2007-668, PHILIP S. HORNER v. GOVERNOR, STATE OF NH & a

division where they intend to reside and the division enters this information into I (Supp. 2007). Upon release from prison, sex offenders must inform the (division) which maintains the sex offender registry. RSA 651-B:2, I (2007), :11,

assault,

mandates the collection of a sex offender registration fee. We affirm.

children is required to register with the New Hampshire Division of State Police

see RSA 632-A:3 (2007). Every sex offender and offender against

The plaintiff was convicted in 2000 of five counts of felonious sexual

enjoin the State from enforcing RSA 651-B:11 (2007 & Supp. 2007), which Superior Court (Smukler, J.) denying his petition for a writ of prohibition to BRODERICK, C.J. The plaintiff, Philip S. Horner, appeals an order of the

general, on the memorandum of law and orally), for the defendants. Kelly A. Ayotte, attorney general (Karen A. Schlitzer, assistant attorney

on the brief, and Mr. Samdperil orally), for the plaintiff. be reported by E-mail at the following address: Philip S. Horner, pro se, and Richard E. Samdperil, of Exeter (Mr. Horner

GOVERNOR, STATE OF NEW HAMPSHIRE & a.

No. 2007-668 order that corrections may be made before the opinion goes to press. Errors may Merrimack Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in are requested to notify the Reporter, Supreme Court of New Hampshire, One ___________________________

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their

as formal revision before publication in the New Hampshire Reports. Readers NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well associated with implementing the provisions of this paragraph. p. 2 children registers shall keep the remaining $2 to defray any costs municipality in which the sexual offender or offender against 2

continually appropriated to the department for such use. The offender registry. Such funds shall be nonlapsing and shall be an enforced contribution to raise revenue and not to reimburse the state for receive $15 to be used to defray the costs of maintaining the sex identified factors which aid in distinguishing a tax from a fee. First, “[a] tax is of $17 semi-annually. Of this amount, the department shall Opinion of the Justices, 98 N.H. 527, 528 (1953). However, our case law has employment and vehicles. because each partakes to some extent of the characteristics of the other.” photographed and provide specific information about their appearance, The distinction between a tax and a fee “is often difficult to determine (2007). Offenders must register in person on a semi-annual basis, be

purpose and the fee helps to defray the cost of maintaining the registry. The State argues that the charge is a fee because the statute serves a regulatory A sexual offender or offender against children shall pay a fee safety measure (the registry) which benefits all citizens, not just registrants.” RSA 651-B:11, I, provides:

address by sending a letter by certified mail to the offender. RSA 651-B:3, III 124, 133 (2005) (quotation omitted). except upon inescapable grounds.” Baines v. N.H. Senate President, 152 N.H. legislative act, we presume it to be constitutional and will not declare it invalid novo.” Nicolaou v. Vt. Mut. Ins. Co., 155 N.H. 724, 727 (2007). “In reviewing a “The interpretation of a statute is a question of law, which we review de

reality a disproportionate tax, being an enforced contribution to fund a public On appeal, the plaintiff argues that the sex offender registration fee “is in

2007). On a semi-annual basis, the division is required to verify the offender’s that the plaintiff failed to establish that RSA 651-B:11 imposes a tax. and enter the offender’s information in the system. RSA 651-B:3, II (Supp. Constitution. Following a hearing, the trial court denied the petition, ruling Hampshire, the division must locate the offender, serve notice of duty to register disproportionate taxation in Part I, Article 12 and Part II, Article 5 of the State prohibition contending that the statute violates the prohibition against annually.” RSA 651-B:11, I. The plaintiff brought a petition for a writ of Pursuant to the statute, sex offenders must pay “a fee of $17 semi-

the division is notified by law enforcement that a sex offender has moved to New the law enforcement name search system. RSA 651-B:3, I (Supp. 2007). When p. 3 “bear a relation to the expense of rendering the particular service.”

necessary if there were no sex offenders.” There is no evidence that the fee does

Constitution, the regulatory charge is a tax or a fee.

$2 “to defray any costs associated with implementing the provisions of [the maintaining the sex offender registry,” while the respective municipality receives The division retains $15 of the $17 semi-annual charge “to defray the costs of registration fees “are applied directly to regulatory services that would not be are required to pay the charge. As the trial court found, the sex offender governmental regulatory activity made necessary by the actions of those who not intended to raise additional revenue but, rather, is used solely to support a We hold that the $17 semi-annual charge imposed upon sex offenders is

the Justices, 117 N.H. at 384. state cases set forth in his brief to determine whether, under our State Opinion of law in support of this position. We decline to rely upon the federal and other rather than upon society as a whole.” The plaintiff offers no New Hampshire offenders.” State to share information regarding the whereabouts of convicted sexual fee will be sustained if not grossly disproportionate to the regulatory expenses). N.H. Dep’t of Health & Human Servs. taxing power have no application thereto.”, 153 N.H. 655, 658 (2006) (amount of a cost incurred in maintaining the sex offender registry. See D’Antoni v. Comm’r, The plaintiff does not challenge whether the $17 fee approximates the

assumed and must confer a particular benefit upon the party paying the fee, The plaintiff argues at length that “governmental fees must be voluntarily regulatory purpose, “providing a means for law enforcement agencies in this

“Charges of this nature are not taxes, and constitutional limitations upon the assessment would be used to provide funding for police training programs). forfeiture imposed by the court for a criminal offense is not a tax where penalty N.H. 382, 384 (1977) (penalty assessment of $2 or 10% on each fine, penalty or themselves of the advantages offered thereby.” Opinion of the Justices, 117 or in part by charges made upon those who necessitate the services or who avail recognized that governmental undertakings can properly be supported in whole

State v. Costello, 138 N.H. 587, 590 (1994). “It has long been

We have previously determined that the sex offender registry serves a

purpose as well as its essential characteristics.” Id. (quotation omitted). (quotation omitted). “In so doing, we must consider the statute’s declared characterization of a statute, it is necessary to discover its basic purpose.” Id. produce additional revenues.” Id. at 585. Third, “[t]o determine the proper implementation of a regulatory program and cannot primarily be intended to (1992) (quotation omitted). Second, to be valid, a fee “must be incidental to the special services.” American Automobile Assoc. v. State, 136 N.H. 579, 58 p. 4 4 4

the sex offender registry. Accordingly, there is no 651-B:11 is not imposed as punishment, but to defray the costs of maintaining serves a regulatory purpose. Thus, the $17 semi-annual charge under RSA

CONST. pt. I, art. 23. As discussed above, the sex offender registration law therefore, should be made . . . for . . . the punishment of offenses.” N.H. “Retrospective laws are highly injurious, oppressive, and unjust. No such laws, prohibition against retrospective laws.” The State Constitution provides that,

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

(2007). prospectively, not retrospectively. See In re Estate of Sharek, 156 N.H. 28, 30 Therefore the requirements of registration and payment of the fee occur upon the sex offender’s release from prison. See RSA 651-B:2, I, :3, I, :11, I. to criminal registration requirements violates New Hampshire’s constitutional the fee is imposed at the time of registration with the division, which occurs an offense, or changes the ultimate facts required to prove guilt). Furthermore, analysis is whether law increases the punishment for or alters the elements of State v. Comeau, 1 p. 4 42 N.H. 84, 88 (1997) (appropriate focus in ex post facto

In addition, the plaintiff argues that “the addition of a monetary exaction

characterized as a fee and not a tax. (quotation omitted). Accordingly, the $17 semi-annual charge is properly producing revenue.” Appeal of Ass’n of N.H. Utilities, 122 N.H. 770, 773 (1982) fee is not incidental to regulation but is rather “primarily for the purpose of offender registry, see D’Antoni, 153 N.H. at 658, nor is there evidence that the not “bear a relationship to and approximate the expense” of maintaining the sex