This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Timothy Boutin,



Gothriel LaFleur, Commissioner of Corrections, et al.,


Filed January 13, 1998


Short, Judge

Rice County District Court

File No. C29786

Bradford W. Colbert, 875 Summit Avenue, LEC 371, St. Paul, MN 55105 (for appellant)

Hubert H. Humphrey, III, Attorney General, Sara J. DeSanto, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondents)

Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Short, Judge.


SHORT, Judge

Timothy Boutin was charged with two counts of third-degree felony criminal sexual conduct, and one count each of fifth-degree assault and third-degree assault. Boutin pleaded guilty to third-degree assault and was sentenced to an upward departure of 40 months imprisonment. Prior to his release, Boutin was required to register as a predatory offender. Boutin complied, but brought this action against the Commissioner of Corrections seeking a declaration that registration violated his constitutional rights, and asking the court to issue a permanent injunction restraining the Commissioner from further violation of his constitutional rights. On cross-motions for summary judgment, the trial court granted judgment in favor of the Commissioner. On appeal from that judgment, Boutin argues: (1) the trial court erred in finding Minn. Stat. § 243.166, subd. (1)(a) (1996) requires individuals charged with, but not convicted of, predatory offenses to register as predatory offenders; and (2) in the alternative, Minn. Stat. § 243.166, subd. (1)(a) violates his constitutional rights. We affirm.


On appeal from summary judgment, we determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. Minn. R. Civ. P. 56.03; State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). While we view the evidence in the light most favorable to the nonmoving party, that party must produce specific facts to create an issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552 (1986). The interpretation and constitutionality of statutes are questions of law, which we review de novo. See Estate of Jones by Blume v. Kvamme, 529 N.W.2d 335, 337 (Minn. 1995) (holding statute's constitutionality presents question of law, which appellate courts evaluate de novo); Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985) (holding statutory construction involves question of law and is independently reviewed by appellate courts).


Boutin argues the trial court erred in interpreting Minn. Stat. § 243.166, subd. 1(a) (1996) to require him to register as a predatory offender. However, Minn. Stat. § 243.166, subd. 1 provides:

Subdivision 1. Registration required. (a) A person shall register under this section if:

(1) the person was charged with or petitioned for a felony violation of or attempt to violate any of the following, and convicted of or adjudicated delinquent for that offense or another offense arising out of the same set of circumstances:

(i) murder under section 609.185, clause (2);

(ii) kidnapping under section 609.25, involving a minor victim; or

(iii) criminal sexual conduct under sections 609.342; 609.343; 609.344; or 609.345.

Minn. Stat. § 243.166, subd. 1(a) (emphasis added). This plain language requires registration in the absence of conviction for a predatory offense if the defendant is convicted of an offense "arising out of the same set of circumstances." Because Boutin has failed to demonstrate the plain language of the statute violates clearly expressed legislative goals, we decline to interpret the statute to require a conviction for a predatory offense before registration is required. See Minn. Stat. § 645.16 (1996) (concluding if statute is unambiguous, court must only look to plain language of statute); see also Wegener v. Commissioner of Revenue, 505 N.W.2d 612, 617 (Minn. 1993) (concluding court may look beyond plain language only if literal meaning of statute leads to an absurd result that utterly departs from legislative purpose); Anker v. Little, 541 N.W.2d 333, 337-38 (Minn. App. 1995) (following plain language of statute when appellant failed to show application of statute's plain meaning creates absurd result, which utterly confounds clear legislative purpose), review denied (Minn. Feb. 9, 1995). Whether the statute literally interpreted may lead to an absurd result under other circumstances is a question not before us.

Boutin admits he assaulted his girlfriend, and twice engaged in nonconsensual sexual intercourse after the assault. He was charged with two counts of third-degree felony criminal sexual conduct, and one count each of third-degree felony assault and fifth-degree misdemeanor assault, and pleaded guilty to third-degree felony assault. The legislature, far from intending a different result, appears to have intended that offenders such as Boutin not be able to avoid registration as a predatory offender by plea bargaining for a lesser or different offense. Given these undisputed facts, the trial court properly determined Boutin was required to register as a predatory offender pursuant to Minn. Stat. § 243.166, subd. 1(a)(1).


In the alternative, Boutin asks us to declare Minn. Stat. § 243.166, subd. 1(a) unconstitutional. However, one who challenges the constitutionality of a statute must overcome every presumption in favor of its constitutionality. Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn. 1979). We will uphold a statute unless the challenging party demonstrates a constitutional infirmity beyond a reasonable doubt. Kvamme, 529 N.W.2d at 337.

Boutin argues Minn. Stat. § 243.166, subd. 1 violates his constitutional right to substantive due process because it abridges his right to have all elements of his crimes proven beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970) (concluding due process protects an accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute crime with which accused is charged). We disagree. Because registration is not punishment, it does not implicate Boutin's fundamental right to have all the elements of his crime proven beyond a reasonable doubt. See State v. Manning, 532 N.W.2d 244, 249 (Minn. App. 1985) (sex offender registration statute not punitive for purposes of ex post facto prohibition), review denied (Minn. July 20, 1995); see also In re Welfare of C.D.N. and A.R.L., 559 N.W.2d 431, 433 (Minn. App. 1997) (concluding application of sex offender registration statute to juveniles is nonpunitive), review denied (Minn. May 20, 1997); Snyder v. State, 912 P.2d 1127, 1132 (Wyo. 1996) (concluding sex offender registration statute did not violate constitution because statute is regulatory measure and not punishment).

Boutin also argues Minn. Stat. § 243.166 clearly violates his right to procedural due process because it burdens his privacy interests by requiring him to notify his corrections agent, in writing, each time he changes residency. However, simply giving notice of relocation does not alone restrain a predatory offender's movements. See C.D.N., 559 N.W.2d at 433 (concluding because registration only requires juveniles to inform police of their address, it restricts neither access to employment and education, nor freedom to travel). Moreover, the registration information is confidential and will only be disclosed to law enforcement. See Manning, 532 N.W.2d at 248 (concluding registration information is "private data" that may be used only for law enforcement purpose).

Conviction of an offense for which registration is required does trigger community notification provisions. Minn. Stat. § 244.052, subd. 1(4) (1996). However, Boutin, who was released in February 1997, does not indicate that any community notification of his release occurred. Even if Boutin had standing to raise this issue, the separate risk assessment under section 244.052, subd. 3, and the offender's opportunity to challenge the assigned risk level, make the statute's potential impact on a registered sex offender's privacy interests too speculative to address here. Thus, Boutin has failed to assert deprivation of any liberty interest. In addition, Boutin received: (1) the procedural safeguards surrounding his conviction; (2) the statutory notice regarding registration; and (3) personal notice of his duty to register from his prison caseworker. Under these circumstances, we conclude the statute does not violate Boutin's right to procedural due process. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 56, 105 S. Ct. 1487, 1495 (1985) (concluding essential requirement of due process is notice and opportunity to be heard).

Boutin further argues Minn. Stat. § 243.166, subd. 1(a)(1) violates the constitutional prohibition against bills of attainder and the separation of powers doctrine. See U.S. Const. art. I, § 9, cl. 3 (providing no bill of attainder or ex post facto law shall be passed); Minn. Const. art. I, § 11 (providing "[n]o bill of attainder, ex post facto law, or any law impairing the obligation of contracts shall be passed"); Minn. Const. art. 3, § 1 (providing powers of government shall be divided into three distinct departments: legislative, executive, and judicial). Because the predatory offender statute serves a reasonable and appropriate legislative purpose that is not punitive in nature, the statute is constitutional. See C.D.N., 559 N.W.2d at 433 (concluding application of sex offender registration statute to juveniles is nonpunitive); Manning, 532 N.W.2d at 248 (concluding registration is not punishment because it does not advance traditional aims of punishment); see also State v. Olson, 325 N.W.2d 13, 17-18 (Minn. 1982) (concluding once legislature has prescribed punishment for particular offense, it cannot condition imposition of sentence on prior approval of prosecutor); Starkweather v. Blair, 245 Minn. 371, 377, 71 N.W.2d 869, 874 (1955) (concluding bill of attainder is legislative act that inflicts punishment without judicial trial).