Civil or criminal? Deciding whether a law may be applied retrospectively yet constitutionally in Missouri.

AuthorGuntli, Timothy M.

State v. Wade, 421 S.W.3d 429 (Mo. 2013) (en banc).

  1. INTRODUCTION

    Although the U.S. Constitution and the constitutions of every state ban ex post facto laws, only Missouri and a minority of other states prohibit enactment of laws retrospective in their operation. (1) Understanding the difference between the two types of laws can be difficult at first glance. According to the Supreme Court of Missouri, an ex post facto law is one that "provides for punishment for an act that was not punishable when it was committed or that imposes an additional punishment to that in effect at the time the act was committed." (2) In comparison, a law retrospective in its operation is "one which creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past. It must give to something already done a different effect from that which it had when the act transpired." (3)

    An example should help to clarify the difference. Suppose that a defendant was convicted of a felony in the year 2002, at which time the state had not enacted a statute prohibiting convicted felons from possessing firearms. (4) Suppose further that the state enacts such a statute in 2004, two years after the defendant's conviction, and charges the defendant with violating the statute in 2005. Such a statute would not be an ex post facto law because it would not actually punish the conduct leading to the defendant's original conviction that occurred before the firearm statute's enactment. Rather, the statute would punish the defendant's possession of a firearm, which occurred after enactment of the statute. (5) However, the statute would be a retrospective law because it would impose a new disability (i.e., a prohibition on firearm possession) upon the defendant due to his past felony conviction.

    Although ex post facto laws and retrospective laws are similar concepts, the distinction can have an important impact on any given case in Missouri because the state constitution's ban on retrospectively operational laws applies only to civil--and not criminal--laws. (6) Thus, a party challenging a law as unconstitutional due to retrospective operation must first show that the law is civil in nature. (7) The distinction between criminal and civil laws is obvious in some cases, but the line can become quite blurry in the context of sex offender registration and restriction statutes. (8)

    Although the Supreme Court of Missouri recognized the difference between ex post facto laws and retrospectively operative laws long ago, the advent of sex offender statutes and their unique pseudo-criminal characteristics have challenged the court to delineate and apply criteria for deciding whether a particular provision is civil and, therefore, subject to the prohibition of retrospective laws. (9) Even though the Supreme Court of the United States provided substantial aid for this task with its decision in Smith v. Doe in 2003, (10) the application of Smith's, standard still leaves plenty of room for reasonable minds to disagree, as recently demonstrated by a divided Supreme Court of Missouri in State v. Wade. (11)

    This Note begins by discussing the facts and holding of Wade. (12) Next, this Note examines generally the legal background and history of bans on ex post facto laws and on laws retrospective in their operation in Missouri. (13) Then, this Note explains recent precedent regarding such bans, particularly in the context of sex offender registration statutes. (14) After the discussion of precedent, this Note explores the analyses of the majority, concurring, and dissenting opinions in Wade. (15) Finally, this Note concludes with a critique of these analyses in the instant decision and contemplates the future effects of the court's decision. (16)

  2. FACTS AND HOLDING

    This appeal arose from three consolidated cases of different defendants: Michael Wade, Jason Reece Peterson, and Edwin Carey. (17) In the late 1990s, all three men had been convicted of, or had pleaded guilty to, various sex crimes, and each was required to register as a sex offender. (18) Beginning in 2010 and continuing through the summer of 2011, each of the defendants was charged with violating Missouri Revised Statute Section 566.150, which prohibits any individual who has pleaded guilty to, or been convicted of, various sex offenses from "knowingly be[ing] present in or loiter[ing] within five hundred feet of any real property comprising any public park with playground equipment or a public swimming pool." (19) At the time of the charges, each defendant was in full compliance with all sex offender registration requirements. (20)

    Wade filed a motion to dismiss the indictment in his case, arguing that Section 566.150 was unconstitutionally retrospective as applied to him. (21) Wade claimed that the charge violated Article I, Section 13 of the Missouri Constitution, which prohibits enactment of any such retrospective law. (22) The trial court overruled his motion, and Wade waived his right to a jury trial. (23) Wade was convicted after a bench trial, and the court sentenced him to three years' imprisonment. (24) Wade appealed this sentence. (25)

    Peterson also filed a motion to dismiss the charge against him as unconstitutionally retrospective in violation of Article I, Section 13. (26) The State responded by arguing that the constitution's ban on retrospective laws applied only to civil rights and proceedings--not to criminal proceedings. (27) The State further argued that even if the retrospective ban applied to criminal statutes, the statute neither deprived Peterson of any of his rights nor did it "confer any additional duty, obligation, or disability on Peterson to comply with the statute." (28) The trial court, assuming that the constitutional ban on retrospective laws was not limited to civil statutes, sustained Peterson's motion to dismiss and found that Section 566.150 was unconstitutionally retrospective as applied to Peterson. (29) The State appealed this decision. (30)

    Carey also filed a motion to dismiss in his case, alleging that Section 566.150 was unconstitutional as applied to him because it "imposed a new obligation that was not present at the time of his conviction" in violation of the constitutional ban on retrospective laws. (31) Carey argued in particular that Section 566.150 became effective twelve years after his guilty plea and that laws similar to Section 566.150 had been found unconstitutionally retrospective as applied to offenders convicted before the enactment of the law. (32) The State responded by arguing that Article I, Section 13's prohibition against retrospective laws did not apply to criminal laws but only to civil rights and remedies. (33) The trial court sustained Carey's motion and dismissed the information. (34) The State appealed the trial court's dismissal. (35)

    On appeal of the three consolidated cases, the Supreme Court of Missouri affirmed Wade's conviction and reversed the lower courts' dismissals of Peterson's and Carey's charges. (36) The court, reaffirming that the constitutional prohibition on retrospective laws did not apply to criminal statutes, held that Section 566.150 was a criminal law and, therefore, was not invalid under the constitutional prohibition. (37)

  3. LEGAL BACKGROUND

    This Part begins with a general overview of Missouri precedent discussing the distinction between ex post facto laws and laws retrospective in their operation. The latter half of this Part details more recent precedent regarding that distinction in an era of sex offender registration statutes. Finally, this Part concludes with a brief discussion of recent precedent's impact on the decision in Wade.

    1. Ex Post Facto Laws and Laws Retrospective in Their Operation

      The U.S. Constitution and the constitutions of every state forbid ex post facto laws. (38) However, very few state constitutions proscribe the enactment of laws retrospective in their operation. (39) Among that small number of states is Missouri, which provides under Article I, Section 13 of its current constitution that "no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted." (40)

      The difference between the prohibition on laws retrospective in operation and the prohibition on ex post facto laws has been noted at least as far back as 1877, when the Supreme Court of Missouri considered the issue in Ex parte Bethurum. (41) In Bethurum, the petitioner contested an amendment to Missouri's habeas corpus act that gave the court power to rectify judgments in criminal cases that erroneously stated the length or place of an incarceration sentencing. (42) The petitioner challenged the amendment and included arguments that it was an ex post facto law and that it was a law retrospective in its application. (43)

      In denying all of the petitioner's arguments, the court held that a "Taw retrospective in its operation,' as the phrase is employed in our bill of rights, is one which relates to civil rights, and proceedings in civil causes." (44) In reaching its conclusion, the court cited U.S. Supreme Court precedent to demonstrate that "[t]he terms ex post facto and retrospective ... had acquired ... definite, legal meaning[s], long before the adoption of [Missouri's] constitution" (45) and that each term had a history of relating exclusively to either criminal or civil actions, respectively. (46) The court further clarified that "there can be no doubt that the phrase Taw retrospective in its operation,' as used in

      the bill of rights, has no application to crimes and punishments, or criminal procedure, and [the act at issue] is neither an ex post facto law nor a law retrospective in its operation." (47) The decision in Bethurum set the foundation for the Supreme Court of Missouri's future decisions, particularly those interpreting how...

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