Opinion
Court of Appeals No. A-9236, No. 5079.
June 14, 2006.
Appeal from the Superior Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge. Trial Court No. 3PA-92-294 CR.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellant.
A. Lee Petersen, Petersen Professional Corp., Willow, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Thomas L. Beltz was convicted of sexual abuse of a minor in the first degree in 1997. The Alaska Sex Offender Registration Act (ASORA) required Beltz to register as a sex offender because of this conviction. At his sentencing, however, Beltz argued that because his offense occurred before the passage of ASORA, requiring him to register would violate the prohibition against ex post facto laws under both the Alaska and the United States Constitutions. Superior Court Judge Beverly W. Cutler agreed with Beltz's argument. She accordingly ruled that Beltz's judgment would not contain notice that Beltz needed to register as a sex offender.
AS 12.63.
With the benefit of hindsight, it is now clear that Judge Cutler's 1997 order in Beltz's case was incorrect. In 1999, this court held that ASORA did not violate the state or federal constitutional provisions prohibiting ex post facto laws when applied to defendants who committed their crimes before the effective date of the law. Patterson v. State, 985 P.2d 1007, 1013 (Alaska App. 1999). In 2003, the United States Supreme Court held that the Act did not violate the federal ex post facto prohibition. Smith v. Doe, 538 U.S. 84, 105-06, 123 S. Ct. 1140, 1154, 155 L. Ed. 2d 164 (2003). Beltz, however, has insisted that Judge Cutler's order, which was not appealed by the State, is binding on the State and exempts him from having to comply with ASORA.
Based on Patterson and Smith, beginning in September of 2004, the State filed a series of pleadings asking the trial court to vacate its earlier order and enter an order requiring Beltz to comply with ASORA. Judge Cutler denied the State's request. The State now appeals Judge Cutler's refusal to vacate her earlier order. We conclude that Judge Cutler erred to the extent that she failed to grant prospective recision of that order.
Why we conclude that we have jurisdiction to decide this appeal
The jurisdiction of this court is defined by statute. Alaska Statute 22.07.020 provides that we have appellate jurisdiction "in actions and proceedings commenced in the superior court involving . . . criminal prosecution [and] probation and parole." Beltz suggests that the jurisdiction of this court is "questionable" and suggests that the State should be required to file an independent civil action. We disagree. The history of this litigation shows that the order in question in this case arose directly from Beltz's criminal case.
Following his conviction, Beltz filed a memorandum in which he pointed out that the probation officer had recommended that the court, as part of the judgment and commitment form in Beltz's case, notify Beltz that he must register as a sex offender. Beltz pointed out that ASORA became effective August 10, 1994. But Beltz's offense was alleged to have been committed in approximately 1991. He argued that requiring him to register as a sex offender constituted additional punishment for his crime, a punishment which was not available at the time his crime was committed. He argued that ASORA, as applied to him, was an ex post facto law. Beltz argued that, because the requirement to register constituted an ex post facto law, the court should not give notice as part of the judgment. In response, the State argued that the issue of whether Beltz needed to register would not arise until his release from confinement, and therefore, the court should not decide the issue at that time.
In her ruling, Judge Cutler concluded that the criminal rules required her to give Beltz notice of the sex offender registration requirement. She concluded that the requirement was "analogous to a court[-]imposed condition of probation" and therefore was a matter she must address as a sentencing court. She concluded that ASORA was an ex post facto law as it applied to Beltz. She accordingly entered an order stating that Beltz would not be given notice to register as a sex offender.
The history of this case makes it clear that Judge Cutler's order was an order that she entered as a sentencing judge as part of Beltz's criminal case. Accordingly, we have jurisdiction to review her order.
Why we conclude that Judge Cutler's order must be vacated
When she entered her order, Judge Cutler concluded that requiring Beltz to register as a sex offender constituted punishment for his crime. She concluded that because ASORA was enacted after Beltz's crime, application of the act to him would violate the ex post facto clauses of the United States and Alaska Constitutions. At the time that she entered her order, Judge Cutler's position was debatable. In fact, the Ninth Circuit Court of Appeals subsequently held that ASORA's registration requirements constituted punishment and therefore violated the ex post facto clause when applied to defendants who committed their crimes before the effective date of the act. But the United States Supreme Court overruled the Ninth Circuit in Smith v. Doe, concluding that ASORA was a "civil regulatory scheme" which did not constitute punishment for a crime. Therefore, with legal hindsight, Judge Cutler's order was in error.
Doe I v. Otte, 259 F.3d 979, 995 (9th Cir. 2001).
Beltz, however, argues that Judge Cutler's earlier order should exempt him from ever having to register as a sex offender. He argues that because the State never appealed Judge Cutler's order, he was entitled to rely on that order to prevent the State from requiring him to register as a sex offender.
First, as a practical matter, Judge Cutler never ruled that Beltz did not have to register as a sex offender under ASORA. In his motion, Beltz asked the court to not give notice, as part of the judgment and commitment form, that he had to register as a sex offender. Judge Cutler's order merely granted Beltz's request: she stated that she would not give notice on the judgment and commitment that Beltz had to register as a sex offender. The order did not purport to exempt Beltz from having to comply with ASORA, although it provided a basis for this argument. But as the State recognized in its 1997 opposition to Beltz's motion, and as Judge Cutler appeared to recognize in entering her order, subsequent litigation would ultimately resolve whether Beltz had to register under ASORA. The narrow issue in Beltz's case, at the time Judge Cutler entered her order, was whether she erred in failing to require that the judgment in Beltz's case provide notice that he was required to register as a sex offender. Therefore, the fact that the State did not appeal and that this litigation did not take place in Beltz's case is not surprising.
Beltz, of course, has argued that Judge Cutler's order is an ultimate determination that ASORA is, as applied to him, an ex post facto law. And he argues that since the State did not appeal from that order, he is entitled to rely on the order to refuse to register under ASORA. But even if we interpret Judge Cutler's order as Beltz suggests, subsequent legal developments have made it clear that Judge Cutler had no authority to enter such an order. In Herreid v. State, we stated:
69 P.3d 507 (Alaska App. 2003).
Because the Sex Offender Registration Act is a regulatory measure, the registration and reporting requirements imposed by the Act are not part of a defendant's sentence. A sentencing court has no power to exempt a defendant from the requirements of the Act . . . [.]Conclusion
Id. (citation omitted).
We accordingly conclude that the superior court's decision of April 2005 must be REVERSED. The superior court's order of August 1997 should be prospectively RESCINDED. Beltz is required to comply with ASORA.
I write separately to more fully explain my analysis of Beltz's arguments that (1) this Court has no jurisdiction to hear this appeal, and that (2) the State's request for relief is barred by the doctrine of res judicata.
Does this Court have jurisdiction to hear this appeal?
This Court is a creation of the legislature, and our jurisdiction is defined by statute. Our jurisdictional statute, AS 22.07.020, declares (in pertinent part) that we have appellate jurisdiction "in [all] actions and proceedings commenced in the superior court involving . . . criminal prosecution [and] probation and parole".
Higgins v. Briggs, 876 P.2d 539, 540 (Alaska App. 1994).
Beltz suggests that litigation concerning sex offender registration is civil in nature rather than criminal — and that, therefore, the State should be directed to return to the superior court and file a civil lawsuit, with any resulting appeal going to the supreme court rather than to this Court.
Sex offender registration is a civil regulatory requirement, not a criminal punishment. This Court has held that, because sex offender registration is not part of a defendant's sentence, a sentencing court has no power to exempt a defendant from the registration requirement.
Smith v. Doe, 538 U.S. 84, 105-06; 123 S.Ct. 1140, 1154; 155 L.Ed.2d 164 (2003); Patterson v. State, 985 P.2d 1007, 1012-13 (Alaska App. 1999).
Herreid v. State, 69 P.3d 507, 508 (Alaska App. 2003).
Nevertheless, that is exactly what happened in Beltz's case in 1997. At that time, it was unclear whether sex offender registration would be treated as a "punishment" for ex post facto purposes. Superior Court Judge Beverly W. Cutler concluded that sex offender registration was punishment, and that the ex post facto clause barred the State from applying the sex offender registration law to Beltz (because his offense pre-dated the enactment of the law). Judge Cutler therefore issued an order in Beltz's criminal case declaring that Beltz was exempt from the sex offender registration requirement.
(Actually, Judge Cutler's order is worded much more narrowly: the judge simply ordered that "the notice [directing Beltz] to register as a sex offender should not be given in this case". Nevertheless, Judge Cutler and both of the parties have consistently construed her order as a continuing injunction that exempts Beltz from application of Alaska's sex offender registration law.)
In his brief to this Court, Beltz argues that (1) because sex offender registration is civil in nature, and (2) because the State is challenging an order that really functions as an injunction, and (3) because the State has challenged that order under Civil Rule 60(b), the State's litigation should be classified as "civil" rather than "criminal" — and, thus, the proper court to hear the State's appeal is the supreme court rather than this Court.
Beltz's position on this question is directly contrary to the position he took nine years ago, when he asked Judge Cutler to issue the order that exempted him from sex offender registration. At that time, Beltz argued that sex offender registration was criminal — a "penal law" — and that the application of this law to Beltz would violate the ex post facto clause. The State responded that it would not be proper for the superior court to address this issue in the context of its sentencing order in Beltz's case. Rather, the State contended, Beltz should challenge the sex offender registration requirement later, when he was released from prison (thus activating his duty to register).
Judge Cutler adopted Beltz's position on this matter. She ruled that it was proper for a sentencing court to resolve the issue of sex offender registration in the context of a sentencing order in the defendant's criminal case, since sex offender registration was "analogous to a court-imposed condition of probation".
Now Beltz argues that this characterization of the matter is wrong. He takes the position that sex offender registration is a civil matter, to be addressed in civil litigation, rather than a matter to be resolved in Beltz's underlying criminal litigation. It is ironic that Beltz, who relies on the doctrine of res judicata to argue that the State is barred from challenging the portion of Judge Cutler's order exempting Beltz from sex offender registration (see the next section of my concurrence), argues at the same time that he is not bound by the portion of Judge Cutler's order in which she ruled that, for procedural purposes, sex offender registration was "criminal" and could properly be resolved in a sentencing order in the underlying criminal case.
Fortunately for Beltz, even though the doctrine of claim preclusion ("res judicata" in the narrow sense) applies to all factual and legal issues involved in prior litigation between the parties, the doctrine of issue preclusion ("collateral estoppel") does not apply to pure issues of law — "abstract rulings of law, unmixed by any particular set of facts". Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure: Jurisdiction (Res Judicata) (2nd ed. 2002), § 4425, Vol. 18, p. 644. That is, the doctrine of issue preclusion does not apply to questions such as the proper legal characterization of sex offender registration, and whether a person's obligation to register should be litigated in a civil or criminal context.
See United States v. Moser, 266 U.S. 236, 242; 45 S.Ct. 66, 67; 69 L.Ed. 262 (1924); United States v. Alcan Aluminum Corp., 990 F.2d 711, 718-19 (2nd Cir. 1993); United States v. General Electric Co., 358 F.Supp. 731, 738-741 (S.D.N.Y. 1973).
Thus, despite the fact that Judge Cutler ruled in 1997 that the issue of sex offender registration should be litigated in the context of a defendant's criminal case, Beltz is apparently free to argue now that the issue should not be litigated this way, and that it should instead be litigated in a civil context.
However, I conclude that even if sex offender registration litigation should be deemed "civil" rather than "criminal", this does not affect this Court's jurisdiction to hear the present appeal.
As explained above, AS 22.07.020 gives this Court appellate jurisdiction over "[all] actions and proceedings commenced in the superior court involving . . . criminal prosecution". In Martin v. State, 797 P.2d 1209 (Alaska App. 1990), this Court gave a broad construction to the phrase "involving . . . criminal prosecution".
The issue in Martin was whether we had jurisdiction to hear the defendant's appeal of an order holding him in civil contempt for failing to furnish handwriting exemplars to the state troopers (pursuant to a search warrant authorizing the taking of these exemplars). The State argued that we had no jurisdiction to hear the defendant's appeal because the contempt action was civil rather than criminal. Id. at 1216-17. This Court held that, because the contempt action arose out of the criminal prosecution, and because "judicial efficiency [would] be greatly promoted" if this Court heard the appeal, "our acceptance of jurisdiction . . . appears to be consistent with the legislative intent [behind] AS 22.07.020." Id. at 1217.
Similarly, in Weidner v. State, 764 P.2d 717, 719-21 (Alaska App. 1988), this Court confirmed its jurisdiction to hear the appeal of an attorney who was subjected to civil fines for disobedience to court orders during a criminal trial.
Our decisions in Martin and Weidner can be viewed as examples of the rule identified by Judge Singleton in his concurrence in Webber v. Webber, 706 P.2d 329 (Alaska App. 1985): that when a criminal case involves civil or quasi-civil supplemental or ancillary proceedings, these proceedings "are really part and parcel" of the underlying criminal proceeding.
Webber, 706 P.2d at 333.
As was true in Martin, the litigation concerning Beltz's duty to register as a sex offender arose out of the criminal prosecution, and the issue was directly litigated in Beltz's criminal case. Moreover, judicial efficiency would clearly be promoted if this Court heard the State's present appeal, rather than sending the parties back to the superior court to relitigate these same issues in an overtly "civil" context. And, in the words of Martin, this Court's acceptance of jurisdiction over this appeal "appears to be consistent with the legislative intent [behind] AS 22.07.020."
Martin, 797 P.2d at 1217.
I accordingly conclude that, regardless of whether the correct procedural label for this litigation is "civil" or "criminal", this Court has jurisdiction to hear the State's appeal.
Does the doctrine of res judicata bar the State from challenging Judge Cutler's order exempting Beltz from sex offender registration?
As already explained, Judge Cutler issued an order in 1997 that exempted Beltz from sex offender registration. She issued this order under the premise that sex offender registration constituted a "punishment" for purposes of the ex post facto clause, and that therefore it was unconstitutional to apply the sex offender registration law to any defendant whose offense pre-dated the enactment of that law.
It is now clear that Judge Cutler's premise was wrong. Sex offender registration is not punishment, and the ex post facto clause does not forbid the State from applying Alaska's sex offender registration law to defendants whose offenses pre-date the enactment of the law. Smith v. Doe, 538 U.S. 84, 105-06; 123 S.Ct. 1140, 1154; 155 L.Ed.2d 164 (2003); Patterson v. State, 985 P.2d 1007, 1012-13 (Alaska App. 1999).
Nevertheless, Beltz continues to claim the benefit of that 1997 order. In March 2004 (that is, the year after Smith v. Doe was decided), Beltz's attorney wrote a letter to the Alaska Sex Offender Central Registry Office. In this letter, Beltz's attorney apprised the Central Registry of Judge Cutler's order exempting Beltz from sex offender registration. Beltz's attorney declared that Judge Cutler's order "remains in full force and effect", and that "[a]ny attempt by the state or any of its agents . . . to require Mr. Beltz to register as a sex offender will amount to contempt of court and [a] violation of Mr. Beltz's civil . . . rights".
(a) Procedural history of the State's attempt to have Judge Cutler vacate the 1997 order
To resolve this legal stand-off, the State filed a motion under Criminal Rule 35(a), asking Judge Cutler to rescind her order because it was illegal for her to exempt Beltz from registering as a sex offender. Beltz opposed the State's request, arguing that the doctrine of res judicata barred the State from seeking rescission of the order.
Rather than responding to the State's request directly, Judge Cutler (acting sua sponte) ordered the parties to brief the question of whether her 1997 order was part of Beltz's criminal sentence or was, instead, a civil order — and, if it was a civil order, whether it could be rescinded under Criminal Rule 35(a). (The judge apparently forgot that she had resolved this very issue in her 1997 order, when she ruled that it was proper for her to address the sex offender registration issue as part of Beltz's criminal sentence.)
The State responded that even if Criminal Rule 35(a) was not the proper method for seeking relief, Judge Cutler should nevertheless vacate her 1997 order because the order was clearly inconsistent with the law as now clarified in Smith v. Doe and Patterson v. State.
Beltz again opposed. Beltz pointed out that the State had failed to specify any provision of law giving Judge Cutler the authority to vacate her order. And Beltz argued that the State's request was foreclosed by the doctrine of issue preclusion — because the question of whether Beltz could be required to register as a sex offender was "an issue of . . . law [that was] actually litigated and determined by a final and valid judgment, [and the issue was] essential to [that] judgment".
On April 20, 2005, Judge Cutler denied the State's request to vacate the 1997 order. In her written order of April 20th, Judge Cutler noted that the State had failed to cite any procedural authority that would allow her to vacate the earlier order. The judge then suggested that the State was probably relying on Civil Rule 60(b)(4), which allows a party to seek relief from a void judgement. But Judge Cutler concluded that the State had failed to satisfy two primary requirements of Rule 60(b)(4): filing the motion within a reasonable time, and demonstrating that the prior judgement was void.
In particular, Judge Cutler declared that, even though subsequent decisions by this Court had clearly established that a sentencing judge has no power to exempt a defendant from sex offender registration, "this pronouncement does not automatically void all contrary prior decisions by sentencing courts". Judge Cutler concluded that, because her 1997 order was not void, the State had no authority to ask her to rescind it. Thus, as a practical matter, Judge Cutler ruled that Beltz remained immune from sex offender registration.
(b) My analysis of this case
Despite the fact that it is now fairly clear that sex offender registration litigation is civil, it was probably permissible for the State to rely on Criminal Rule 35(a) as a method for seeking rescission of the 1997 order in Beltz's case.
As described earlier in this opinion, when Beltz originally asked the superior court to issue an order exempting him from sex offender registration, the State argued that it would be improper to issue such an order as part of Beltz's sentence in his criminal case. Judge Cutler rejected the State's argument, ruling instead that it was proper for her to issue the order as part of Beltz's sentence because sex offender registration was analogous to a condition of probation.
Viewed in retrospect, that may have been error. But the fact remains that Judge Cutler issued the 1997 order as part of Beltz's sentence. That being so, the State was probably entitled to employ Criminal Rule 35(a) as a means for seeking prospective rescission of the order.
I say "probably" because, ultimately, this case does not turn on whether the 1997 order is properly characterized as part of Beltz's sentence or as a separate civil order. If it was part of Beltz's sentence, it could be corrected under Criminal Rule 35(a). But even if it amounted to a separate civil order, it could be corrected under Civil Rule 60(b)(5).
In her order of April 2005 (the order being appealed now), Judge Cutler suggested that the State was seeking relief under Civil Rule 60(b)(4), which allows relief from void judgements. But, given the circumstances, it is obvious that the applicable portion of Civil Rule 60(b) was subsection (5) — the subsection that authorizes a court to grant relief from a final judgement if "it is no longer equitable that the judgment should have prospective application".
The State does not argue (and has not argued) that the 1997 order was void ab initio, or that Beltz should face penalties for failing to register in the past. Rather, the State takes the position that, because it is now clear that the ex post facto clause does not limit the application of the sex offender registration law, Beltz should now be required to begin registering as a sex offender. In other words, the State is (and was) requesting that the 1997 order should have no further prospective application.
This was the request that Judge Cutler denied, and she abused her discretion in doing so.
Under Civil Rule 60(b), the State was required to bring its motion "within a reasonable time". It is true, as Judge Cutler pointed out, that the State's attempts to correct or prospectively rescind the 1997 order were initiated more than seven years after the order was issued. (The order was issued on August 26, 1997, and the State's initial motion to correct the order under Criminal Rule 35(a) was filed on September 29, 2004.) But it is unclear what difference this seven-year interval makes, given that the State was seeking only prospective rescission of the order.
The Alaska Supreme Court has held that, in cases where a party invokes Civil Rule 60(b) as a method for seeking retroactive modification or rescission of a judgement, it is important to require the moving party to challenge the judgement within a reasonable time — for otherwise, Civil Rule 60(b) might be used as a method for circumventing the time limits on the right of appeal. See Cline v. Cline, 90 P.3d 147, 154 (Alaska 2004); Burrell v. Burrell, 696 P.2d 157, 162-63 (Alaska 1984).
But when a party seeks only prospective modification or rescission of a judgement based on changed circumstances, the interval between the date of the judgement and the date of the Rule 60(b)(5) motion is seemingly irrelevant. If timeliness of the motion remains a factor, that timeliness should be measured from the date that the circumstances changed, not the date of the original judgement.
Thus, it is misleading to focus on the fact that the order in this case was originally issued in 1997. At that time, Judge Cutler's decision to exempt Beltz from sex offender registration was arguably correct. It was only after the United States Supreme Court decided Smith v. Doe in 2003 that the ex post facto issue was definitively resolved in the State's favor. It appears that the officials of the Sex Offender Central Registry notified Beltz in early 2004 that they now expected him to register as a sex offender — because Beltz's attorney wrote to the Central Registry on March 12, 2004, telling the Registry that state employees would be committing a contempt of court if they engaged in "[a]ny attempt . . . to require Mr. Beltz to register".
Six months later, on September 29th, the Palmer District Attorney's Office filed the State's initial motion to correct or prospectively rescind the 1997 order. Given this series of events, I conclude that Judge Cutler abused her discretion when she ruled that the State's motion was not filed within a reasonable time.
This leaves the question of whether the State demonstrated that it was no longer equitable to give the 1997 order prospective application. The answer to this question appears to be obvious: the 1997 order is premised on a mistaken interpretation of the law, and it extends a benefit to Beltz that he is not entitled to.
Beltz argues, however, that it would violate the doctrine of res judicata to allow the State to challenge the 1997 order. Beltz points out that, in 1997, he and the State litigated whether the ex post facto clause barred application of the sex offender registration law to Beltz. The superior court resolved that legal issue in favor of Beltz, and the State did not appeal the superior court's decision. Beltz argues that, in these circumstances, the doctrine of res judicata bars the State from relitigating this legal issue — whether in a motion under Civil Rule 60(b) or otherwise. In effect, Beltz asserts that he is entitled to unending immunity from sex offender registration because the State failed to appeal Judge Cutler's order in 1997.
As I explained earlier in this opinion, the doctrine of issue preclusion (as opposed to claim preclusion) does not apply to pure issues of law. The underlying question litigated between Beltz and the State in 1997 — the question of whether the ex post facto clause prohibits application of Alaska's sex offender registration law to an offender whose crime pre-dates the enactment of that law — is a pure issue of law. Therefore, if the present litigation between Beltz and the State could be characterized as based on a different "claim" (so that the doctrine of claim preclusion did not enter into the case), the State would be free to relitigate the ex post facto issue.
For cases applying the rule that issues of law can be relitigated if the lawsuit between the parties is based on a new claim ( e.g., a new transaction or contract), see Federal Power Commission v. Amerada Petroleum Corp., 379 U.S. 687, 690; 85 S.Ct. 632, 634; 13 L.Ed.2d 605 (1965); Meekins v. United Transportation Union, 946 F.2d 1054, 1057-58 (4th Cir. 1991); Harkins Amusement Enterprises, Inc. v. Harry Nace Co., 890 F.2d 181, 183-84 (9th Cir. 1989); International Harvester Co. v. Occupational Safety Health Review Comm'n, 628 F.2d 982, 985-86 (7th Cir. 1980); United States v. General Electric Co., 358 F.Supp. 731, 738-741 (S.D.N.Y. 1973).
At oral argument, the State suggested a theory under which the doctrine of claim preclusion might not apply to this case. The State notes that, under AS 12.63.010(d), sex offenders have either a yearly or quarterly duty to verify and update their registration information. Because of this, the State argues, each failure to comply with this duty constitutes a separate violation, and each litigation based on those separate failures constitutes a different "claim" for purposes of the doctrine of claim preclusion.
I find the State's argument unconvincing. Although each failure to provide information under AS 12.63.010(d) seemingly constitutes a separate violation of the sex offender registration law (see AS 11.56.840(a)), the definition of what constitutes a separate "claim" for purposes of the doctrine of claim preclusion ultimately rests on notions of equity. Here, the true underlying issue is not whether Beltz failed to make yearly or quarterly reports for particular time periods; rather, the issue is whether Beltz must register at all. Because of this, Beltz has a good argument that the present litigation (that is, the litigation arising from the State's efforts to prospectively rescind the superior court's 1997 order) should be deemed to involve the same "claim" as the original litigation between the parties in 1997.
But there is no need to definitively resolve this issue. Even if the doctrine of claim preclusion applies to this case, Beltz's position is nevertheless wrong for two reasons.
First, as explained above, the State's request for relief is properly characterized as a motion under Civil Rule 60(b)(5) — a motion seeking prospective rescission of the 1997 order, based on the assertion that "it is no longer equitable that the judgment should have prospective application". In Dixon v. Pouncy, 979 P.2d 520, 523-24 (Alaska 1999), the Alaska Supreme Court squarely held that the doctrine of res judicata ( i.e., claim preclusion) does not apply to motions for relief from a judgement under Civil Rule 60(b).
Second, the superior court's 1997 order is in the nature of a continuing injunction barring the State from enforcing the sex offender registration law against Beltz. (This is how Beltz's attorney interpreted the 1997 order in his letter to the Sex Offender Central Registry.) Legal commentators, courts from other jurisdictions, and the Alaska Supreme Court all agree that the doctrine of res judicata has only limited application when the question is whether an injunction should continue to have prospective effect.
According to Wright, Miller, and Cooper, "the ordinary [rule] of claim preclusion may be ignored if unanticipated events so change the situation as to warrant further relief". The authors add that "[i]njunctive decrees are particularly susceptible to modification in response to later events". According to the authors, the cases in this area stand for the proposition that
Wright, Miller, and Cooper, Federal Practice and Procedure: Jurisdiction (Res Judicata) (2nd ed. 2002), § 4409, Vol. 18, p. 238.
Id., p. 238 n. 36.
[p]reclusion should not apply if there has been a [substantive] change either in the facts or the governing rules. An issue decided under a statute, for example, may change if the statute is amended. The same is true for changes [in] administrative regulations or decisional law.
Wright, Miller, and Cooper, Federal Practice and Procedure: Jurisdiction (Res Judicata) (2nd ed. 2002), § 4425, Vol. 18, pp. 656-59.
This principle is exemplified by the Ninth Circuit's decision in Burlington Northern Sante Fe Railroad Co. v. Assiniboine and Sioux Tribes, 323 F.3d 767 (9th Cir. 2003).
In 1987, the Indian tribes living on the Fort Peck Indian Reservation began levying an ad valorem tax on the property of the Burlington Northern Railroad lying within the Railroad's right-of-way across the Reservation. The Railroad immediately challenged the tax by seeking an injunction against its enforcement, but the Ninth Circuit ruled in favor of the tribes. The underlying legal rationale of the Ninth Circuit's ruling was that even though the Railroad had a right-of-way across the Reservation, the land within this right-of-way was still held in trust for the tribes — meaning that the tribes could validly tax the property on this land.
Burlington Northern Railroad v. Blackfeet Tribe, 924 F.2d 899 (9th Cir. 1991).
Burlington Northern Railroad v. Assiniboine and Sioux Tribes, 323 F.3d at 769.
But six years later, in 1997, the United States Supreme Court held that land within a right-of-way granted by the federal government across Indian trust land was not, itself, trust land. Accordingly, in 2000, when the taxation issue arose again (in a case involving an electric company's right-of-way), the Ninth Circuit declared that its prior ruling in the railroad taxation case had to be overruled "to the extent [that] it upholds [the imposition of] an ad valorem tax on property located in a congressionally granted right-of-way."
Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997).
Big Horn County Electric Cooperative v. Adams, 219 F.3d 944, 953 (9th Cir. 2000).
Burlington Northern Railroad v. Assiniboine and Sioux Tribes, 323 F.3d at 769.
After the Ninth Circuit issued this decision, the Burlington Northern Railroad agreed to pay the tax owed for the current year (2000), but then the Railroad stopped paying the tax. In February 2001, the tribes filed suit against the Railroad, seeking a declaratory judgement that the Railroad was still obliged to pay the tax. The tribes argued that, even though the Ninth Circuit had overruled its earlier resolution of the general question of law ( i.e., the authority of Indian tribes to impose an ad valorem tax on property located within a federally granted right-of-way), the doctrine of res judicata barred the Burlington Northern Railroad from taking advantage of this changed rule of law, even prospectively, because the Railroad had never appealed the earlier case.
Id.
Id. at 770.
The Ninth Circuit rejected the tribes' argument. The court declared that "a subsequent . . . change or development in the controlling legal principles [underlying a court's earlier decision to grant or deny an injunction] may make [the earlier] determination obsolete or erroneous, at least for future purposes." The court noted that it was especially inappropriate to apply the doctrine of res judicata when the effect would be to subject one person to different treatment from everyone else in the same class, or to endow one person with "perpetual, vested rights" to unique favorable treatment based on court decisions "that have become obsolete or erroneous with time". Accord: Limbach v. Hooven Allison Co., 466 U.S. 353, 361; 104 S.Ct. 1837, 1843; 80 L.Ed.2d 356 (1984); FLRA v. United States Department of the Treasury, 884 F.2d 1446, 1456 (D.C. Cir. 1989); Del Rio Distributing Co. v. Adolph Coors Co., 589 F.2d 176, 179 (5th Cir. 1979).
Id., citing Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 599; 68 S.Ct. 715, 720; 92 L.Ed. 898 (1948).
Id. at 770-71.
We face precisely this type of situation in the present case. Beltz argues that the doctrine of res judicata makes the superior court's 1997 order immune from reconsideration or prospective rescission. But if we were to accept this argument, Beltz would be treated differently from all other sex offenders in Alaska: he would receive a unique, perpetual, vested immunity from the registration requirement. Courts do not apply the doctrine of res judicata when it would yield results of this kind.
The Alaska Supreme Court recently acknowledged that the doctrine of res judicata has only limited effect on a party's ability to seek injunctive or prospective relief. In McComas v. Kirn, 105 P.3d 1130 (Alaska 2005), the question was whether the court could re-evaluate a spouse's need for a domestic violence protective order, not based on any new acts of violence, but because the abusive spouse was being released from prison. The supreme court held that this change in circumstance was significant enough to justify renewed litigation of the other spouse's request for injunctive relief. Id. at 1135.
In Beltz's case, the significant change in circumstance is the United States Supreme Court's decision in Smith v. Doe, which definitively rejected the contention that the ex post facto clause limits the application of Alaska's sex offender registration law. It is now clear that the superior court's 1997 order gave Beltz something that he was not entitled to, and something that the superior court had no authority to give: immunity from the registration requirement. Accordingly, the doctrine of res judicata does not bar the State from seeking prospective rescission of that order. As stated in Wright, Miller, and Cooper, the rule of preclusion "should not apply if there has been a [substantive] change in . . . the governing rules[, either because a] statute is amended [or because there is a change in] decisional law." Id., § 4425, Vol. 18, pp. 656-59.
Conclusion
For these reasons, I agree with my colleagues that the superior court's decision of April 2005 should be reversed, that the superior court's order of August 1997 should be prospectively rescinded, and that Beltz is obliged to begin complying with Alaska's sex offender registration law.