Ex Post Facto Limits on Retroactive SVORA Amendments: Upholding Pre-2007 Registration Requirements

Introduction

Clark v. State, 2025 MT 87, is a decision of the Supreme Court of Montana addressing whether William Clark, convicted in 1982 of multiple counts of sexual intercourse without consent (SIWOC), could be relieved from sex-offender registration under the 2005 version of the Sexual and Violent Offender Registration Act (SVORA). Clark had previously sought relief in 2005 and 2007, and the courts denied his petitions in light of statutory bars to relief when the victim was “compelled to submit by force.” In 2024 he renewed his petition, invoking the Court’s more recent holding in State v. Hinman (2023 MT 116) that the 2007 SVORA amendments are punitive and cannot apply retroactively. The key issue before the Court was whether applying the 2005 SVORA to Clark violated the ex post facto clauses of the federal and state constitutions.

Summary of the Judgment

The Supreme Court of Montana unanimously affirmed the District Court’s denial of Clark’s petition for relief from registration. The Court held that:

The 2007 SVORA amendments and subsequent changes are punitive in character and cannot be applied retroactively to offenders whose convictions predated 2007.
The 2005 SVORA is a civil regulatory scheme that may lawfully apply to pre-2007 offenders because it was not punitive when enacted.
Because Clark’s 1982 convictions involved a finding that the victim was compelled by force, § 46-23-506(5)(a)(i), MCA, permanently bars him from relief under § 46-23-506(3)(b), MCA.
The invalidity (as applied to pre-2007 offenders) of the 2007 amendments leaves the law as it stood under the 2005 statute, requiring Clark to register for life.

Analysis

Precedents Cited

State v. Mount, 2003 MT 275: Held the 2005 SVORA is civil, not punitive, and may apply retroactively without violating ex post facto prohibition.
State v. Clark (Clark I), 209 Mont. 473, 682 P.2d 1339 (1984): Affirmed Clark’s 1982 convictions and dangerous-offender designation.
State v. Clark (Clark II), 2008 MT 149N: Confirmed that SIWOC convictions with force preclude relief under § 46-23-506(5)(a)(i), MCA, regardless of charging language.
State v. Hinman, 2023 MT 116: Determined the 2007 SVORA amendments are punitive and cannot be applied retroactively to pre-2007 offenders.
State ex rel. Woodahl v. District Court, 162 Mont. 283, 511 P.2d 318 (1973): Established that invalid legislation reverts the law to its pre-amendment form.
Clark Fork Coalition v. Tubbs, 2016 MT 229: Reaffirmed that when an amendment is invalidated, the statute stands as it did prior to the amendment.

Legal Reasoning

The Court’s reasoning unfolded in several steps:

Nature of the 2005 SVORA: Following Mount, the Court confirmed that the 2005 statute operates as a nonpunitive, civil regulatory measure. Because it was not punitive at enactment, its retroactive application does not offend the ex post facto clause.
Punitive Character of 2007 Amendments: Hinman established that the legislature’s 2007 amendments imposed punitive burdens—longer registration periods, increased supervision, and the prospect of criminal penalty for non-compliance. As such, those changes cannot be applied to individuals whose offenses occurred before 2007.
Statutory Bar to Relief: Under § 46-23-506(5)(a)(i), MCA, a person convicted of SIWOC in which the victim was compelled by force is ineligible for relief under § 46-23-506(3)(b). Clark II had already construed the statutory language to focus on the nature of the offense, not the charging instrument.
Effect of Invalid Amendments: Applying Woodahl and Tubbs, the Court held that the partial invalidation of the 2007 amendments (as to pre-2007 offenders) restores the statutory scheme to its 2005 state. Since Clark remained barred by § 46-23-506(5)(a)(i), he must register for life under the 2005 SVORA.

Impact

This decision clarifies the interplay between legislative amendments to civil registration schemes and constitutional ex post facto protections. Key impacts include:

Affirmation that civil versions of sex-offender statutes may apply retroactively if they lack punitive intent or effect when enacted.
Clearer boundaries on when legislative amendments imposing new burdens become constitutionally impermissible if applied to past offenders.
Guidance to district courts that, when a later amendment is invalidated as to certain individuals, the controlling statute reverts to its prior form.
An enduring bar for offenders whose underlying convictions meet statutory criteria (e.g., force) for permanent registration under SVORA’s civil scheme.

Complex Concepts Simplified

Ex Post Facto Clause: A constitutional rule prohibiting legislatures from enacting laws that retroactively increase punishment or criminalize previously lawful conduct.
Civil vs. Punitive: Courts examine legislative intent and effects to determine whether a statute is punitive (subject to ex post facto limits) or civil/regulatory.
Invalidation and Reversion: When a court holds an amendment invalid (in whole or in part), the legal text reverts to the version effective before that amendment.
Permanent Registration: Under the 2005 SVORA, certain offenses—like SIWOC with force—trigger a lifetime duty to register, subject to no relief petitions.

Conclusion

Clark v. State reaffirms that civil regulatory schemes, such as the 2005 SVORA, may be applied retroactively without violating ex post facto prohibitions, provided they were not punitive at enactment. The decision also underscores that amendments found punitive cannot be back-dated to affect pre-enactment convictions, and that invalidated amendments effectively “fall away,” restoring the prior statutory framework. For offenders convicted before 2007, the 2005 SVORA remains in force, and those whose convictions involve force-based sexual offenses remain subject to life-long registration. The ruling thus balances legislative authority to regulate public safety with constitutional safeguards against retroactive punishment.