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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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JOHN DOE, )
) Supreme Court No. S-10338
Appellant, )
) Superior Court No. 4FA-97-2343
CI
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.
I. INTRODUCTION
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.
II. FACTS AND PROCEEDINGS
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 12.55.085.15 In 1999 the
legislature amended ASORAs statutory definition of conviction to
include judgments that had been set aside under AS 12.55.085.16
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.
III. DISCUSSION
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
Constitution.
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
conviction
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 12.55.085.51 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
609(d)(2).52
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
probation.[53]
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
public.63
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
disclose.
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
reoffense.
(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
interests
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
information.72
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
effective.
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
enacted.
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
consequences.78
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
compelling
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
judgment.83
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
IV. CONCLUSION
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
degree;
(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
http://www.dps.state.ak.us/nSorcr/asp/.
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
(2003).
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
curiam).
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.
1993).
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
added)).
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.
1993).
53 State v. Mekiana, 726 P.2d 189, 193 (Alaska 1986).
54 Wickham v. State, 844 P.2d 1140, 1144 (Alaska App.
1993).
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
12.55.125:
. . . .
(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
section.
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
crime).
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
public.
64 AS 12.55.085(a).
65 Wickham v. State, 844 P.2d 1140, 1144 (Alaska App.
1993).
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
16.
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,
citing:
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
promulgated.
