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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Doe v. State, Dept. of Public Safety (06/11/2004) sp-5815

Doe v. State, Dept. of Public Safety (06/11/2004) sp-5815

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


JOHN DOE,                )
                              )    Supreme Court No. S-10338
             Appellant,            )
                              )    Superior Court No. 4FA-97-2343
     v.                       )
                              )    O P I N I O N
STATE OF ALASKA,              )
DEPARTMENT OF PUBLIC          )    [No. 5815 - June 11, 2004]
SAFETY,                       )
             Appellee.             )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Richard D. Savell, Judge.

          Appearances:   Andrew Harrington,  Fairbanks,
          for   Appellant.    Kenneth  M.   Rosenstein,
          Assistant Attorney General, Office of Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Bruce  M. Botelho, Attorney General,  Juneau,
          for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh,  and Bryner, Justices.  [Carpeneti,
          Justice, not participating.]

          EASTAUGH, Justice
          MATTHEWS, Justice, concurring.


          This   appeal   presents  a  discrete   question   left

unanswered  by  the  United States Supreme Court  in  its  recent

decision  rejecting  a constitutional challenge  to  Alaskas  sex

offender registration statute.  After he was convicted of  a  sex

offense,  John Doe1 received a suspended imposition  of  sentence

(SIS),  subject  to satisfying specified conditions.   When  Does

probationary  period expired without imposition of sentence,  the

superior  court  set aside his conviction under authority  of  AS

12.55.085(e).  The Alaska Sex Offender Registration Act  (ASORA)2

became  effective soon after the court set aside Does conviction.

ASORA requires persons convicted of sex offenses to register with

the  state  and  to  provide  and  periodically  update  detailed

personal  information  that  the  state  then  publishes  on  the

Internet.   We  conclude that applying ASORA to  a  person  whose

conviction   was  set  aside  before  ASORA  became  specifically

applicable to convictions that were set aside violates the Alaska

Constitutions guarantee of due process.  We therefore remand  for

entry  of  an  order  enjoining the state  from  publishing  Does

personal  information and requiring it to return all  information

Doe provided when he registered under protest.


          John  Doe was found guilty after a bench trial  on  two

counts  of child sexual abuse for offenses he committed in  1987.

He  appeared  before the superior court for sentencing  in  1989.

The court entered an order suspending the imposition of sentence,

conditioned  on  Doe serving probation for three years,  spending

ninety days at a halfway house, completing 200 hours of community

work service, and receiving mental health counseling.  After  one

count was later dismissed, the superior court entered a corrected

modified  order  on the remaining count in May  1991.   The  1991

order again granted Doe a suspended imposition of sentence (SIS).

So  far  as we can determine from the record, the state  did  not

object  to  the  1991  SIS.  In April 1994,  as  Does  period  of

probation  was expiring, the Alaska Department of  Law  gave  the

superior  court  written notice that the  state  did  not  oppose

setting aside Does conviction; the superior court then entered  a

discharge order.  The discharge order observed that the period of

probation had expired without imposition of sentence and that Doe

was  entitled to be discharged under AS 12.55.085(d)  and  Alaska

          Rule of Criminal Procedure 35.2; it consequently ordered that the

[j]udgment of conviction is hereby set aside.3

          The   legislature  enacted  the  Alaska  Sex   Offender

Registration  Act  (ASORA) in May 1994.4  ASORA became  effective

August 10, 1994.5  It requires sex offenders present in Alaska to

register with the Alaska Department of Corrections, local police,

or  the Alaska State Troopers and to provide and update specified

personal information.6  The act requires the Alaska Department of

Public  Safety to make most of that information available to  the

public.7  All fifty states and the District of Columbia have some

form  of  sex  offender registration act.8   These  statutes  are

commonly known as Megans Laws after Megan Kanka, a seven-year-old

New  Jersey girl who was sexually assaulted and murdered in  1994

by  a  neighbor  who had two prior convictions for  sex  offenses

against children.9

          ASORA  requires  each registrant to  provide  extensive

personal information: name, address, and place of employment; the

crime  triggering the duty to register and the date and place  of

the  conviction; all aliases used; a description of any  personal

identifying  features; drivers license number; a description  and

the license plate number and vehicle identification number of any

vehicles  the  registrant drives or has  access  to;  anticipated

address   changes;   and  information  about  any   psychological

treatment received.10  Registrants must also allow themselves  to

be  photographed  and fingerprinted.11  Registrants  must  update

their  information if it changes.12  A registrants  fingerprints,

drivers   license  number,  anticipated  address   changes,   and

psychological  treatment  history are kept  confidential.13   The

remaining  information is made available to  the  general  public

through a central registry maintained by the Alaska Department of

Public Safety and posted on the Internet.14

          The   Department   of  Public  Safety   promulgated   a

regulation in 1995 defining conviction for purposes of  ASORA  to

include  findings of guilt by a court whether or not the judgment

was  thereafter  set  aside under AS   In  1999  the

          legislature amended ASORAs statutory definition of conviction to

include  judgments that had been set aside under AS

The  state argues that ASORA applies to Doe.  We assume, per  the

states assertion, that it does.

          Doe  did  not initially register when ASORA was enacted

in  1994.  He registered under protest in November 1997  after  a

letter  from  the  state  told him that  ASORA  required  him  to

register and warned him of the criminal consequences for  failing

to  register.17   A  week  after he  registered,  Doe  filed  for

injunctive  and declaratory relief, alleging that  enforcing  the

registration  requirement against him violated his constitutional

rights and that the Department of Public Safety did not have  the

authority  to  promulgate the regulation defining  conviction  to

include convictions that were set aside.18

          Superior  Court Judge Richard D. Savell granted  Doe  a

temporary  restraining  order that precluded  the  Department  of

Public Safety from publicizing his registration information;  the

court  also  allowed  Doe  to  prosecute  his  lawsuit  under   a

pseudonym.    The  superior  court  ultimately  granted   summary

judgment  to Doe, ruling that the department had overstepped  the

scope   of  its  authority  in  defining  conviction  to  include

convictions  that  had been set aside.  The superior  court  held

that  the  legislature did not clearly indicate its intention  to

include  set-asides in ASORAs registration requirement, and  that

the  departments inclusion of set-asides therefore  exceeded  the

departments  authority  to  promulgate  regulations  effectuating

ASORAs purpose.

          The  Department of Public Safety appealed these rulings

to  this  court.  We ordered the appeal stayed while  the  Alaska

Court   of  Appeals  considered  in  another  case  whether   the

department had authority to adopt 13 AAC 09.900(a)(2).  The court

of  appeals  ultimately concluded in that case, State v.  Otness,

that the regulation was valid because it was consistent with  the

legislative purpose to protect the public.19

          Given  the  court of appealss decision  in  Otness,  we

          remanded the departments appeal in Does case to the superior

court  for reconsideration.  Judge Savell ultimately vacated  his

earlier  judgment, denied summary judgment to  Doe,  and  granted

summary judgment to the department.  The superior court based its

decision  on Otness and Patterson v. State.20  In Patterson,  the

court   of  appeals  considered  and  rejected  a  sex  offenders

challenge to ASORAs constitutionality, holding that ASORA did not

violate  state  or federal constitutional ex post  facto,  double

jeopardy, due process, or equal protection provisions, or Alaskas

constitutional  guarantee of the right  to  privacy.21   Applying

Patterson, the superior court in Does case rejected all  of  Does

constitutional claims and upheld ASORA as applied to Doe.

          Doe appeals.


     A.   Standard of Review

          We review de novo questions of law, including issues of

statutory interpretation.22  We apply our independent judgment in

deciding whether a statute violates the Alaska Constitution.23

     B.   Decisions  of the United States Supreme Court  and  the
          Ninth  Circuit  Rejecting  Federal  Challenges  to  the
          Alaska  and Connecticut Sex Offender Registration  Acts
          Do Not Resolve the Issue Presented Here.
          Before  discussing Does state constitutional arguments,

we  address  the  effect of two recent decisions  of  the  United

States  Supreme Court rejecting federal constitutional challenges

to   the  sex  offender  registration  statutes  of  Alaska   and

Connecticut.24  Does case differs from the Supreme Courts cases in

an  important respect: the superior court granted Doe an SIS  and

set  aside  his conviction before ASORA became effective.   Those

cases  did  not require the Supreme Court to decide the  question

before  us: whether applying ASORA to Doe would violate  his  due

process rights given that he satisfied the conditions of the  SIS

and  the trial court set aside his conviction before ASORA became

specifically applicable to convictions that were set aside.

          Smith   v.   Doe   resolved  a  federal  constitutional

challenge  to  the Alaska Sex Offender Registration  Act.25   The

          United States Court of Appeals for the Ninth Circuit had held

that ASORA violated the ex post facto clause of the United States

Constitution.26   Holding on certiorari  that  it  did  not,  the

Supreme  Court  reversed and remanded to the  Ninth  Circuit  for

consideration of the registrants remaining federal constitutional

arguments.27   We  are  not bound here  by  the  Courts  decision

upholding the Alaska statute, because it decided only that  ASORA

did  not  violate the federal ex post facto clause.  It  did  not

turn  on the state due process concepts that control our analysis

in this appeal.

          Connecticut Department of Public Safety v. Doe, decided

the same day, rejected a federal procedural due process challenge

to  Connecticuts  sex offender registration  act.28   The  United

States Court of Appeals for the Second Circuit had held that  the

Federal   Constitutions  guarantee  of  procedural  due   process

required Connecticut to provide a convicted sex offender with  an

individualized  hearing on the issue of his dangerousness  before

requiring him to register.29  The Supreme Court reversed, holding

that  the federal right of procedural due process did not require

an individualized hearing on that issue.30

          A  recent Ninth Circuit decision, Doe v. Tandeske, also

upheld  ASORA against federal due process challenges.31  Tandeske

is  the  Ninth  Circuits decision on remand of  Smith  v.  Doe.32

Relying  on  Connecticut Department of Public Safety,  the  Ninth

Circuit  held that ASORA does not deprive convicted sex offenders

of  the federal right to procedural due process.33  Likewise, the

Ninth  Circuit determined that Smith precluded it from concluding

that  ASORA violates rights to substantive due process under  the

Federal  Constitution.34  Tandeske, like  Smith  and  Connecticut

Department  of  Public Safety, did not address the  narrow  issue

presented  here.  Tandeske concerned two convicted sex  offenders

who  had  served  sentences of incarceration for their  crimes.35

Unlike  Does situation, it appears that the impositions of  their

sentences were not suspended and that their convictions  had  not

been  set  aside  before ASORA was enacted and became  effective.

          Thus the case did not decide whether applying ASORA to a person

whose conviction has been set aside violates due process.

     C.   ASORA Violates Does Due Process Rights Under the Alaska
          Doe  advances  various grounds for his contention  that

ASORA cannot constitutionally be applied to him.  He argues  that

ASORA   deprives   him  of  liberty  and  violates   the   Alaska

Constitutions  guarantee of due process.   He  also  argues  that

applying ASORA to him violates the prohibitions against  ex  post

facto  laws  and  double jeopardy, denies him  equal  protection,

infringes on the doctrine of separation of powers, and interferes

with  the  Alaska Constitutions guarantee of a right to  privacy.

The state contests each of these claims.

          Doe  contends  in essence that applying  ASORA  to  him

violates  his fundamental right to be free from significant,  new

affirmative burdens resulting from his conviction even  though  a

court  set aside that conviction before the statute was  enacted.

Does  arguments  encompass  the grounds  on  which  we  rule  and

squarely  raise the question of the legitimacy of the governments

interference with his fundamental interests in liberty  and  fair

procedural treatment.

          State  courts are not necessarily bound by  the  United

States  Supreme  Courts decisions when they  consider  issues  of

state constitutional law.36  Only the Supreme Courts decisions on

issues of federal law, including issues arising under the Federal

Constitution,  bind  the  state  courts  consideration  of  those

issues.   The  Alaska  Supreme Court is the  final  authority  on

whether  an  Alaska  statute violates the Alaska  Constitution.37

Does  appeal  involves Alaskas constitutional  guarantee  of  due

process.   The  Federal  Constitution protects  the  due  process

rights  of all Americans.  But federal law does not preclude  the

Alaska Constitution from providing more rigorous protections  for

the  due  process  rights of Alaskans.38   When  we  interpret  a

provision  in  the Alaska Constitution, we are not bound  by  the

United  States Supreme Courts interpretation of the corresponding

provision in the Federal Constitution.39  We may not undermine the

minimum  protections  established by the  United  States  Supreme

          Courts interpretations of the Federal Constitution.  But we have

repeatedly explained that

          we  are  free, and we are under  a  duty,  to
          develop additional constitutional rights  and
          privileges  under our Alaska Constitution  if
          we   find   such   fundamental   rights   and
          privileges  to  be within the  intention  and
          spirit  of our local constitutional  language
          and to be necessary for the kind of civilized
          life and ordered liberty which is at the core
          of our constitutional heritage.[40]
          The  Supreme  Courts two recent decisions dealing  with

state   registration  statutes  exclusively   concerned   federal

constitutional challenges.

          We  have  often recognized the importance  of  personal

liberty under our constitution.  [A]t the core of this concept is

the notion of total personal immunity from governmental control.41

The  right  is  not absolute; its limits depend on a  balance  of

interests that varies with the importance of the right infringed.42

When the state encroaches on fundamental aspects of the right  to

liberty, it must demonstrate a compelling government interest and

the absence of a less restrictive means to advance that interest.43

          1.   The   meaning  and  effect  of  setting  aside   a


          Doe  argues that because the superior court  set  aside

his  conviction  before ASORA was enacted, the state  cannot  now

force  him to register and divulge new, private information.   To

evaluate  his argument and the importance of the liberty interest

at  stake,  we  must consider the meaning and effect  of  setting

aside a conviction.

          When  Doe  was convicted, the superior court  suspended

the  imposition  of his sentence, subject to several  conditions.

Doe met those conditions.  After Does probationary period expired

without  imposition  of sentence, the superior  court,  with  the

states consent, entered a judgment setting aside his conviction.

          Alaska   Statute   12.55.085  governs   the   suspended

imposition of sentences and conviction set-asides.44  It grants a

          trial judge discretion to suspend, in the interest of justice,

the  imposition  of  a  sentence  and  place  the  defendant   on

probation.45  If the defendant satisfies the terms and conditions

of  the  probation without incident, the court may set aside  the

conviction and issue to the person a certificate to that effect.46

Such  measures  are  typically reserved for low-risk,  first-time

offenders,47 a description the superior court found fit Doe  when

it suspended imposition of his sentence.48

          A   conviction  that  has  been  set  aside  is  not  a

conviction  in situations in which a sentence is increased  or  a

crime is defined by a prior conviction.49  A conviction that  was

set  aside  is  not a prior conviction within the meaning  of  AS

12.55.125  and  .145  (if  sufficient time  has  elapsed),  which

describe  the  proper use of prior convictions  in  sentencing.50

Moreover,  a person with a conviction that was set aside  has  an

affirmative  defense  in  some repeat offender  situations.   For

example, AS 11.61.200 (misconduct involving weapons in the  third

degree)  punishes  a  person who knowingly  possesses  a  firearm

capable  of  being  concealed on ones person  after  having  been

convicted  of  a felony, but provides an affirmative  defense  to

prosecution if the underlying conviction upon which the action is

based has been set aside under AS  A conviction that

was  set  aside may not be used to impeach a witness  for  having

been   convicted  of  a  crime  under  Alaska  Rule  of  Evidence


          In  State  v.  Mekiana  we  discussed  the  purpose  of

suspending imposition of sentence and setting aside a conviction:

          Ordinarily,  when a judge  opts  to  order  a
          suspended  sentence the judge  has  evaluated
          the  defendants  background and  offense  and
          decided  the defendant deserves a  chance  to
          show   that  he  or  she  has  reformed   and
          therefore  should be rewarded  with  a  clean
          record.  One of the purposes of the set-aside
          statute  is  to  provide defendants  with  an
          incentive  to  meet the conditions  of  their
          The  Alaska  Court of Appeals has also  considered  the

          meaning of a set-aside under AS 12.55.085.  In Wickham v. State

it  said  that a set-aside order reflect[s] a substantial showing

of  rehabilitation.54  The court of appeals wrote there  that  it

seems  virtually  inconceivable that a set-aside  would  ever  be

justified  in the face of substantial evidence establishing  that

an offender had not actually been reformed.55  It concluded that a

conviction  that has been set aside cannot be used to  impeach  a

witness  at  trial.56  In his dissent in State v.  Otness,  Chief

Judge  Coats observed that after defendants completed  conditions

of  suspended  imposition  of  sentence,  they  could  reasonably

conclude  that their criminal conviction was part of their  past,

and  that, if they continued to be law abiding citizens, they had

a  good chance of not suffering any disabilities because of  this

prior prosecution.57

          But  as  the  state observes, other decisions  of  this

court  indicate that the meaning of set aside is not as clear  as

Doe  claims.   We  have  recognized  that  while  the  collateral

consequences of a set aside conviction should be limited, records

of a set aside conviction can be used in certain circumstances.58

For example, prior convictions that were set aside may be treated

as  aggravating factors when sentence is imposed for a subsequent

crime; AS 12.55.155(c)(8) and (c)(21) allow a sentencing judge to

consider a defendants prior criminal history.59

          Further,  we have held that setting aside a  conviction

does  not  expunge  the  conviction from  an  offenders  criminal

record.60  Both the conviction and the judgment setting it  aside

consequently remain in the public record.  Members of the public,

such  as  potential  employers inquiring into  a  job  applicants

criminal record, can learn of the existence of a conviction  that

has  been  set  aside.61  They can do this by  researching  court

records  or  by  requiring a person applying  for  employment  or

housing to divulge the fact of a prior conviction even if it  has

been set aside.

          An  offenders public record normally does  not  include

information about events or circumstances post-dating  the  order

          granting the set-aside.  The public record will normally include

at  least  some description of the conduct that resulted  in  the

conviction  and the circumstances that justified the set-aside.62

In  our experience, the public record of an offender who receives

a  set-aside contains little of the information that ASORA  makes


          A  conviction  that  was set aside therefore  has  some

lingering  consequences.  But these consequences  are  relatively

limited,  and  are  foreseeable to a  set-aside  candidate.  They

follow  naturally  from  the  original  conviction  and  are  not

inconsistent with the findings that justify a set-aside  or  with

the set-aside order itself.

          Moreover, the offender has some ability to limit public

interest  in  the information because it is often  the  offenders

post-set-side elective conduct (e.g., applying for  a  job)  that

potentially  requires him or her to disclose adverse  information

already in the public record.   The defendant can limit the  risk

he  will  have  to  disclose  this information  by  limiting  his

application  choices or withdrawing applications  when  asked  to


          As  we  will see, the effects and consequences of ASORA

are much different.

          2.   Liberty and procedural interests arising from  the
               findings and Does set-aside
          Suspending  the  imposition of sentence  requires  that

there  be circumstances in mitigation of the punishment, or  that

the  ends of justice will be served.64  An order setting aside  a

conviction  reflects  a substantial showing of  rehabilitation.65

The superior court twice carefully considered Does circumstances,

in  1989 and 1991, when it suspended imposition of sentence.   It

determined that Does offense was not serious and that he did  not

pose  a risk to the community.  When the superior court set aside

Does  conviction in 1994, it issued him a certificate that stated

that  the defendant is discharged by the court without imposition

of  sentence  and  that [j]udgment of conviction  is  hereby  set

          aside.  The set-aside thus rewarded Doe for satisfying the

obligations  imposed on him by the superior court, based  on  the

confirmation that he did not pose a threat of reoffending.

          As  Does  opening  brief cogently argues,  a  set-aside

recipient has already had to demonstrate that he does not fall in

[the] category of high risk for a reoffense:

          The   core   legislative  finding  underlying
          enactment  of  the original Registration  Act
          itself is that sex offenders pose a high risk
          of  reoffending after release  from  custody,
          section 1, ch. 41, SLA 1994.  For individuals
          with set-asides, the court has already made a
          two-step  longitudinal  assessment   of   the
          likelihood  of  a reoffense.   The  court  in
          making  the initial determination to  suspend
          imposition  of  sentence  has  evaluated  the
          individuals   background  and   offense   and
          decided  the defendant deserves a  chance  to
          show   that  he  or  she  has  reformed   and
          therefore  should be rewarded  with  a  clean
          record.  The offender, following a jail  term
          if  the court chooses to require it, is  then
          put  on probation for an extended period  (in
          John  Does case, nearly five years)  to  give
          the  authorities ample opportunity to monitor
          his  risk  of  reoffending following  release
          from  custody.  The court thus  has  had  the
          chance  to check the accuracy of its  earlier
          prediction; if there has been a violation  of
          the   conditions  of  probation,   then   the
          conviction will not be set aside.  Thus,  any
          individual who has been given a set-aside has
          already  had to demonstrate that he does  not
          fall  into that category of high risk  for  a
(Footnotes omitted.)

          Does  set-aside  was consequently founded  on  judicial

findings  that he presented no significant risk to the community.

These  findings,  with  respect  to  his  1987  conduct  and  his

conviction,  were final and unchallenged.  With  respect  to  his

responsibilities  flowing  from  his  conviction,  they  preclude

subsequent reconsideration whether he posed a significant risk of

committing the same offense again.

          Further,  the findings resulted in the superior  courts

entry  of  the set-aside order.  This was a final and  unappealed

judicial act.

          Does opportunity to have his conviction set aside if he

satisfied the conditions the superior court imposed was a crucial

element  of the order suspending the imposition of his  sentence.

After  he satisfied the conditions,66 confirming the courts prior

findings that he was unlikely to reoffend, the set-aside  created

a  settled expectation that the state would not subsequently  use

the  conviction that was set aside as a basis for imposing brand-

new  affirmative burdens on him.  The now-confirmed findings  and

set-aside  conferred on Doe a fundamental right to be  let  alone

with respect to the conviction that was being set aside.67

          After the court set aside his conviction, Doe no longer

had  the status of a convicted person.68  There may be unresolved

questions  about the full effect of setting aside  a  conviction.

But,  at  a minimum, the status of a person whose conviction  has

been  set  aside  differs greatly from that  of  a  person  whose

conviction  has  not  been  set  aside,  because  the   set-aside

recipient  has  now  been  placed  in  the  category  of  persons

expressly or implicitly found to pose little threat of committing

new crimes.

          The  SIS findings and 1994 set-aside clearly give  rise

to  interests in liberty and fair procedural treatment that merit

constitutional protection.

          3.    ASORAs  effect  on  Does liberty  and  procedural


          Even  though the lives of set-aside recipients  may  be

subject  to  adverse, and even significant, consequences  arising

from the fact of their former convictions, these consequences are

not  inconsistent  with  their settled expectations  and  do  not

obviously affect their liberty interests.

          In  comparison, ASORA very significantly  and  directly

affects  the lives of set-aside recipients.  The ways and  extent

it  does  so  differ  greatly from the lingering  consequences  a

conviction that was set aside may continue to have.  The  effects

          of ASORA arise from four features of the statute.  First, it

imposes  on  offenders an affirmative duty to register  with  law

enforcement agencies.69  Second, it requires offenders to disclose

extensive  personal  information, much of  which  the  government

would  not  otherwise have, and much of which  is  not  public.70

Third,  it  requires offenders to keep their information  current

for  at least fifteen years or the rest of their lives, depending

on  the  offense.71  This period often exceeds both the sentences

actually  received by some classes of offender, and the  duration

of  any non-custodial supervision.  Fourth, it requires the state

to   maintain  a  public  registry  of  most  of  the   disclosed


          These  features derive from the assumption that persons

convicted of sex offenses pose a significant danger of committing

new  sex  offenses.73  This general assumption  is  fundamentally

inconsistent  with the individualized findings of  fact  a  court

makes  before  setting  aside a particular offenders  conviction.

These  findings are a judicial determination that the  particular

offender  does not pose significant danger of reoffending.   This

determination  as  to a particular offender is inconsistent  with

treating  him as if he belongs to a class that poses a danger  of

committing new sex offenses.

          Therefore,   applying  ASORA  to  an   offender   whose

conviction  has  been  set aside inherently  conflicts  with  the

judicial  proceedings that resulted in the  set-aside.   Applying

ASORA  to  the  set-aside recipient therefore  also  defeats  the

offenders settled expectations that legitimately arise  from  the

findings  and  the  set-aside adjudication.   Moreover,  applying

ASORA  to  Doe also defeats his settled expectations because  his

conviction was set aside even before ASORA was enacted or  became


          Imposing  ASORAs affirmative duties on Doe  effectively

reclassifies  his  status from that of a person  who  received  a

judgment  setting  aside his conviction to that  of  a  convicted

offender  whose  conviction  still  stands.   Offenders  who  are

          granted a set-aside order have been placed in the category of

people  who have been individually found by courts not to pose  a

danger  to  society.  ASORA indiscriminately groups those  people

with  persons  who  are presumed to pose a future  danger.   This

general  finding  of  dangerousness  is  inconsistent  with   the

particularized   case-by-case   judicial   findings   made   when

individual  defendants are granted SIS, before their  convictions

are ultimately set aside.

          The  burdens imposed by ASORA differ dramatically  from

those  lingering  consequences that survive a  set-aside.   ASORA

imposes mandatory duties even if the defendant does not engage in

new  elective  conduct.   It  imposes these  duties  because  the

defendant is physically present in the state, not because he  has

applied  for  employment,  housing, or some  government  benefit.

These  burdens include affirmative duties to do things (register,

disclose, and update information), not merely refrain from  doing

things  (committing no new crimes).  The duties  are  significant

and  intrusive,  because  they compel offenders  to  contact  law

enforcement agencies and register even if they have committed  no

new  offense, and to disclose private information, much of it for

public dissemination.  They are also intrusive in their duration.

Failure  to  comply exposes the offender to criminal sanctions.74

ASORA  thus treats offenders not much differently than the  state

treats  probationers  and  parolees subject  to  continued  state

supervision.   In short, it treats them as though  they  did  not

satisfy  their SIS conditions, as though courts did not expressly

or  implicitly find that they were not dangerous, as though their

convictions were not set aside, and as though they had  not  been

ordered discharged after their convictions were set aside.

          There is also a significant difference between a public

record that continues to memorialize a conviction after it is set

aside  and  a  state-sponsored Internet site  that  displays  the

information  ASORA requires.  The difference is not  merely  that

the  state  has improved access to public information  it  had  a

legitimate right to gather at the time a defendant was convicted.

          The difference instead lies in the extent and nature of

information  to  be divulged and the offenders duty  to  keep  it

updated.   To  advance ASORAs purposes effectively, the  registry

must  include enough information to enable the public  to  reduce

the  danger  registrants are assumed to  pose.   ASORA  therefore

requires a sex offender to disclose and update extensive personal

information.    Much  of  this  information  was  not   otherwise

available to the public or the state when the conviction was  set

aside  and  much  would not otherwise be presently  available  to

either  the  public or the state.  Most of the information  about

Doe that was to have been published in the ASORA registry was not

in the public record when Doe was convicted or when the court set

aside his conviction and ordered him discharged.

          Because   ASORA   compels  affirmative   post-discharge

conduct  under  threat of prosecution, because  this  conduct  is

equivalent to that often required by criminal judgments,  because

this  sort  of conduct could not be compelled absent  a  criminal

adjudication or its equivalent, because the conviction (since set

aside)  is the event that triggers these duties, and because  the

requirement impairs ones post-set-aside freedom to be let  alone,

we  conclude that it violates Does liberty interests75 to require

him  to  register under ASORA after the court found that Doe  had

satisfied the requirements of his SIS and was entitled to a  set-

aside,  and then set aside his conviction, all before  ASORA  was


          We  also  conclude  that  the  potentially  destructive

practical consequences that flow from registration and widespread

governmental distribution of disclosed information  establish the

gravity of this violation.  Several sex offenders on the registry

filed  affidavits  in support of Doe in this  litigation  stating

that  they  had  lost  their  jobs, been  forced  to  move  their

residences,   and   received  threats  of  violence   since   the

establishment of the registry, even though their convictions  had

always  been  a  matter of public record.  Outside Alaska,  there

have  been  incidents  of  suicide by, and  vigilantism  against,

          offenders on state registries,76 and offenders listed on

registries  often  have unique difficulties  locating  places  to

reside  and work.  Offenders are sometimes subjected to  protests

and  group actions designed to force them out of their  jobs  and

homes.77    Courts   have  also  noted  these   serious   adverse


          In  short,  we hold that applying ASORA to Doe  burdens

his   fundamental  liberty  interests  and  right  to  procedural

fairness  arising out of the set-aside granted him in 1994,  such

that the state must establish a compelling governmental interest.

          4.   Whether  the  states  interest  in  applying   the
               statute  to  pre-ASORA  set-aside  recipients   is
          Having  determined that application  of  ASORA  burdens

Does fundamental liberty and procedural interests, we must decide

whether  the  state  has  demonstrated a compelling  governmental

interest  in restricting those interests.79  We are mindful  that

before  a persons conviction for a sex offense can be set  aside,

he  or  she necessarily must have been convicted of that offense.

When  the  legislature enacted ASORA, it found that sex offenders

pose a high risk of reoffending after release from custody.80

          Because  a  lawfully entered set-aside order marks  the

termination of a formal judicial proceeding between the state and

the  defendant,  it operates as a final judgment: it  establishes

the  parties  mutual rights and obligations, and  it  binds  both

parties to its terms.  Although a set-aside order does not  erase

the reality of the former conviction, or entitle the defendant to

proclaim  his innocence,81 it does bar the state from  using  the

conviction or the underlying misconduct as grounds for compelling

the  defendant to act as though he remains convicted,  has  never

been rehabilitated, and continues to pose a public danger.82

          Once  final,  then,  a set-aside order  operates  as  a

binding,  case-specific determination that the charges underlying

the  conviction that was set aside no longer support an inference

of public danger.  A defendant who earns and receives a final set-

          aside order can reasonably expect that this determination will be

honored  by  the  state and given effect.  A  defendant  who  has

satisfied  his SIS conditions and whose conviction was set  aside

by  a  final  order  entered  before  ASORA  became  specifically

applicable  to   convictions that have  been  set  aside  has  an

enforceable procedural right in the set-aside orders meaning  and

terms.   The state therefore may not alter or ignore them without

heeding  the  requirements of procedural  fairness  traditionally

imposed  on  a party constrained by a judgment: prior notice,  an

opportunity  to  cross-examine and defend,  and  a  case-specific

showing  of compelling circumstances warranting relief  from  the


          There  is  no  legitimate  reason  to  think  that  Doe

presents   such   a   danger  that  the   states   post-set-aside

interference with his liberty interests is justified.  Absent the

likelihood  Doe  will  commit  new  sex  offenses,  there  is  no

compelling government interest in requiring Doe to do the  things

ASORA demands.  Given ASORAs burden on Does liberty interests and

its  interference with his settled expectations, we conclude that

the  Alaska  Constitutions guarantee of due process prevents  the

state  from contradicting the judgment of the superior court  and

requiring Doe to satisfy ASORA.

          Because  we decide that applying ASORA to Doe  violates

his due process rights, we do not reach Does other arguments.84


          Because applying ASORA to a person whose conviction was

set  aside  under  AS 12.55.085 before ASORA became  specifically

applicable  to convictions that were set aside unconstitutionally

interferes with the individuals liberty interests and because the

state  has failed to establish that this application is justified

by  a  compelling governmental interest, we REVERSE the  judgment

that  upheld ASORA as applied to Doe and REMAND for entry  of  an

order  enjoining  the  state  from publishing  Does  registration

information and requiring the state to return all information Doe

provided when he registered under protest.

MATTHEWS, Justice, concurring.

          My  primary reasons for reversing the decision  of  the

superior  court  can be summarized as follows.  The  SIS  program

offers  a  promise  to  participating  defendants  that  in  most

respects  they  will  not  be  treated  as  convicted  criminals.

Defendants can accept this offer by complying with the conditions

imposed by the program.  When so accepted, the program creates  a

legally  protected interest.  The ASORA registration  requirement

treats  those who have had their convictions set aside under  the

program  as  convicted criminals, and does so in  a  particularly

invasive  and socially and economically disabling way.   It  thus

substantially breaches the bargain implicit in the  SIS  program.

This   is   fundamentally   unfair   and   violates   the   state

constitutional  guarantee of due process.   The  opinion  of  the

court encompasses this rationale and I join in it.

          It  seems  useful to discuss briefly the issue  of  the

time  parameters  of  the cases to which this rationale  applies.

Clearly  it does not apply to judgments suspending the imposition

of  sentences entered after ASORA was explicitly made  applicable

to  convictions set aside under the SIS program.1  The defendants

in  this  category have notice when they begin to participate  in

the  program  that  they  will not be exempt  from  registration.

There is thus no breach of a state promise and no special element

of  unfairness.   Just  as  clearly, cases  in  which  set-asides

occurred before ASORA was explicitly made applicable to SIS cases

should  be  held to be exempt from registration.  In  such  cases

defendants  gave  full  performance in  reliance  on  the  states

promise,  and  a  set-aside was entered.   I  believe  that  this

rationale also should apply to cases where defendants have  fully

or  substantially performed the conditions imposed on them by the

program  before ASORA was made applicable to SIS cases,  even  if

the  set-aside order was entered after that time.  The  important

thing  in  such cases is that the defendants have acted with  the

justified expectation that in most respects they will be  treated

as  though  they were never convicted.  It would be as unfair  to

          apply ASORA to them as to defendants whose convictions were set

aside  before ASORA was made applicable to SIS cases.  A  similar

rationale might apply where a guilty or nolo plea was entered  as

a plea bargain contemplating the use of the SIS program.  If such

a  plea  were  entered before ASORA applied  to  SIS  cases,  the

detrimental reliance inherent in the plea could be sufficient  to

support  an  exemption from registration  even  if  much  of  the

probation  were served after ASORA applied.  Many  of  the  views

expressed in this paragraph are not encompassed in the opinion of

the  court.  I discuss them only because they may be of some  use

in  defining  and deciding issues that will arise as  to  how  to

apply the precedent that is established today.

     1    John Doe is a pseudonym.

     2    AS 12.63.010-.100.

     3     AS  12.55.085  gives courts authority to  suspend  the
imposition  of  sentence.   At  Does  1989  sentencing   hearing,
Superior  Court Judge pro tem. Jane F. Kauvar, reading a  passage
in the presentence report to say that Doe had been offered an SIS
before trial, announced an intention to consider an SIS.  A  1988
amendment to AS 12.55.085 prohibited suspending the imposition of
sentences  of persons convicted of certain crimes, including  sex
offenses.   Ch.  36,  2, SLA 1988 (codified as AS  12.55.085(f)).
The  court  reasoned that it was appropriate to give Doe  an  SIS
because  there would have been no question about Does eligibility
for  an  SIS for his 1987 offense had he been sentenced  earlier,
before  the  amendment took effect.  The prosecutor  brought  the
amendment  to  the  courts attention, but did  not  unequivocally
argue that an SIS would be illegal.  After the court granted  the
SIS,  the  prosecutor raised no objection.   The  state  did  not
appeal the SIS.  After Does probation expired in 1994, the  state
filed  its written non-opposition to setting aside the conviction
and  did  not argue that the 1988 amendment prevented  the  court
from setting Does conviction aside.

     4     Ch.  41,   4,  SLA  1994 (codified as  AS  12.63.010).
Following  amendment  in  1999, ASORA  defines  sex  offender  as
follows:    sex  offender  or  child  kidnapper  means  a  person
convicted of a sex offense or child kidnapping in this  state  or
another   jurisdiction  regardless  of  whether  the   conviction
occurred before, after, or on January 1, 1999.  AS 12.63.100(5).

          ASORA defines sex offense as follows:

          (6)  sex offense means
               (A)   a  crime under AS 11.41.100(a)(3),
          or  a similar law of another jurisdiction, in
          which  the  person committed or attempted  to
          commit a sexual offense, or a similar offense
          under the laws of the other jurisdiction;  in
          this  subparagraph, sexual  offense  has  the
          meaning given in AS 11.41.100(a)(3);
               (B)   a  crime under AS 11.41.110(a)(3),
          or  a similar law of another jurisdiction, in
          which  the  person committed or attempted  to
          commit  one  of the following  crimes,  or  a
          similar law of another jurisdiction:
               (i)  sexual assault in the first degree;
               (ii) sexual   assault  in   the   second
               (iii)     sexual abuse of a minor in the
          first degree; or
               (iv)  sexual  abuse of a  minor  in  the
          second degree;
               (C)     a    crime,   or   an   attempt,
          solicitation,  or  conspiracy  to  commit   a
          crime,  under  the following  statutes  or  a
          similar law of another jurisdiction:
               (i)  AS 11.41.410-11.41.438;
               (ii) AS 11.41.440(a)(2);
               (iii)     AS 11.41.450-11.41.458;
               (iv)   AS   11.41.460  if  the  indecent
          exposure is before a person under 16 years of
          age   and   the  offender  has   a   previous
          conviction for that offense;
               (v)  AS 11.61.125 or 11.61.127;
               (vi) AS 11.66.110 or 11.66.130(a)(2)  if
          the  person  who  was induced  or  caused  to
          engage in prostitution was 16 or 17 years  of
          age at the time of the offense; or
               (vii)      former  AS 11.15.120,  former
          11.15.134,  or  assault with  the  intent  to
          commit rape under former AS 11.15.160, former
          AS 11.40.110, or former 11.40.200 . . . .
AS 12.63.100(6).

     5    Ch. 41, SLA 1994.

     6    AS 12.63.010.

     7    AS 18.65.087.

     8     Wayne  A.  Logan, Liberty Interests in the  Preventive
State:   Procedural  Due  Process  and  Sex  Offender   Community
Notification  Laws,  89  J.  Crim. L. &  Criminology  1167,  1172
(1999).   In  1994 the United States Congress enacted  the  Jacob
Wetterling Crimes Against Children and Sexually Violent  Offender
Registration  Program,  42 U.S.C.  14071  (1994  &  2003).   This
legislation  obligated  every  state  to  enact  a  sex  offender
registration   program  at  least  meeting   minimum   guidelines
specified  by the United States Attorney General or  forfeit  ten
percent  of  a  federal funding grant for  law  enforcement.   42
U.S.C.  14071(g)(2)(A).

     9     See Smith v. Doe, 538 U.S. 84, 89 (2003); Logan, supra
note 8, at 1172.

     10    AS 12.63.010(b)(1)(A)-(H).

     11    AS 12.63.010(b)(2).

     12    AS 12.63.010(d)(1).

     13    AS 18.65.087(b).

     14     See  Alaska  Dept.  of Public  Safety,  Sex  Offender
Registration            Central           Registry,            at

     15    13 Alaska Administrative Code (AAC) 09.900(a)(2) (1996)
(am. 11/3/99).

     16     Chapter  54,  section 15, SLA 1999,  codified  as  AS
12.63.100(3), provides:

          conviction means that an adult, or a juvenile
          charged  as  an  adult under AS  47.12  or  a
          similar  procedure  in another  jurisdiction,
          has  entered  a  plea of guilty,  guilty  but
          mentally ill, or nolo contendere, or has been
          found guilty or guilty but mentally ill by  a
          court  or  jury,  of a sex offense  or  child
          kidnapping regardless of whether the judgment
          was set aside under AS 12.55.085 or a similar
          procedure in another jurisdiction or was  the
          subject   of  a  pardon  or  other  executive
          clemency;  conviction  does  not  include   a
          judgment that has been reversed or vacated by
          a court.
     17     See AS 11.56.840 (defining failure to register  under
ASORA  as  class  A  misdemeanor).   Class  A  misdemeanors   are
punishable by up to one year in jail and by a fine up to $10,000.
See AS 12.55.135(a), .035(b)(5).

     18     AS 18.65.087 authorizes the department to maintain  a
central registry of all sex offenders required to register and to
promulgate  and adopt regulations necessary to effectuate  ASORAs
purpose.   As  noted  above, the legislature  in  1999  redefined
conviction  to  include  a judgment . .  .  set  aside  under  AS
12.55.085.  AS 12.63.100(3)  (1999).

     19    State v. Otness, 986 P.2d 890, 892 (Alaska App. 1999).

     20    Patterson v. State, 985 P.2d 1007 (Alaska App. 1999).

     21    Id. at 1011-18.

     22    Boone v. Gipson, 920 P.2d 746, 748 (Alaska 1996).

     23    Todd v. State, 917 P.2d 674, 677 (Alaska 1996).

     24     Smith v. Doe, 538 U.S. 84 (2003); Connecticut Dept of
Pub. Safety v. Doe, 538 U.S. 1 (2003).

     25    Smith v. Doe, 538 U.S. 84 (2003).  The Doe in the case
now before us is not one of the two Does in Smith.

     26    Doe v. Otte, 259 F.3d 979 (9th Cir. 2001).

     27    Smith, 538 U.S. at 106.

     28     Connecticut Dept of Pub. Safety v. Doe,  538  U.S.  1

     29    Doe v. Dept of Pub. Safety ex rel. Lee, 271 F.3d 38, 62
(2d Cir. 2001).

     30    Connecticut Dept of Pub. Safety, 538 U.S. at 7-8.

     31     Doe  v.  Tandeske, 361 F.3d 594 (9th Cir. 2004)  (per

     32     Doe  v. Otte, 259 F.3d 979 (9th Cir. 2001),  was  the
Ninth  Circuits first decision considering the claims of two  Doe
parties, neither of whom is the Doe in the case we decide  today.
On  certiorari, the case became Smith v. Doe, 538  U.S.  84.   On
remand, the case became Doe v. Tandeske, 361 F.3d 594.

     33     Tandeske, 361 F.3d at 596 (citing Connecticut Dept of
Pub. Safety, 538 U.S. at 7-8).

     34    Id. at 597 (citing Smith, 538 U.S. at 102).

     35    Doe v. Otte, 259 F.3d at 983.

     36     See  Mullaney  v. Wilbur, 421 U.S.  684,  691  (1975)
([S]tate courts are the ultimate expositors of state law.).

     37    See Michigan v. Long, 463 U.S. 1032, 1041 (1983) ([W]e
will  not  review judgments of state courts that rest on adequate
and independent state grounds.); Stephan v. State, 711 P.2d 1156,
1160 (Alaska 1985).

     38     Stephan,  711  P.2d  at 1160 ([W]e  construe  Alaskas
constitutional provision . . . as affording rights  beyond  those
guaranteed by the United States Constitution.); Burnor v.  State,
829 P.2d 837, 839 (Alaska App. 1992).

     39     Todd v. State, 917 P.2d 674, 681 (Alaska 1996)  (This
court is free to interpret the state constitutional provision  as
it sees fit, so long as the interpretation does not undermine the
minimum  protections  established by the  United  States  Supreme
Court  in  decisions  interpreting  the  federal  constitution.);
Swanner  v.  Anchorage Equal Rights Commn, 874 P.2d  274,  280-81
(Alaska 1994) (explaining that although free exercise of religion
clauses  of Alaska and United States Constitutions are identical,
this   court  is  not  bound  by  United  States  Supreme   Court
interpretation of federal free exercise clause and  instead  this
court  may  provide greater protection to the  free  exercise  of
religion under the state constitution than is now provided  under
the United States Constitution); Blue v. State, 558 P.2d 636, 641
(Alaska  1977)  ([T]he Alaska Supreme Court  is  not  limited  by
decisions  of  the United States Supreme Court or by  the  United
States  Constitution when interpreting its state  constitution.);
Bush v. Reid, 516 P.2d 1215, 1219-20 (Alaska 1973); Baker v. City
of  Fairbanks, 471 P.2d 386, 402 n.26 (Alaska 1970);  Roberts  v.
State, 458 P.2d 340, 342 (Alaska 1969).

     40     Baker, 471 P.2d at 401; see also Valley Hosp. Assn v.
Mat-Su  Coalition  for Choice, 948 P.2d 963,  967  (Alaska  1997)
([O]ur  articulation  of  the protection of  reproductive  rights
under Alaskas constitution may be broader than the minimum set by
the  federal constitution.); Shagloak v. State, 597 P.2d 142, 145
n.14  (Alaska 1979) (A state supreme court is not limited by  the
decisions  of the United States Supreme Court or by  the  federal
constitution  when  interpreting  the  provisions  of  the  state
constitution,  since the latter may have broader safeguards  than
the  minimum federal standards.); Lemon v. State, 514 P.2d  1151,
1154 n.5 (Alaska 1973) (explaining that this court may adopt  own
interpretations  of  Alaska Constitution  as  long  as  it  meets
minimum   standards   set   by  United   States   Supreme   Court
interpretations of Federal Constitution).

     41    Breese v. Smith, 501 P.2d 159, 168 (Alaska 1972).

     42    Sampson v. State, 31 P.3d 88, 91 (Alaska 2001).

     43     Id. (citing Valley Hosp. Assn, 948 P.2d at 969; Ravin
v. State, 537 P.2d 494, 497-98 (Alaska 1975)).

     44    AS 12.55.085(a) provides, in pertinent part:

          [I]f  it appears that there are circumstances
          in  mitigation of the punishment, or that the
          ends  of  justice will be served,  the  court
          may,   in   its   discretion,   suspend   the
          imposition  of the sentence . .  .  upon  the
          terms   and   conditions   that   the   court
          determines,  and shall place  the  person  on
          probation,  under the charge and  supervision
          of the probation officer . . . .
     45    AS 12.55.085(a).

     46    AS 12.55.085(e).  No known legislative history explains
the  origins of set aside.  Alaska Criminal Rule 35.2  implements
AS 12.55.085(e).

     47    See Wickham v. State, 844 P.2d 1140, 1143 (Alaska App.

     48    At the 1989 SIS hearing, the superior court said:

          I  feel  very  comfortable in saying  that  I
          think it is a minimal offense, because of the
          fact   that  even  by  [the  victims]   worst
          allegation, it was a brief incident.  .  .  .
          Id  say that it is mitigated by the fact that
          I  think  you are not somebody who  otherwise
          commits  offenses. . . .  I think  that  your
          basic  personality, of wanting  to  do  whats
          right, and not wanting to do whats wrong, . .
          .  will  keep you from getting back  in  this
          position  .  . . .  I still think  that  your
          basic  personality, and your  basic  lack  of
          interest  . . . in little boys will keep  you
          I  think  it  was situational.  I  really  do
          believe  . . . it happened, but I believe  it
          was  situational.  I think it was at  a  time
          one  of the times in your life when you  were
          not  as  stable, you were moving.  You  didnt
          have  anybody you were close to at the  time.
          You didnt have a serious relationship at that
          time,  and I think those things have  changed
          since  when  this  incident happened,  and  I
          think that with the stability offered by  all
          the people here in the back of the courtroom,
          and  your wife and daughter, I hope you  will
          not  be back in this situation, but I do feel
          at  the  particular time that  this  happened
          that  you were not in as good a frame a  mind
          as  you  are now.  I think there  is  a  high
          probability of successful rehabilitation,  of
          you  as  a  non-criminal member  of  society,
          because   youve  never  been  a  particularly
          criminal   member,  other  than  this   brief
          moment.  As far as the necessity of isolation
          to prevent criminal conduct from you, I think
          thats  fairly low.  I dont think whether  you
          are  in jail or youre out of jail that  there
          [are]   kids   on   the   street   that   are
          particularly in danger of you coming  up  and
          doing something to them.
     49    See, e.g., AS 11.46.130(a)(6) (defining theft in second
degree  as occurring when person commits theft under AS 11.46.100
and  the value of the property is $50 or more but less than  $500
and within the preceding five years the person has been convicted
and  sentenced  [for  another crime of  theft]  on  two  or  more
separate  occasions  in  this or another  jurisdiction  (emphasis

     50    Barrett v. State, 772 P.2d 559, 575 (Alaska App. 1989).

     51    AS 11.61.200(a)(1), (b)(1)(B).

     52     Wickham  v. State, 844 P.2d 1140, 1144  (Alaska  App.

     53    State v. Mekiana, 726 P.2d 189, 193 (Alaska 1986).

     54     Wickham  v. State, 844 P.2d 1140, 1144  (Alaska  App.

     55    Id. at 1143.

     56    Id. at 1144.

     57     State  v.  Otness, 986 P.2d 890,  894  (Alaska  1999)
(Coats, C.J., dissenting).

     58     Spenard  Action  Comm. v. Lot 3, Block  1,  Evergreen
Subdiv., 902 P.2d 766, 779 n.23 (Alaska 1995).

     59     See Petersen v. State, 930 P.2d 414, 437 (Alaska App.
1996); Larson v. State, 688 P.2d 592, 597 (Alaska App. 1984); see
also Journey v. State, 895 P.2d 955,  959 (Alaska 1995).

          AS 12.55.155 provides, in pertinent part:

          (c)    The   following   factors   shall   be
          considered  by the sentencing court  and  may
          aggravate the presumptive terms set out in AS
               . . . .
               (8)    the   defendants  prior  criminal
          history includes conduct involving aggravated
          or repeated instances of assaultive behavior.
               . . . .
               (21)   the   defendant  has  a  criminal
          history  of  repeated  instances  of  conduct
          violative    of   criminal   laws,    whether
          punishable   as   felonies  or  misdemeanors,
          similar  in nature to the offense  for  which
          the  defendant is being sentenced under  this
     60     Journey, 895 P.2d at 959 (holding that granting  set-
aside  does not require expunction of criminal record and  noting
that  conviction  that  was set aside  can  be  used  in  limited
circumstances,  such  as  to  increase  sentence  for  subsequent

     61    Id.

     62    Any information contained in a pre-sentence report is,
by rule, confidential.  Alaska R. Crim. P. 32.1(b)(3).

     63     We  summarized in Part II the information ASORA makes

     64    AS 12.55.085(a).

     65     Wickham  v. State, 844 P.2d 1140, 1144  (Alaska  App.

     66    Even before Doe satisfied the conditions, a reasonable
reliance  interest  was  created  by  the  entry  of  the   order
suspending  imposition of the sentence taken together  with  Does
undertaking to satisfy the conditions.

     67    Breese, 501 P.2d at 168.

     68     When ASORA was enacted in 1994, it did not state that
it  applies  to  persons whose convictions were set  aside.   The
Department  of  Public Safety promulgated a  regulation  in  1995
defining  conviction to apply to convictions that  had  been  set
aside.   13  AAC  09.900(a)(2).  In 1999 the legislature  amended
ASORA to the same effect.  Ch. 54,  15, SLA 1999.  See supra note

     69    AS 12.63.010.

     70    Id.

     71    AS 12.63.020.

     72    AS 18.65.087.

     73    Ch. 41,  1, SLA 1994.

     74    AS 11.56.840 (defining failure to register under ASORA
as  class A misdemeanor).  Class A misdemeanors are punishable by
up  to  one  year  in jail and by a fine up to $10,000.   See  AS
12.55.135(a), .035(b)(5).

     75     See,  e.g., Smith v. State, Dept of Corr.,  872  P.2d
1218, 1222 (Alaska 1994) (finding liberty interest in right to be
free  from inappropriate conditions of parole  those which unduly
interfere with a parolees personal and property rights).

     76     See  Logan, supra note 8, at 1176 n.45 (citing Robert
Hanley,  Shots Fired at the House of a Rapist, N.Y.  Times,  June
17,  1998,  at  B1 (vigilantism); Todd S. Purdum,  Death  of  Sex
Offender is Tied to Megans Law, N.Y. Times, July 9, 1998, at  A16
(suicide); Convicted Rapist Is Shot At, N.Y. Times, July 1, 1998,
at B1 (vigilantism); Suicide is Recalled as Maine Revisits Megans
Law, Wash. Post, Feb. 17, 1998, at A2 (suicide)).

     77     One  commentator has noted several examples of  this,

          John T. McQuiston, Sex Offender Is Suing  His
          Neighbors Over Protests, N.Y. Times, June 20,
          1997,  at  B1 (describing rallies  staged  to
          protest  registrants  presence,  throwing  of
          brick  through his car window, and  harassing
          calls to his employer); Lisa Sink, Long After
          Release  Date,  Man Still  Lives  in  Prison,
          Milwaukee  J. Sentinel, June 1,  1999,  at  1
          (describing inability of registrant  to  find
          residence  fifteen  months  after   date   of
          mandatory release); Convicted Child  Molester
          Loses Job, L.A. Daily News, Jan. 16, 1997, at
          N10  (describing  how registrant  was  forced
          from   his  job);  Parents  Protest  to  Oust
          Molester  from  Community: Neighbors  Collect
          Signatures on Petitions, Sacramento Bee, July
          8,  1997,  at  B3  (recounting  neighborhoods
          efforts  to drive out registrant); cf.  Henry
          Gottlieb,  Fighting  a  Local  Ban   on   Sex
          Criminals,  Natl L.J., May 17,  1999,  at  A7
          (discussing   lawsuit  filed   by   homeowner
          against  homeowners  association  bylaw  that
          bars residency to registrants).
Logan, supra note 8, at 1176 n.45.

     78     Doe  v.  Pataki, 120 F.3d 1263, 1279 (2d  Cir.  1997)
(noting  registration has had unfortunate consequences  for  many
subject to its operation); E.B. v. Verniero, 119 F.3d 1077, 1088-
90  (3d  Cir.  1997) (describing incidents of harassment  in  New
Jersey,  Washington, and Oregon); Russell v. Gregoire,  124  F.3d
1079,  1092  (9th  Cir. 1997) (observing that [n]otification  may
well   subject  offenders  to  humiliation,  public   opprobrium,
ostracism, and the loss of job opportunities).

     79    Sampson v. State, 31 P.3d 88, 91 (Alaska 2001).

     80    Ch. 41,  1, SLA 1994.

     81    See Journey v. State, 895 P.2d 955, 959 (Alaska 1995).

     82    Implicitly recognizing that a set-aside order reflects
more   on   the   defendants  success  in  complying   with   the
rehabilitative efforts required by the conditions of his SIS than
it  does  on his innocence of the underlying misconduct, we  have
held  that a set-aside does not prohibit the state from  allowing
public  access  to  records documenting the  defendants  original
conviction and underlying offense.  See Journey, 895 P.2d at 959.
Nor does a set-aside order preclude the state from considering  a
former  conviction  and  the underlying conduct  to  be  relevant
information when imposing new criminal or civil sanctions  for  a
new  offense  that clouds the earlier finding of  rehabilitation.
See  Larson  v.  State,  688 P.2d 592,  597  (Alaska  App.  1984)
(concluding  that prior conviction that was set  aside  does  not
trigger higher presumptive term for later offense, but conviction
that  was  set  aside  and related facts  may  be  considered  as
aggravating factors).

     83    These requirements are rooted in the constitutions due
process   clause   and  inhere  in  a  final   judgment.    These
requirements consequently limit state action with respect to  the
subject  of  that judgment regardless of whether the  state  acts
through  its executive or legislative branch.  We recognize  that
the  legislature  has broad authority to take prospective  action
redefining  the  availability and effects of SISs  and  set-aside
orders.  But Does SIS conviction and set-side order both predated
the date when ASORA became specifically applicable to convictions
that were set aside.  It is therefore not necessary to decide  in
this  case whether these requirements would apply to an  offender
who  was  granted an SIS conviction before that date,  but  whose
conviction was set aside after that date.  We express no view  on
this  issue.   To  the extent that Patterson v. State,  985  P.2d
1007,  1017 (Alaska App. 1999), is inconsistent with our  holding
here or might be read as resolving the issue we leave open above,
it is overruled.

          Because  Does  conviction  and  set-aside  order   both
predated the effective dates of both the 1995 regulation and  the
1999  amendment which redefined conviction to include convictions
that were set aside, it is not necessary in this case to consider
whether the regulation was valid.

     84     We  limit  our holding to set-aside recipients  whose
SISs  were  entered  under  AS 12.55.085  or  statutes  of  other
jurisdictions whose provisions also require a substantial showing
of  rehabilitation.  See Wickham v. State, 844 P.2d 1140  (Alaska
App.  1993)  (noting  federal  cases  applying  Federal  Rule  of
Evidence  609(c) that turn on whether states set-aside procedures
require affirmative finding of defendants rehabilitation).

1     ASORA  was  first made applicable to SIS convictions  by  a
regulation  promulgated  in 1995.  The  effective  date  of  this
regulation   thus  will  be  the  critical  date  governing   the
application  of the precedent established by the opinion  of  the
court   assuming  the  regulation  was  authorized  and   validly