain exceptions to the registration requirements, and the litigation in Letalien,

leading to the legislative enactment of P.L. 2009 ch. 570 (effective date 

Mar. 30, 2010) (codified at 34-A M.R.S. §§ 11202-A, 11222, 11225-A), alleviating 
39

the reporting requirements. The connection between their lawsuit and the 

legislative changes is too tenuous. In fact, at the time John Doe I’s case reached us 

in Doe, the plaintiff had expressly not pursued an ex post facto claim.14 Instead, 

our decision in Letalien, analyzing an ex post facto claim, triggered the recent 

legislative changes to 34-A M.R.S. § 11222. Because the legislative changes to 

SORNA of 1999 are not the result of this litigation, we do not address the catalyst 

theory further.

IV. CONCLUSION

[¶84] For the foregoing reasons, we affirm the trial court’s decision that 

SORNA of 1999 is not an unconstitutional ex post facto law. The Does’ other 

constitutional and statutory challenges are unpersuasive.

The entry is:

Judgment affirmed.

SILVER, J., with whom ALEXANDER and JABAR, JJ., join, dissenting.

[¶85] We respectfully dissent because the requirements of SORNA of 1999 

are punishment to those who have completed their sentences and paid back society 

 14 “At oral argument, Doe’s counsel stated that he was not requesting that we reconsider whether 

SORNA is ex post facto as he recognized that State v. Haskell, and Smith v. Doe, had decided the issue.” 

Doe, 2007 ME 139, ¶ 21 n.4, 932 A.2d 552 (citations omitted).
40

long ago. As we have already learned, tragically, here in Maine, the publication of 

names and pictures on the Internet is dangerous and dramatically affects the 

registrants’ lives. See Associated Press, 2 Sex Offenders Shot to Death in Their 

Homes, N.Y. Times, Apr. 17, 2006, at A14; Raja Mishra, Suspect May Have 

Wanted to Kill Others, Boston Globe, Apr. 25, 2006, at B2. Those who do not 

comply with the requirements of SORNA of 1999 face criminal sanctions similar 

to those imposed on defendants who violate conditions of release or probation. 

The requirements of SORNA of 1999, as they affect these Does, are ex post facto 

laws that violate the United States and Maine Constitutions. Nowhere else in the 

realm of laws is such an ex post facto violation permitted.

[¶86] We do not dispute that the requirements of SORNA of 1999 may be 

enforced on persons whose sentences have been imposed since the requirements of 

SORNA of 1999 took effect. The propriety of applying SORNA of 1999 to current 

offenders is not at issue in this appeal. What is at issue is whether, after a person’s 

sentence has been imposed, and after that sentence has been served, the State may 

add to the sentence new and onerous burdens and restrictions that were not 

authorized when the offender was sentenced. The constitutional requirements that 

govern this issue are not unique to SORNA of 1999. If the State can impose 

additional burdens and restrictions here, it can do it for completed sentences for 
41

any other crime that society decides, in hindsight, was not subject to tough enough 

sanctions the first time around.

I. UNITED STATES CONSTITUTION

[¶87] There are several reasons why SORNA of 1999 is punishment and 

violates the United States Constitution. A look at some of the Mendoza-Martinez

factors shows that many of them weigh in favor of finding the statute punitive.

A. Affirmative Disability or Restraint

[¶88] We determined in State v. Letalien that “SORNA of 1999 [prior to the 

ch. 570 amendment] impose[d] a disability or restraint that is neither minor nor 

indirect” because “quarterly, in-person verification of identity and location of 

home, school, and employment at a local police station, including fingerprinting 

and the submission of a photograph, for the remainder of one’s life, is undoubtedly 

a form of significant supervision by the state.” 2009 ME 130, ¶ 37, 985 A.2d 4. 

Now, a lifetime registrant who was sentenced prior to September 18, 1999, is only 

required to report in writing every ninety days and report in person every five 

years, unless there has been a change in address or appearance. 34-A M.R.S. 

§ 11222(4-B) (2012). Admittedly, this is a lower physical burden on the offender 

than predecessor acts’ requirements that the offender report every ninety days in 

person. The level of state supervision, however, has not changed in a material way 
42

because the State still maintains and distributes the same amount of highly 

personal information about the offender.

[¶89] The effect of the registration and reporting requirements of SORNA 

of 1999 is substantially more burdensome than renewing a driver’s license. Most 

notably, if the offender fails to comply with the reporting provisions in SORNA of 

1999, he exposes himself to criminal liability, which reflects the punitive effect of 

the statute. See 34-A M.R.S. § 11227(1) (2012) (providing that the first offense is 

a Class D crime). In comparison, if an individual chooses not to renew his driver’s 

license he is simply not permitted to drive. Although the changes to SORNA of 

1999 have reduced the physical burdens on the offender, the State’s supervision 

and control over the offender have not been reduced. This supervision and control, 

as we recognized in Letalien, signifies the punitive effect of SORNA of 1999.

B. Historically Regarded as Punishment

[¶90] Labeling a law’s burden as civil instead of criminal does not reduce 

the level of punishment attached to the burden, nor should it reduce the 

constitutional protection connected to the burden.15 Likewise, a burden that was 

imposed as part of a sentence does not become less punitive if it is later imposed as 

part of a regulatory requirement that parallels sentencing.

 15 The issue of whether a burden is civil or criminal was discussed in further detail in State v. Letalien, 

2009 ME 130, ¶¶ 73-74, 985 A.2d 4 (Silver, J., concurring).
43

[¶91] In Letalien, we provided a detailed description of the evolution of the 

sex offender registry in Maine. 2009 ME 130, ¶¶ 4-12, 985 A.2d 4. One aspect of 

the registry that has evolved is its relation to sentencing procedures. Beginning in 

1996, the registration requirements of SORNA of 1995 were imposed as part of a 

sentence. P.L. 1995, ch. 680, § 4. Subsequently, the statute was amended to 

instruct the court to order convicted offenders to register at the time it imposed a 

sentence, but it was no longer “part of a sentence.” P.L. 2003, ch. 711, § B-13. 

Although the statutory language removed the registry from the direct realm of 

sentencing, this change “did not, in itself, make the registration requirements less 

punitive or otherwise remove the constitutional infirmity.” Letalien, 

2009 ME 130, ¶ 74, 985 A.2d 4 (Silver, J., concurring).

[¶92] The stigma associated with publication on the Internet is 

demonstrative of SORNA of 1999’s role as punishment and its punitive effects. 

See Smith v. Doe, 538 U.S. 84, 115-16 (2003) (Ginsburg, J., dissenting) (noting 

that the public notification regimen of the registry “calls to mind shaming 

punishments once used to mark an offender as someone to be shunned”); Doe v. 

State, 189 P.3d 999, 1012 & n.98 (Alaska 2008) (noting that the act of registering 

is not analogous to shaming, but the dissemination provision is analogous). The 

public does not have access to the pictures, home addresses, and work places of 

those convicted of robbery, arson, embezzlement, or any other crime. We 
44

acknowledge that there is a stigma connected to any criminal behavior and there 

often is retribution by the public against those who have committed crimes. 

However, in no other area of the criminal law do we allow the public to have 

access to such personal information. Because these Does have not committed 

additional sex crimes since they completed their sentences, they were not required 

to be on a registry when the registry system was first created. Placing them on the 

registry now forces them to face additional public ridicule. See Human Rights 

Watch, No Easy Answers: Sex Offender Laws in the US 78-79 (2007), available at

http://www.hrw.org/reports/2007/us0907/us0907web.pdf (discussing the serious 

impact the dissemination of registration information has on the registrants).

[¶93] In State v. Freeman we found that the civil proceeding by which some 

OUI laws were enforced had punitive consequences of the type that characterize 

criminal prosecution. 487 A.2d 1175, 1176-77 (Me. 1985) (finding the statute void 

because its purpose was frustrated). In our analysis of the civil OUI proceeding, 

we considered, in part, the effect that the pre-charging mechanism for OUI 

defendants had on one’s reputation. Id. at 1178.16 In this consideration, we noted 

that the stigma from the pre-charging mechanism associated with the civil 

 16 In State v. Freeman, in addition to stigma, we also considered that the defendant is still subject to 

arrest and detention and the “civil” charge enhances the charge and sentence of subsequent OUI 

violations. 487 A.2d 1175, 1178-79 (Me. 1985).
45

proceeding for the OUI offense paralleled the stigma associated with the criminal 

proceeding. Id. As a result, we found that the stigma was “highly suggestive of 

the true criminal nature of the procedure.” Id.; see also State v. Anton, 

463 A.2d 703, 708 (Me. 1983) (noting the lack of criminal stigma regarding the 

decriminalization of traffic offenses).

[¶94] Sex offenders who are required to register are subjected to stigma in 

part due to the underlying offense, but also in part due to the dissemination of 

information. The registry makes significant personal information readily available 

to the public.17 The impact of this dissemination is heightened by the use of the 

Internet, thus correlating the dissemination “to the shaming and branding 

punishments used in colonial times.” Doe v. Dist. Attorney, 2007 ME 139, ¶ 55, 

932 A.2d 552 (Alexander and Silver, JJ., concurring). As discussed below in 

relation to the traditional aims of punishment, the stigma associated with Internet 

publication has the potential to cause “retributive and vigilante violence against 

registrants.” Id. The historic connection to criminal sentencing and shaming, 

 17 SORNA of 1999 provides the public access to each offender’s name, date of birth, photograph, city 

or town of domicile and residence, address of employment, address of college or school, the statutory 

citation and name of the offense for which the registrant was convicted, and designation as a 10-year or 

lifetime registrant. 34-A M.R.S. § 11221(9)(A) (2012). Additional information, including the mailing 

address and physical location of a registrant’s domicile and residence, is easily available to the public 

through a written request. 34-A M.R.S. § 11221(9)(B) (2012).
46

along with the retribution and deterrence discussed below, demonstrate SORNA of 

1999’s punitive effect.

C. Traditional Aims of Punishment

[¶95] SORNA of 1999 promotes retribution and deterrence, especially as it 

relates to Does III, X, XIX, XXIII, and XLIII. Such characteristics are present 

regardless of the intent of the Legislature. As the Indiana Supreme Court said in 

its discussion of that state’s sex offender registration act: 

It is true that to some extent the deterrent effect of the registration and 

notification provisions of the Act is merely incidental to its regulatory 

function. And we have no reason to believe the Legislature passed the 

Act for purposes of retribution—vengeance for its own sake. 

Nonetheless it strains credulity to suppose that the Act’s deterrent 

effect is not substantial, or that the Act does not promote community 

condemnation of the offender, both of which are included in the 

traditional aims of punishment.

Wallace v. State, 905 N.E.2d 371, 382 (Ind. 2009) (quotation marks and citations 

omitted). Although we accept that SORNA of 1999 is not intended as retribution 

for sex offenders’ crimes, it has that effect, due, in part, to its tendency to 

stigmatize the registrant. As a result, “[i]t promotes community condemnation in 

its most extreme form: vigilantism.” Letalien, 2009 ME 130, ¶ 75, 985 A.2d 4 

(Silver, J., concurring).

[¶96] As discussed in prior SORNA cases, and cited with concern by the 

Does in this case, acts of violence against those registered on the Maine Sex 
47

Offender Registry are not unknown. In 2006, “a Canadian man targeted and 

murdered two Maine sex offenders, who[m] he had located on Maine’s registry 

website.” Doe, 2007 ME 139, ¶ 56 n.21, 932 A.2d 552 (Alexander and Silver, JJ., 

concurring); see also Letalien, 2009 ME 130, ¶ 75, 985 A.2d 4 (Silver, J., 

concurring). More recent iterations of SORNA continue to invite the possibility of 

vigilantism by providing access to the registry via Maine’s registry website. The 

use of the Internet registries allows anyone, anywhere in the world, to have 

unlimited access to the information.

[¶97] In addition to exposing the offenders to acts of vigilantism, there is 

evidence that registries do not achieve their primary objective of protecting the 

public. See 34-A M.R.S. § 11201 (2012) (“The purpose of this chapter is to protect 

the public from potentially dangerous registrants and offenders by enhancing 

access to information concerning those registrants and offenders.”). See also

Kristen M. Zgoba & Karen Bachar, National Institute of Justice, Sex Offender 

Registration and Notification: Limited Effect in New Jersey 2 (2009), available at

https://www.ncjrs.gov/pdffiles1/nij/225402.pdf (finding that the sex offender 

registry did not reduce the number of rearrests for sex offenses or the number of 

victims of sexual offenses). Instead, the registry may promote criminally deviant 

behavior by socially isolating offenders. See J.J. Prescott, Do Sex Offender 

Registries Make us Less Safe?, Regulation, Summer 2012, at 50 (discussing the 
48

“negative collateral consequences” for registrants, including loss of social ties, that 

may cause an increase in criminal behavior). As Justice Brennan noted in Trop v. 

Dulles, “I can think of no more certain way in which to make a man in whom,

perhaps, rest the seeds of serious antisocial behavior more likely to pursue further a 

career of unlawful activity than to place on him the stigma of the derelict, uncertain 

of many of his basic rights.” 356 U.S. 86, 111 (1958) (Brennan, J., concurring). 

SORNA of 1999 clearly promotes retribution and deterrence by inadvertently 

creating an environment where the Does are stigmatized in a way that may invite 

violent attacks and stall rehabilitation.

D. Excessiveness 

[¶98] SORNA of 1999 requires defendants convicted of statutorily specified 

sex offenses to register. 34-A M.R.S. § 11203(5)-(8) (2012). The registry widely 

disseminates information about all sex offenders convicted of these crimes. The 

only information provided to the public upon which it can determine the potential 

risk each offender poses, however, is the statutory citation and name of the offense 

that placed the offender on the registry. The registry, and therefore the public, 

does not take other factors into account, such as distinguishing between individuals 

“who have been evaluated by a clinical and forensic psychologist and determined 

to be at the lowest risk of reoffending, and those individuals who committed 

multiple crimes; victimized infants and toddlers; and tortured, maimed, or killed 
49

their victims.” Letalien, 2009 ME 130, ¶ 77, 985 A.2d 4 (Silver, J., concurring). 

By failing to distinguish among offenders, the registry exceeds its purpose of 

promoting public safety, making its effects on registrants punitive. 

E. Evaluation of the Mendoza-Martinez Factors

[¶99] We do not determine whether a statute has a punitive effect based on 

the mere number of factors that demonstrate such effect. Instead, we assess these 

factors and their relative weight. See Doe v. State, 189 P.3d at 1018. The factors 

discussed here, as well as the majority’s discussion regarding whether the behavior 

is already a crime, demonstrate that SORNA of 1999 has a punitive effect. Most 

notably, SORNA of 1999 imposes requirements that are historically regarded as 

punishment because of their connections to sentencing and the associated stigma. 

Additionally, the stigma associated with the registry subjects the offenders to 

retribution, which in turn promotes deterrence, which are traditional aims of 

punishment. Overall, these factors provide clear proof that the statute’s punitive 

effect overcomes the Legislature’s civil intent. See Smith, 538 U.S. at 92 (setting 

forth the United States constitutional standard for determining criminality of sex 

offenders registry).

II. MAINE CONSTITUTION

[¶100] SORNA of 1999, as it applies to the Does, violates the Maine 

Constitution. The Maine Constitution provides an independent basis for decision, 
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while the United States Constitution merely prescribes the minimum constitutional 

protections that states must afford their citizens.18 We conclude that the Maine 

Constitution can be distinguished from the United States Constitution, and that 

SORNA of 1999 violates the Maine Constitution, even if it would pass muster 

under the United States Constitution. Compare Smith, 538 U.S. at 105-06 (finding 

the Alaska sex offender’s registry constitutional pursuant to the United States 

Constitution) with Doe v. Alaska, 189 P.3d at 1003, 1007, 1019 (finding the Alaska 

sex offender’s registry unconstitutional pursuant to the state constitution).

[¶101] The placement of the Ex Post Facto Clause within the Maine 

Constitution, as compared to its placement in the United States Constitution, 

provides us a basis for applying a more heightened standard. In the Maine 

Constitution, the Ex Post Facto Clause is located in article I, section 11, which 

declares the personal rights of Maine’s citizens, while the federal Ex Post Facto 

Clause is located in article I, section 9, which describes the powers and limitations 

of the legislative branch of the federal government. Compare Me. Const. art. I, 

§ 11 with U.S. Const. art. I, § 9, cl. 3. The placement of the clause in the Maine 

Constitution shows that the Maine Constitution establishes a right of the people to 

not be subject to ex post facto laws, unlike the clause’s placement in the United 

 18 A more in-depth ex post facto analysis pursuant to the Maine Constitution, rather than the United 

States Constitution, is provided in Letalien, 2009 ME 130, ¶¶ 66-72, 985 A.2d 4 (Silver, J., concurring).
51

States Constitution, which merely prohibits Congress from enacting an 

ex post facto law as part of a list of limitations on the powers of Congress. The 

distinction leads to a significant consequence: to obtain a declaration that SORNA 

of 1999 is in violation of the prohibition on ex post facto laws in the Maine 

Constitution, the Does need to merely overcome the presumption of 

constitutionality; under the United States Constitution, they have to show the 

“clearest proof” that the statute is punitive despite the legislative intent to make it 

civil. See Smith, 538 U.S. at 92.

[¶102] Here, the State argues that SORNA of 1999 is presumed to have a 

civil effect, and thus be constitutional. Our opinion in Freeman emphasizes that a 

statute such as SORNA of 1999, originally enacted as an explicitly criminal 

punishment, cannot change its criminal nature and its punitive purpose simply by 

changing its label and its citation. Further, as the prior discussion of the 

Mendoza-Martinez factors demonstrates, the statute’s punitive characteristics rebut 

any presumption that the SORNA of 1999 law is somehow civil and non-punitive 

and thus compliant with the Maine Constitution’s prohibition on ex post facto 

laws. SORNA of 1999 exposes the registrants to a level of supervision, stigma, 

and penalty that is not contemplated by civil statutes. Similarly, it promotes the 

traditional aims of punishment by exposing the registrants to the same penalties as 

those newly convicted. Whether these factors provide the “clearest proof” that the 
52

effect of the statute is punitive is immaterial to the analysis under the Maine 

Constitution. These factors show that there is no doubt that SORNA of 1999 has a 

punitive effect that successfully rebuts the presumption of constitutionality and 

makes SORNA of 1999 a criminal law.

[¶103] For all the foregoing reasons, SORNA of 1999 is a retroactive 

application of a criminal law, which punishes those who have paid their penalty to 

society. Thus, it violates the Maine and United States Constitutions. Accordingly, 

we would vacate the judgment of the Superior Court and remand for a declaration

that the requirements of SORNA of 1999 cannot be imposed, retroactively, on the 

plaintiffs bringing this appeal.

On the briefs:

James E. Mitchell, Esq., and Elizabeth H. Mitchell, Esq., Jim Mitchell and 

Jed Davis, P.A., Augusta, for appellants John Does I, III, IV, V, VI, VII, 

VIII, X, XIII, XVI, XVIII, XXIV, and XLIII

Ronald W. Bourget, Esq., Law Offices of Ronald Bourget, Augusta, for 

appellants John Does XIX and XXIII

William J. Schneider, Attorney General, Paul Stern, Dep. Atty. Gen., Laura 

Yustak Smith, Asst. Atty. Gen., and Ronald Lupton, Asst. Atty. Gen., Office 

of the Attorney General, Augusta, for appellee State of Maine
53

At oral argument:

James E. Mitchell, Esq., for appellants John Does I, III, IV, V, VI, VII, VIII, 

X, XIII, XVI, XVIII, XIX, XXIII, XXIV, and XLIII

Paul Stern, Dep. Atty. Gen., for appellee State of Maine

Kennebec County Superior Court docket number CV-2006-113

FOR CLERK REFERENCE ONLY