101 F.

3d 780

William L. TAYLOR, et al., Plaintiffs, Appellees,

v.
STATE OF RHODE ISLAND, et al., Defendants, Appellants.
No. 96-1002.

United States Court of Appeals,

First Circuit.
Heard May 8, 1996.
Decided Dec. 4, 1996.

Thomas A. Palombo, Special Assistant Attorney General, Providence, RI,

argued (Jeffrey B. Pine, Attorney General, Rebecca Tedford Partington,
Special Assistant Attorney General, and Ellen Evans Alexander, Deputy
Chief Legal Counsel, on the brief), for appellants.
Richard A. Sinapi, Cranston, RI, argued (Sinapi Law Associates, Ltd. and
American Civil Liberties Union, on the brief) for appellees.
Before TORRUELLA, Chief Judge, CYR, and CUMMINGS, * Circuit
Judges.
CYR, Circuit Judge.

The Rhode Island Department of Corrections ("Department") appeals from a

district court judgment declaring ultra vires and unconstitutional the
Department's application of a Rhode Island statute which would impose a
monthly offender fee upon the appellees, all of whom were sentenced to
probationary terms under Department supervision for criminal offenses
committed prior to the effective date of the statute as implemented by
regulations promulgated by the Department. The district court held that the
Department's interpretation of the statute exceeded its authority under the
enabling statute and that the statute, as applied to appellees, violated the ex post
facto clauses in the United States and Rhode Island Constitutions. We vacate
the district court judgment and remand for the entry of summary judgment for
appellants on the ultra vires and ex post facto claims, and for further
proceedings on appellees' procedural due process claims.

2* BACKGROUND
3

Rhode Island General Laws 42-56-38, P.L.1992, ch. 133, art. 97, 2, directs
that "[e]ach sentenced offender committed to the care, custody, or control of the
[Department] shall reimburse the state for the cost or the reasonable portion
thereof incurred by the state relating to such commitment." (Emphasis added.)
The offender fee statute itself expressly delegates to the Department the power
to determine its effective date by declaring that 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." Id.

The Department responded by promulgating, inter alia, Regulation 10.07.03,

designating July 1, 1994 as the effective date of the "offender fee" program,
following its filing of the implementing regulations with the Secretary of State
on June 17, 1994. See also R.I. Gen. Laws 42-56-10(v) (Powers of the
director); R.I. Gen. Laws 42-56-38 (Assessment of costs). The 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 appropriate criminal court at any parole or probation
revocation hearing, id. 10.07.03(II)(D), as well as civil actions to collect
unpaid offender fees, id. Mere nonpayment does not constitute a parole or
probation 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, all convicted offenders sentenced to probation prior to July 1, 1994,

each received advance written notice that the $15.00 offender fee would
become effective July 1, 1994, and subsequently received monthly bills.
Appellees thereafter commenced suit in federal district court claiming that the
offender fee statute, as applied, violates the Ex Post Facto and Due Process
clauses of the United States and Rhode Island Constitutions. In due course, the
parties submitted cross-motions for summary judgment on a stipulated record
and the district court ruled that (i) the Department had exceeded its authority
under the enabling statute by interpreting the statute so as to render the offender
fee retroactive as to appellees and (ii) the statute violated the Ex Post Facto
Clause since it retroactively increased the "punishment" for their preenactment
crimes. See Taylor v. State of Rhode Island Dept. of Corrections, 908 F.Supp.
92 (D.R.I.1995).

II
DISCUSSION1

A. The Ultra Vires Claim

6

The district court concluded that the statutory interpretation adopted by the
Department exceeded the scope of its delegated authority because it (i) results
in an unauthorized "retroactive" application and (ii) would not be accorded
deference by the Rhode Island Supreme Court. As the plain language of the
statute demonstrates 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 prospectively." Hydro-Manufacturing v.
Kayser-Roth, 640 A.2d 950, 954 (R.I.1994). See also VanMarter v. Royal
Indem. Co., 556 A.2d 41, 44 (R.I.1989); Lawrence v. Anheuser-Busch, Inc.,
523 A.2d 864, 869 (R.I.1987). It is only in the event that "it appears by strong,
clear language or necessary implication that the Legislature intended the statute
or amendment to have a retroactive 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 states that the offender fee "shall not be effective
until the date the rules and regulations are filed." R.I. Gen. Laws 42-56-38.
Thus, its plain language requires no interpretation, see Whitehouse v. Rumford
Liability & Ins. Co., 658 A.2d 506, 508 (R.I.1995), as it mandates prospective
application. See, e.g., Hydro-Manufacturing, 640 A.2d at 955 (statute which
states that it "shall take effect upon passage" evinces plain legislative intent that
it be given only prospective application); Avanzo, 625 A.2d at 211 (holding
that phrase "shall take effect" indicates legislative intent that statute be given
prospective effect). As the Rhode Island Legislature explicitly delegated to the
Department the responsibility for promulgating and filing the required
implementing rules and 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 its
interpretation either ultra vires or retroactive.2

B. The Ex Post Facto Claim

9

The district court awarded appellees summary judgment on their claims that the
offender fee statute violates the Ex Post Facto Clause under both the United
States Constitution and the Rhode Island Constitution.3 As the Rhode Island
Supreme Court has held that Federal Ex Post Facto Clause jurisprudence
likewise guides the required analysis under the Rhode Island Constitution,

Lerner v. Gill, 463 A.2d 1352, 1356 (R.I.1983), cert. denied, 472 U.S. 1010,
105 S.Ct. 2709, 86 L.Ed.2d 724 (1985), these claims merge.
10

The Ex Post Facto Clause effectively prohibits laws " 'retroactively alter[ing]
the definition of crimes or increas[ing] the punishment for criminal acts.' "
California Dept. of Corrections v. Morales, 514 U.S. 499, ----, 115 S.Ct. 1597,
1601, 131 L.Ed.2d 588 (1995) (quoting Collins v. Youngblood, 497 U.S. 37,
43, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990)). See also Hamm v. Latessa,
72 F.3d 947, 956 (1st Cir.1995), cert. denied, --- U.S. ----, 117 S.Ct. 154, 136
L.Ed.2d 99 (1996). Thus, ex post facto laws operate retroactively either to
redefine a crime or increase its "punishment." Morales, 514 U.S. at ---- n. 3, 115
S.Ct. at 1602 n. 3. See also Dominique v. Weld, 73 F.3d 1156, 1162 (1st
Cir.1996).

11

It would appear that the parties failed to call the district court's attention to
significant precedents governing the pivotal determination whether civil fees
constitute "punishment." See Taylor, 908 F.Supp. at 98. Although it involved a
"double jeopardy" claim, United States v. Halper, 490 U.S. 435, 109 S.Ct.
1892, 104 L.Ed.2d 487 (1989), applies as well in the ex post facto context. See
Martel v. Fridovich, 14 F.3d 1, 3 (1st Cir.1993) (citing Halper for the view that
a civil sanction is "punishment" only when it serves the aims of retribution or
deterrence).4 As we explained recently, the Halper "punishment" 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, --- U.S. ----, 117 S.Ct. 378,
136 L.Ed.2d 297 (1996). Since it is clear that the challenged offender fee fits
the Stoller mold, the Halper "punishment" test applies. See also Artway v.
Attorney General of State of New Jersey, 81 F.3d 1235, 1256 n. 18 (3d
Cir.1996) (noting that Halper test applies because Ex Post Facto Clause serves
aims similar to Double Jeopardy Clause); DiCola v. Food & Drug Admin., 77
F.3d 504, 506-07 (D.C.Cir.1996) (applying Halper test to both ex post facto and
double jeopardy claims); Bae v. Shalala, 44 F.3d 489, 492-93 (7th Cir.1995)
(employing Halper standard to determine whether civil sanction implicates ex
post facto concerns).

12

Halper adapted the Supreme Court's longstanding subjective test for defining
"punishment," see DeVeau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1155,
4 L.Ed.2d 1109 (1960) ("The question is ... whether the legislative aim was to
punish that individual for past activity."), by coupling it with an objective
standard. Accordingly, under the current regime governing civil provisions, we
inquire not only whether the legislative intent was punitive in nature, but
whether the challenged civil provision is "so extreme ... as to constitute

punishment." Halper, 490 U.S. at 442, 109 S.Ct. at 1898.

13

For purposes of determining whether a law is penal in nature, "the labels

'criminal' and 'civil' are not of paramount importance." Id. at 447, 109 S.Ct. at
1901. Rather, the court must "assess[ ] ... the [sanction] imposed and the
purposes [it] may fairly be said to serve. Simply put, a civil ... sanction
constitutes punishment when the sanction as applied in the individual case
serves the goals of punishment[,]" id. at 448, 109 S.Ct. at 1901-02; see Martel,
14 F.3d at 3; that is to say, retribution and deterrence. Halper, 490 U.S. at 448,
109 S.Ct. at 1901.

14

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. Rather, it is expressly designed to "reimburse" the Department for
costs directly associated with providing goods and services required to
supervise probationers and parolees living in the community. R.I. Gen. Laws
42-56-38. Moreover, all offender fee revenues are dedicated to such use,
Regulation 1.12.01(IV)(K), and waivers are available to offenders unable to
pay, Regulation 10.07.03(II)(E). Finally, the same monthly fee is assessed
against all offenders released into the community who are currently under
Department supervision, without regard to the nature or severity of their
respective offenses.6 In our judgment, so 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.

15

Finally, we inquire whether the fee nonetheless runs afoul of the objective test
announced in Halper: a monetary assessment "that cannot be said solely to
serve a remedial purpose, but rather can only be explained as also serving either
retributive or deterrent purposes, is punishment as we have come to understand
the term." Halper, 490 U.S. at 448, 109 S.Ct. at 1901. Under this standard, the
offender fee must be deemed "punitive" if it "bears no rational relation to the
goal of compensating the [State] for its loss." Id. at 449, 109 S.Ct. at 1902.7 To
state the question in this case is to answer it.

16

The offender fee statute mandates that "[m]onies received under this section
will accrue first to the department of corrections for use to offset costs of the
specific care or service." R.I. Gen. Laws 42-56-38. The implementing
regulations in turn make clear that the offender fee was rationally designed to
promote its legislative objective; viz., reimbursement of the Department for its
costs in providing the required supervisory services to its probationers and

parolees. Regulation 1.12.01(IV)(K). Furthermore, the implementing

regulations explicitly state that the offender fees collected from probationers
and parolees must be deposited in a restricted account, exclusively available for
defraying Department costs in affording offenders the required community
supervision.8 Thus, the legislative intent actuating the offender fee program is
entirely remedial and its practical effect is neither retributive nor deterrent in
nature. Under the Halper test, therefore, the offender fee is not punitive.9
III
CONCLUSION
17

For the foregoing reasons, the district court judgment is reversed and the case is
remanded for further proceedings on appellees' procedural due process claims
under state and federal law. The parties shall bear their own costs.

18

SO ORDERED.

Of the Seventh Circuit, sitting by designation

We review summary judgment rulings de novo, and must uphold them if the
record, "viewed in the light most favorable to the nonmoving party, reveals no
trialworthy issue of 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)

It 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). The court
correctly noted that "[t]he word 'committed' could mean either 'who has been
committed,' which would include existing probationers, or 'who is committed,'
which would implicate only new probationers." Taylor, 908 F.Supp. at 104.
However that may be, we suggest, the Department's interpretation cannot be
considered ultra vires. As the agency responsible for implementing and
enforcing the statute, it was entirely appropriate that the Department
disambiguate the statutory language. See Gallison v. Bristol Sch. Comm., 493
A.2d 164, 166 (R.I.1985)
We need not decide at this time, however, whether the Department's
interpretation of the term "committed" would be material under a due process

analysis. See Avanzo, 625 A.2d at 208 (retroactive application violates due
process); Lawrence, 523 A.2d at 864 (due process challenge to explicitlyretroactive legislation); but see Rhode Island Depositors Economic Protection
Corp. v. Brown, 659 A.2d 95, 103 (R.I.), cert. denied, --- U.S. ----, 116 S.Ct.
476, 133 L.Ed.2d 405 (1995) (retrospectivity alone does not render statute
violative of due process).
3

Article 1, 10, of the United States Constitution provides: "No State shall ...
pass any ... ex post facto Law." Article 1, 12, of the Constitution of the State
of Rhode Island reads: "No ex post facto law ... shall be passed."

Subsequent to the district court decision in this case, the Rhode Island Supreme
Court adopted the Halper test for determining whether a civil fee constitutes
"punishment" under the Double Jeopardy Clause. See State v. One Lot of
$8,560, 670 A.2d 772 (R.I.1996)

Our research discloses no relevant legislative history

In determining that the offender fee constituted "punishment," the district court
ruled that it was part of "the law annexed to the crime," Calder v. Bull, 3 U.S.
386, 390, 3 Dall. 386, 390, 1 L.Ed. 648 (1798), since probation is punishment
and the offender fee is linked to appellees' probationary sentences. In our view,
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. See R.I. Gen. Laws 42-56-4(c) (Organization of
department) ("Rehabilitative services shall include ... intermediary sanctions
(including but not limited to ... probation, parole, restitution, and community
service)...."). See also United States v. Cardona, 903 F.2d 60, 62 (1st Cir.1990)
(noting that probation serves goals of rehabilitation and public safety), cert.
denied, 498 U.S. 1049, 111 S.Ct. 758, 112 L.Ed.2d 778 (1991); Tillinghast v.
Howard, 109 R.I. 497, 287 A.2d 749, 752 (1972) ("[I]t is for the purpose of
giving a convicted accused the opportunity for rehabilitation that he retains his
liberty and is placed on probation."). Second, the monthly fee is not imposed on
all offenders sentenced to probation, but only those actually receiving the
supervisory services whose costs are defrayed by the fee. Regulation
10.07.03(II)(C)(3).
Thus, the offender fee differs materially from the fees at issue in a case relied
upon by appellees and cited by the district court, see In re Petition of Delaware
for a Writ of Mandamus, 603 A.2d 814 (Del.1992), in which monetary
sanctions were imposed on the offenders at sentencing. The fees involved in
that case were blanket surcharges, calculated as percentages of the criminal

penalty, fine, or forfeiture imposed at sentencing, rather than reimbursements

for the costs of providing services to the offenders. As the Halper Court
explained, "it is the purposes actually served by the sanction in question, not
the underlying nature of the proceeding giving rise to the sanction, that must be
evaluated." Halper, 490 U.S. at 447 n. 7, 109 S.Ct. at 1901 n. 7.
7

We note no contention, and no evidence, that the $15.00 monthly fee exceeds
the costs associated with providing Department supervision of offenders
released into the community. See Halper, 490 U.S. at 452, 109 S.Ct. at 1903

Moreover, as already noted, see supra p. 781, 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). Thus, rather than a blanket fee assessed at sentencing without regard to
the commencement or duration of any term of community supervision, the
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

The fact that nonpayment of the fee can be brought to the attention of the court
at a parole/probation revocation hearing, see supra p. 781, does not transform
the fee into punishment. While revocation of parole/probation might constitute
punishment, the Supreme Court explained in Morales that courts must
determine whether a legislative change "produces a sufficient risk of increasing
the measure of punishment." Morales, 514 U.S. at ----, 115 S.Ct. at 1603. A
legislative change which creates only a "speculative and attenuated possibility
of producing the prohibited effect of increasing the measure of punishment" is
insufficient to raise the ex post facto specter. Id. As the district court
recognized, any possible link between nonpayment of the offender fee and the
revocation of parole/probation is too attenuated to render the offender fee
violative of the Ex Post Facto Clause, Taylor, 908 F.Supp. at 101, especially
since inability to pay constitutes grounds for waiver