Alaska Supreme Court Calls US Supreme Court "Idiots"

Well, not really. But I think that is a fair reading of the opinion that the Alaska court just issued.

A few days ago, the Alaska Supreme Court found that a prosecution under its sex offender registration statute was a violation of the Ex Post Facto Clause. The statute reviewed was essentially the same one the United States Supreme Court reviewed in Smith v. Doe. The method under which the Alaska court reached this conclusion was shocking. The court noted that it had previously held that Alaska had interpreted its Ex Post Facto Clause to be the same as the federal clause in all prior cases. Thus, it couldn't use the usual dodge to a Supreme Court opinion by arguing that the decision was based upon a broader right embodied in the state constitution. Instead the court revisited all of the Mendoza-Martinez factors and basically concluded that the US Supreme Court did the analysis wrong. The court noted that:

In following federal authority, our ex post facto cases have implicitly reasoned that it was unnecessary in those cases either to deviate from the federal analytical approach or to construe our constitution more protectively. We implicitly so reasoned because the federal decisions reached an outcome not inconsistent with the Alaska Constitution. Nonetheless, we have never endorsed federal ex post facto analysis as superseding or limiting our independent consideration of Alaska’s ex post facto prohibition. Nor have we indicated that federal interpretation of the federal ex post facto prohibition prevents us from reaching a different, and more protective, result under the Alaska Constitution.

Stare decisis therefore has no application here. Today’s decision does not overrule or depend on overruling any prior decision of this court, nor does it depart from any past holding of this court. We have never adopted a reading of Alaska’s ex post facto prohibition that would, unless overruled, foreclose today’s result....

Summing up the effects under the seven factors, we conclude that ASORA’s effects are punitive, and convincingly outweigh the statute’s non-punitive purposes and effects....

We therefore conclude that the statute violates Alaska’s ex post facto clause.

It would have been one thing if the court was willing to decide that the Alaska constitution was broader. However, deciding it was the same, but using the same method as the USSC and reaching the opposite conclusion is just an attack on the USSC. I think the dissent has the better end of the argument on the majority's methodology:

I disagree with the court’s conclusion that ASORA violates the ex post facto clause of the Alaska Constitution. The court maintains that its “reliance on the multifactor effects test is consistent with our past use of federal law in resolving state ex post facto claims.” But our past decisions have firmly established a practice of interpreting the Alaska ex post facto clause “no differently” than its federal counterpart. The court now purportedly applies that federal test to the facts of this case: “[t]he intent effects test provides an appropriate analytical framework here.” But the court’s decision directly conflicts with the United States Supreme Court’s application of the same test to the same statute. As we have concluded in the past, this case presents “no reason for us to interpret Alaska’s constitutional provision differently.”

I think the Alaska Supreme Court chose the wrong way to rule that there was an Ex Post Facto Clause violation. The Alaska court could have simply held that the USSC decision in Smith did not review the criminal penalties associated with the registry while the case before the Alaska court only concerned the criminal prosecution. The Smith court made this distinction easier (and, I think, right) when it wrote:

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 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.

So, while I think the Alaska court is right in the outcome, it's reasoning seems a little suspect.

Comments

[Daniel]

I am not sure why the reasoning is suspect. The last time I checked the state courts in Alaska have a power *independent* from that of the SC for citizens within their jurisdiction. As such, the Alaskan courts are free to adopt all the same facts and all the same reasoning and come to a different conclusion: that's exactly what it means to be independent. They are not really saying the SC is "stupid," merely that reasonable people can disagree. And that, acting on the independent authority instituted by the state constitution, they do.

[jjoe]

At pages 16-18 of the opinion the Alaska court tries to explain why the SCOTUS opinion does not control. Since the federal and state provisions contain the same language, it appears the court relies on their obligation to interpret the state constitution versus the federal. A bold move that throws another wrench into the AWA.

My only complaint was their refusal to castrate the phony 'recidivism' foundation on which all these laws pivot. A finding of a "legitimate regulatory purpose" to protect the public based on a fraud, is itself a fraud.

So they closed one door, but left another wide open.

[David Hess]

I also noted the sad failure to address the phony recidivism argument which is the foundation of all these sex offender laws. It is the "reason" given for treating sex offenders differently from all other offenders. Revealing this fraud would cause the whole house of cards to fall.

[George]

No one can doubt the good and worthwhile intentions of protecting children and everyone is devastated when we hear about Jessica Lunsford type cases. We all wish we could do something, anything. But there are other types of child abuse that are equally or more devastating than some types of child sexual abuse. Is viewing child pornography as devastating to an individual child as a father breaking his son's arms or beating him senseless? This goes to the statistics and maybe there is an equal protection argument under Skinner v. Oklahoma.

http://en.wikipedia.org/wiki/Skinner_v._Oklahoma

[David Eisenberg]

I think you overread this. Others have already said why. Great blog to which I will return.

[Corey Yung]

The Alaska Supreme Court could have decided that the state constitution was more protective than the federal constitution. That's how most state courts would have handled the case. Instead, the court maintained its line of cases that held that the Alaska right was coextensive with the federal right. Nonetheless, under state constitutional grounds, the Alaska court reached the opposite conclusion of the USSC.

The court said this wasn't a violation of the norm of stare decisis because the USSC's reasoning isn't binding on the state. That distinction effectively means that federal right is NOT coextensive with the federal right. Since the court is free to rule on a case-by-case basis that the USSC is wrong on Ex Post Facto questions, it can't be the case that the rights are the same.

The Alaska court wants to have it both ways - it doesn't want to overturn past Ex Post Facto precedent while still arguing that the USSC is wrong. The result is an unsatisfactory opinion where the reasoning of the dissent is a more intellectually consistent approach.

Corey