On Thursday, a splintered Minnesota Supreme Court issued a decision on the reach of the state’s registry of “predatory offenders.”
In December 2004, the Cass County Attorney filed a complaint against Peter John Jones, an offender who had been earlier convicted of kidnapping, for failing to register his address with the state officials who maintain the Predatory Offender Registry – or POR. Under Minnesota law, kidnappers, as well as those who commit criminal sexual conduct crimes, must disclose certain information (including their addresses) to state authorities. This data is maintained on a central registry, the POR, for use by law enforcement.
In reply to the failure-to-register complaint, Jones asserted that the state registration requirement was a “civil-regulatory” matter, rather than a “criminal-prohibitory” one; and that as a result, he could not be prosecuted by state authorities for any violations. Jones argued that because he was an enrolled member of the Leech Lake Band, and lived on the Band’s reservation, prosecution of any civil-regulatory violations must be made by tribal authorities in tribal court. The District Court agreed, dismissing the suit; a judgment that was later affirmed by the Court of Appeals.
While it is not detailed in Thursday’s opinion, the practical implications of the District Court’s dismissal worried state officials immediately. If the registration statute could not be enforced against Native American offenders on tribal land, there would, for a time, be gaps in the state’s ability to monitor these offenders. At the time the District Court decision was announced there was little infrastructure for tribal authorities to do this work. Worse still, the contours of the “blackout areas” were not altogether clear – as there are disputes over the boundaries of tribal land that are very long-standing in some communities in Minnesota.
Reversing the judgment of the Court of Appeals, the Supreme Court splintered into three groups: Justices Paul Anderson, Samuel Hanson and Helen Meyer held that the registration requirements were part of a criminal-prohibitory statute; Justices G. Barry Anderson and Laurie Gildea, concurring in the judgment, wrote that categorizing the registration statute as either civil-regulatory or criminal-prohibitory was not required in order to permit failure to register prosecutions of tribal members; and Justice Alan Page and Chief Justice Russell Anderson in dissent, asserted that the statute was civil-regulatory.
For its part, in 2006, the Minnesota Legislature considered and rejected its own declaration that the POR statute was “criminal-prohibitory.” This is so because the traditional understanding was that changes to a criminal-prohibitory statute may, consistent with the prohibition on ex post facto
laws, only be applied prospectively
. And the POR statute has changed many times since it was first enacted; with retroactive application of these changes upon those who must register. The nimble, retroactive application of these changes in requirements was justified on the grounds that the registration statute was merely “civil-regulatory.” One wonders whether Thursday’s decision will give new life to ex post facto
challenges by offenders to changes that have been made in the POR program.
The complete opinion is accessible here