USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________
No. 96-1002

WILLIAM L. TAYLOR, ET AL.,

Plaintiffs, Appellees,

v.

STATE OF RHODE ISLAND, ET AL.,

Defendants, Appellants.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Raymond J. Pettine, Senior U.S. District Judge]

__________________________

____________________

Before

Torruella, Chief Judge,

___________

Cyr, Circuit Judge,

_____________

and Cummings,* Circuit Judge.

_____________

____________________

Thomas A. Palombo, Special Assistant Attorney General, with

__________________
whom

Jeffrey B.
Pine,
__________________

Attorney

Partington, Special Assistant Attorney

__________

General,

Rebecca
Tedford
_________________

General, and Ellen Evans

____________

Alexander,
_________

Deputy Chief Legal Counsel, were on brief for appell-

ants.

Richard A. Sinapi, with whom Sinapi Law Associates, Ltd. and

_________________
___________________________
American Civil Liberties Union, were on brief for appellees.
______________________________

____________________

December 4, 1996
____________________

____________________

*Of the Seventh Circuit, sitting by designation.

CYR,
CYR,

Circuit Judge.
Circuit Judge.
_____________

The

Rhode Island

Department of

Corrections ("Department") appeals from a district court judgment

declaring

ultra
_____

application of

monthly

vires
_____

Rhode

and

unconstitutional

Island statute

offender fee upon the

tenced to

probationary terms

criminal offenses committed

the

which

would

appellees, all of

under

Department's

impose

whom were sen-

Department supervision

prior to the

effective date of

for

the

statute as implemented by

regulations promulgated by the Depart-

ment.

held that the Department's interpreta-

tion

The district court

of the

statute exceeded its

statute and that

the ex post
__ ____

authority under

the statute, as applied

facto clauses in the United

_____

the enabling

to appellees, violated

States and Rhode Island

Constitutions.

We

for the entry

vires
_____

vacate the district court judgment and remand

of summary

and ex post facto

__ ____ _____

judgment for appellants

claims, and for

on the

ultra
_____

further proceedings on

appellees' procedural due process claims.

I
I

BACKGROUND
BACKGROUND
__________

Rhode Island

133,

art.

97,

committed to

shall

2,

General Laws

directs

the care, custody,

42-56-38, P.L.

that "[e]ach

sentenced

or control of

1992, ch.

offender

the [Department]

reimburse the state for the cost or the reasonable portion

_________

thereof

(Emphasis

incurred

added.)

by the

The

state

relating

offender fee

to such

commitment."

statute itself

expressly

_________

delegates to the Department the power

_________

date by

declaring that

to determine its effective

its provisions "shall

not be

effective

until the date rules

and regulations implementing its provisions

are filed with the office of the Secretary of State."

The Department

responded by promulgating,

Id.
___

inter alia,
_____ ____

Regulation 10.07.03,

designating July 1, 1994 as

_____________

date of the "offender

fee" program, following its filing

implementing regulations

1994.

See
___

the effective

also R.I.
____

of the

with the Secretary of State on June 17,

Gen. Laws

42-56-10(v) (Powers

of the

director);

R.I. Gen. Laws

42-56-38 (Assessment of costs).

Regulation

further provides for

"offender fee" waivers based on

inability to pay, see Regulation

___

10.07.03(II)(E), and, in cases

of nonpayment, authorizes notification of the

nal

court at any parole

10.07.03(II)(D),

offender

as

fees, id.
__

or probation

appropriate crimi-

or probation revocation

well as

civil

actions

The

hearing, id.
__

to collect

unpaid

Mere nonpayment does not constitute a parole

violation, however.

Id.
__

10.07.03(II)(D)(3).

Nor

are offenders

in "banked" status (i.e.,

either residing outside

Rhode Island or not on supervised status) liable for the fee, id.
__

10.07.03(II)(C)(3).

Appellees,

tion
____

all convicted offenders sentenced to proba_________ __ ______

prior to July 1, 1994, each received advance written notice

_____ __ ____ _ ____

that the $15.00 offender fee would become effective July 1, 1994,

and subsequently

commenced

offender

suit

received monthly

in

federal

bills.

district court

Appellees thereafter

claiming

that

the

fee statute, as applied, violates the Ex Post Facto and

Due Process clauses of the United States and Rhode Island Consti-

tutions.

In due course, the parties submitted cross-motions for

summary judgment on

ruled that

the

a stipulated record

(i) the Department

and the district

had exceeded its

court

authority under

enabling statute by interpreting the statute so as to render

the offender fee retroactive as to appellees and (ii) the statute

violated the

creased

Taylor
______

Ex

Post Facto

the "punishment"

for

Clause since

it retroactively

their preenactment

crimes.

v. State of Rhode Island Dept. of Corrections,

_____________________________________________

in-

See
___

908 F.

Supp. 92 (D.R.I. 1995).

II
II

DISCUSSION1
DISCUSSION1
__________

A.
A.

The Ultra Vires Claim

The Ultra Vires Claim
_____________________

The district court concluded that the statutory

pretation adopted

delegated

by the

Department exceeded

authority because

"retroactive" application

it (i)

ence by the Rhode Island Supreme Court.

the statute demonstrates

the scope of

results in

and (ii) would not

inter-

its

an unauthorized

be accorded defer-

As the plain language of

that the Department did not

exceed its

mandate, we demur.

Under Rhode Island law,

it "is well established .

. .

that statutes and their amendments are presumed to apply prospec-

tively."

Hydro-Manufacturing v. Kayser-Roth, 640

___________________
___________

(R.I. 1994).

See also VanMarter v.

___ ____ _________

A.2d 950, 954

Royal Indem. Co., 556

________________

A.2d

____________________

1We review summary judgment rulings de novo, and must uphold

__ ____
them if

the record, "viewed in

nonmoving party,

reveals no

the light most favorable

trialworthy issue of

to the

material fact

and the moving party is entitled to judgment as a matter of law."

Velez-Gomez
___________

v. SMA Life Assur. Co., 8 F.3d 873, 874-75 (1st Cir.

___________________

1993).

41, 44 (R.I.

1989); Lawrence v.
________

864, 869 (R.I. 1987).

by

strong,

It

A.2d

is only in the event that "it appears

clear language

Legislature intended the

Anheuser-Busch, Inc., 523

____________________

or

necessary

implication that

the

statute or amendment to have a retroac-

tive effect," id.; see also Pion

___ ___ ____ ____

v. Bess Eaton Donuts Flour Co.,

____________________________

Inc., 637 A.2d 367, 371 (R.I. 1994), that the new enactment "will
____

be interpreted to

operate retrospectively."

Avanzo v.
______

Rhode
_____

Island Dept. of Human Servs., 625 A.2d 208, 211 (R.I. 1993).
____________________________

The statute itself explicitly

fee "shall not

states that the offender

be effective until the date the rules and regula-

tions are

filed."

language requires

R.I. Gen.

ing,
___

42-56-38.

no interpretation, see
___

Liability & Ins. Co.,

______________________

mandates

Laws

658 A.2d

506,

prospective application.

640 A.2d at 955

Whitehouse v.
__________

508 (R.I.

only prospective

(holding

(statute which states

application);

that phrase "shall

intent that statute be

1995),

as it

that it "shall take

intent that it be

Avanzo, 625
______

take effect"

explicitly delegated

responsibility for

promulgating and

A.2d at

211

indicates legislative

given prospective effect).

Island Legislature

menting rules and

Rumford
_______

See, e.g., Hydro-Manufactur___ ____ _________________

effect upon passage" evinces plain legislative

given

Thus, its plain

to

As

the Rhode

the Department

filing the required

the

imple-

regulations with the Secretary of State before

the offender fee program could take effect, R.I. Gen. Laws

42-

56-38, and there is no claim that the Department failed to comply

with the legislative mandate, its designation of a later (July 1,

1994) effective

date could not render

ultra vires or retroactive.2

_____ _____

B.
B.

The Ex Post Facto Claim

The Ex Post Facto Claim
_______________________

its interpretation either

The district

on their claims

court awarded appellees

that the

offender fee statute

Post Facto Clause under both

the Rhode

likewise

that Federal Ex

guides the

Constitution, Lerner
______

required

violates the

the United States Constitution

Island Constitution.3

Court has held

summary judgment

As

the

Rhode Island

Post Facto Clause

analysis under

v. Gill, 463
____

and

Supreme

jurisprudence

the Rhode

A.2d 1352, 1356

Ex

Island

(R.I. 1983),

cert. denied, 472 U.S. 1010 (1985), these claims merge.

_____ ______

The Ex

Post

Facto Clause

effectively prohibits

laws

____________________

2It

appears that the district court may have been misled by

an ambiguity

in the

statutory language,

which states

that the

offender fee shall apply to "each sentenced offender committed to

_________
the care, custody

or control

of the [Department]."

R.I.

Gen.

Laws

42-56-38 (emphasis added).

"[t]he word 'committed'

ted,'

which

The court correctly noted that

could mean either 'who

would include

existing

committed,'

which

would

Taylor, 908
______

F. Supp. at 104.

has been commit-

probationers,

implicate

only

new

However that may

or 'who

is

probationers."

be, we suggest,

the Department's interpretation cannot be considered ultra vires.

_____ _____
As

the agency

statute,

it

disambiguate

responsible
was

for implementing

entirely

appropriate

the statutory

language.

that

and enforcing

the

the

Department

See Gallison
___ ________

v. Bristol
_______

Sch. Comm., 493 A.2d 164, 166 (R.I. 1985).

__________
We

need

Department's

not decide

at

interpretation

this

time, however,

of the

term

material under a due process analysis.

whether

"committed"

the

would be

See Avanzo, 625 A.2d

___ ______

at

208 (retroactive application violates due process); Lawrence, 523

________
A.2d

at 864

(due

process

challenge to

explicitly-retroactive

legislation); but see Rhode Island Depositors Economic Protection

___ ___ ___________________________________________

Corp. v. Brown, 659 A.2d 95, 103 (R.I.), cert. denied, 116 S. Ct.
_____
_____
_____ ______
476 (1995) (retrospectivity alone

does not render statute viola-

tive of due process).

3Article 1,
vides:

10, of

the United

"No State shall . . .

Article 1,

States Constitution

pro-

pass any . . . ex post facto Law."

12, of the Constitution of the State of Rhode Island

reads:

"No ex post facto law . . . shall be passed."

"'retroactively

increas[ing]

alter[ing]

the

the punishment

for

Dept. of Corrections
____________________

(quoting Collins v.
_______

also Hamm
____ ____

v. Morales,
_______

definition

criminal

v. Latessa, 72 F.
_______

crimes

acts.'"

115 S. Ct.

Youngblood, 497
__________

of

3d 947, 956 (1st

California
__________

1597, 1601

U.S. 37, 43

or

(1990)).

(1995)

See
___

Cir. 1995), cert.

_____

denied, 117 S. Ct. 154 (1996).

______

Thus, ex post facto laws operate

__ ____ _____

retroactively either to redefine a crime or increase its "punish-

ment."

Morales, 115 S. Ct.

_______

at 1602 n.3.

See also
___ ____

Dominique v.
_________

Weld, 73 F.3d 1156, 1162 (1st Cir. 1996).

____

It

district

would

appear that

court's attention

the

parties failed

to significant

to

precedents governing

the pivotal determination whether civil fees constitute

ment."

"double

See Taylor,
___ ______

908 F. Supp. at 98.

call the

"punish-

Although it involved a

jeopardy" claim, United States v. Halper,

______________
______

(1989), applies as well in the ex post facto context.

__ ____ _____

490 U.S. 435

See Martel
___ ______

v. Fridovich, 14 F.3d 1, 3 (1st Cir. 1993) (citing Halper for the

_________
______

view

that a civil sanction

is "punishment" only

the aims of retribution or deterrence).4

ly, the Halper "punishment"

______

when it serves

As we explained recent-

test applies to "fines, forfeitures,

and other monetary penalties designed to make the sovereign whole

for harm or loss that is quantifiable in monetary terms."

United
______

States v. Stoller, 78 F.3d 710, 717 (1st Cir.) , cert. dismissed,

______
_______
_____ _________

S. Ct.
__

(1996).

Since it

is clear that

the challenged

____

____________________

4Subsequent to the district court decision in this case, the

Rhode Island Supreme Court adopted the

Halper test for determin______

ing whether a civil fee constitutes "punishment" under the Double

Jeopardy Clause.

See State v.
___ _____

One Lot of $8,560,

_________________

(R.I. 1996).

670 A.2d 772

offender fee fits the Stoller mold, the Halper "punishment"

_______
______

applies.

See
___

Jersey, 81
______

Halper
______

also Artway
____ ______

F. 3d 1235,

test applies

test

v. Attorney General of State of New

__________________________________

1256 n. 18

because Ex

(3d Cir. 1996)

Post Facto

Clause

(noting that

serves aims

similar to Double Jeopardy Clause); DiCola v. Food & Drug Admin.,

______
__________________

77 F.3d 504,

506-07 (D.C.

both ex post facto

Cir. 1996) (applying

Halper test
______

and double jeopardy claims); Bae

to

v. Shalala,

__ ____ _____

___

_______

44 F.3d 489, 492-93 (7th Cir. 1995) (employing Halper standard to

______

determine whether

civil sanction

implicates ex post
__ ____

facto con_____

cerns).

Halper adapted the Supreme Court's longstanding subjec______

tive test for defining "punishment," see DeVeau v.

___ ______

Braisted, 363
________

U.S. 144, 160 (1960) ("The question is . . . whether the legisla-

tive aim was to

punish that individual for past

coupling it with an

current regime

whether

the

objective standard.

governing civil

legislative

intent
______

activity."), by

Accordingly, under

provisions, we inquire

was punitive

in

the

not only

nature,

but

whether the challenged civil provision is "so extreme . . . as to

constitute punishment."

Halper, 490 U.S. at 442.

______

For purposes of

nature,

"the labels 'criminal' and 'civil'

importance."

Id. at 447.
___

the [sanction] imposed and

to serve.

determining whether a law

is penal in

are not of paramount

Rather, the court must

"assess[]. . .

the purposes [it] may fairly

be said

Simply put, a civil . . . sanction constitutes punish-

ment when the sanction

as applied in the individual

case serves

the goals of punishment[,]" id. at 448; see Martel, 14 F.3d at 3;

___
___ ______

that is to say, retribution and deterrence.

Halper, 490 U.S.

______

at

448.

On its face, the offender fee statute, suitably located

among other Rhode Island civil statutes, imposes a civil charge.5

The modest fee authorized by the statute comprises no part of any

sentence imposed

for the crimes committed by offenders.

it is expressly designed to "reimburse"

Rather,

the Department for costs

directly associated with providing goods and services required to

supervise

probationers and

R.I. Gen. Laws

42-56-38.

parolees

living

in the

Moreover, all offender

community.

fee revenues

are dedicated to such use, Regulation 1.12.01(IV)(K), and waivers

are

available

to

10.07.03(II)(E).

against

offenders

unable

Finally, the

all offenders released

same

to

monthly

pay,

Regulation

fee is

into the community

assessed

who are cur-

rently under Department supervision, without regard to the nature

or severity of their

respective offenses.6

In our

judgment, so

____________________

5Our research discloses no relevant legislative history.

6In determining
ment," the
annexed

that the offender fee

district court

to the crime,"

ruled that

appellees' probationary

it was

Calder v. Bull, 3
______
____

since probation is punishment

constituted "punishpart of

U.S. 386, 390 (1798),

and the offender fee is

sentences.

"the law

In our view,

linked to

this analysis

overlooks several determinative distinctions.

First,

though a probationary

sentence is "punishment," the

supervisory services for probationers released into the community

are largely rehabilitative, both in nature and purpose.
Gen. Laws

See R.I.
___

42-56-4(c) (Organization of department) ("Rehabilita-

tive services shall include . . . intermediary sanctions (including but not limited

to . . . probation, parole, restitution, and

community service) . . . .").

903 F.2d 60,
goals
U.S.

62 (1st

See also United States v. Cardona,

___ ____ _____________
_______

Cir. 1990) (noting

of rehabilitation

and public

that probation

safety), cert.
_____

serves

denied, 498
______

1049 (1991); Tillinghast v. Howard, 287 A.2d 749, 752 (R.I.

___________
______

1972) ("[I]t is for the purpose of giving a convicted accused the

modest a

cost-based supervisory fee reasonably

cannot be deemed

punitive in purpose, especially since any conceivable retributive

_______

or

deterrent effect could only be

inconsequential.

See Martel,
___ ______

14 F.3d at 3.

Finally, we

afoul

of the

assessment

purpose,

inquire whether the

objective test

"that

cannot

announced in

be said

solely

fee nonetheless

Halper:
______

to

serve a

runs

a monetary

remedial

but rather can only be explained as also serving either

retributive or deterrent purposes, is

to understand

the term."

Halper,
______

punishment as we have come

490 U.S. at 448.

Under this

standard, the offender fee must be deemed "punitive" if it "bears

no

its

rational relation to the goal of compensating the [State] for

loss."

Id. at 449.7
___

to answer it.

____________________

To

state the question in this case is

opportunity for rehabilitation that he retains his liberty and is

placed on probation.").
on

Second, the monthly fee is

not imposed

all offenders sentenced to probation, but only those actually

receiving the
the fee.

supervisory services

defrayed by

Regulation 10.07.03(II)(C)(3).

Thus, the offender fee differs

issue in

whose costs are

a case relied upon

materially from the fees

by appellees and cited

at

by the dis-

trict court, see In re Petition of Delaware for a Writ of Manda___ ________________________________________________

mus, 603 A.2d 814
___
imposed on the
that case

(Del. 1992), in which monetary

offenders at
__

sentencing.
__________

The

were blanket surcharges, calculated

the criminal penalty, fine,

sanctions were

fees involved

in

as percentages of

or forfeiture imposed at sentencing,

rather than reimbursements for the costs of providing services to

the offenders.
es
ing

As the Halper Court explained, "it is the purpos______

actually served by the sanction in question, not the underlynature of the proceeding

must be evaluated."

7We note no
monthly fee

giving rise to

Halper, 490 U.S. at 447 n.7.

______

contention, and

no evidence,

exceeds the costs associated

ment supervision of

the sanction, that

that the

with providing Depart-

offenders released into the community.

Halper, 490 U.S. at 452.

______

$15.00

See
___

10

The

offender

received under this

of

R.I. Gen.

tions in turn

ment

mandates

to offset costs of

Laws

make clear

designed to promote

statute

section will accrue first

corrections for use

service."

fee

42-56-38.

the specific care or

The

implementing regula-

that the offender

its costs in

"[m]onies

to the department

fee was

its legislative objective;

of the Department for

that

rationally

viz., reimburse___

providing the required

supervisory services

to its probationers and

tion 1.12.01(IV)(K).

Furthermore, the

parolees.

Regula-

implementing regulations

explicitly state that the offender fees collected from probation-

ers

and parolees

must

be deposited

in

a restricted

account,

exclusively available for defraying Department costs in affording

offenders the required community

lative

intent actuating

remedial

deterrent

and its

in

the

practical

nature.

Under

supervision.8

offender fee

effect is

Thus, the legis-

program is

entirely

neither retributive

the Halper
______

test,

nor

therefore, the

offender fee is not punitive.9

____________________

8Moreover,

as already noted,

see supra p.
___ _____

3, the offender

fee is imposed only on probationers and parolees currently

under

Department supervision in the community, not upon probationers in

"banked"

status.

Regulation 10.07.03(II)(C)(3).

than a blanket fee

commencement or
the

Thus, rather

assessed at sentencing without regard

duration of

any term of

to the

community supervision,

Rhode Island offender fee is directly and rationally related

to recouping the

State's costs in

providing supervision to

the

individual offenders for whose benefit the services are rendered.

Cf. In re Petition of Delaware for a Writ of Mandamus,
__ __________________________________________________

603 A.2d

814 (Del. 1992); note 4 supra.

_____

9The fact that

nonpayment of the fee can be

attention of the court

brought to the

at a parole/probation revocation hearing,

see supra p.3, does not transform the fee into punishment.
___ _____
revocation
Supreme

of parole/probation might

Court explained

in Morales
_______

11

While

constitute punishment, the

that courts

must determine

III
III

CONCLUSION
CONCLUSION
__________

For the foregoing reasons, the

is reversed and the

case is remanded for further

appellees' procedural due process

law.

district court judgment

claims under state and federal

The parties shall bear their own costs.

SO ORDERED.
SO ORDERED
__ _______

proceedings on

____________________

whether

increasing
1603.

legislative change

the measure of punishment."

sufficient risk

Morales, 115
_______

of

S. Ct. at

A legislative change which creates only a "speculative and

attenuated

possibility of

increasing the
the ex

"produces

measure of

post facto specter.

producing

the

prohibited effect

punishment" is insufficient
Id.

As the district

of

to raise

court recog-

__

____ _____

nized, any possible

and

the

render
Taylor,
______

___
link between nonpayment of

revocation of

parole/probation

the offender fee violative

908 F. Supp. at

is

of the Ex

101, especially since

constitutes grounds for waiver.

12

the offender fee

too attenuated

to

Post Facto Clause,

inability to pay
_________ __ ___