Commonwealth v. Baker

4) 3.450, In accordance with SCR Movant lawyer shall provides, “[a] section a material all pay ... Fail to disclose is directed to costs associated knowingly n withthese is nec- when disclosure proceedings fact to the tribunal disciplinary being perpetrated essary to avoid fraud $526.82, the amount of execu- which by Movant admits on the tribunal.” upon tion issue this Court Bankruptcy Court of his notifying Order; finality Opinion of this and and stock, he violated this transfer of brother’s 5) comply any If Movant fails to of Rule. discipline the terms of as set forth here- Movant’s investigated in, The KBA upon motion of the Office of Bar found insufficient evidence of Counsel, situation and may impose other or financial fraud any criminal conduct discipline in this matter.

Movant, of such activ presence despite Further, family. within Movant’s ities All All sitting. concur. history discipline. prior has no of Movant August ENTERED: 2009. However, from the record and Movant’s admission, it is clear Movant demon own Minton, John D. Jr. /s/ and incompetence serious failed strated CHIEF JUSTICE diligence. light practice reasonable motion is findings, the Movant’s these

hereby granted.

ACCORDINGLY, the Court ORDERS:

1) Movant, is ad- Erpenbeck, Richard 3.130-

judged guilty violating SRC 3.130-1.3, 3.130-4.4,

1.1, and SRC SRC 3.130-3.3(a)(2) in KBA charged SRC Kentucky, COMMONWEALTH 11401; File Petitioner, 2) hereby from the suspended Movant is years two from the practice of law for Order; Opinion of this and date BAKER, Respondent. Michael 3) to SCR Movant shall Pursuant notify all in which he has matters courts No. 2007-SC-000347-CL. suspension of his from the pending Kentucky. Supreme Court of law, all notify clients practice writing inability represent of his Oct. necessity urgency of the them and promptly retaining new counsel. duly notification shall be letter Such mail

placed in the United States within of this order. days

ten of the date simultaneously provide

Movant shall Kentucky

copy of all such letters to the Furthermore,

Bar Association. necessary, Movant possible

extent any immediately

shall cancel and cease he is en-

advertising activities which

gaged. General, Conway, Attorney

Jack Jason Moore, Bradley Attorney Assistant Gener- al, Attorney Office Appeals, of Criminal Office, Frankfort, KY, General’s Christo- Nordloh, KY, pher Covington, S. Counsel for Petitioner. Fox, Scott,

Bradley Wayne & Fox PLLC, KY, Covington, for Re- Counsel spondent.

OPINION OF THE COURT

I. INTRODUCTION question of law to be answered is 17.545, whether KRS which restricts may live, where registered offenders may be to those applied who committed 12, 2006, prior July offenses effective date of the statute. We hold that not. Even the General though Assembly not intend did the statute residency are punitive, the restrictions so negate any as to inten- effect Therefore, civil. tion to them deem application retroactive KRS 17.545 an punishment, ex which violates I, Article 10 of the Section United States 19(1) Constitution, and Section of the Ken- tucky Constitution.

II. BACKGROUND Residency Kentucky’s A. Sex Offender Restrictions 1994, seven-year-old Megan July On neighborhood Kanka disappeared her Township, Jersey. Soon in Hamilton New after, police Megan discovered that had the General enacted and murdered a man raped previ- been House Bill Kentucky’s which amended ously convicted of sex offenses. New Jer- restrictions to their current sey enacted what became known as “Me- Ky. form. 2006 Acts 182. The current Law,” gan’s requiring sex offenders to residency statute, restriction July effective state, register with the and establishing codified KRS reads as notification procedures living for those follows: nearby. year, Congress passed same registrant, No defined Wetterling Against Jacob Crimes Chil- 17.500, shall reside within one thou- Sexually dren and Violent Reg- Offenders (1,000) school, sand feet of a high Act, istration which conditioned certain school, school, middle elementary funding law enforcement on states enact- preschool, publicly play- owned ing Megan’s their own version of Law. ground, day or licensed facility. care The measurement shall be taken in a state, every Like other Kentucky has straight line from the prop- nearest Megan’s enacted a of version Law. The erty line of the school to the nearest first enacted sex offend- property line of registrant’s the registration requirements 1994, er place of residence. amending them in again 1996 and in 2000. (2) For purposes of this section: The 2000 to Megan’s amendments our Law (a) also included restrictions on sex registrant shall the duty have offenders as a condition of probation any ascertain property whether list- restriction, or parole. That (1) codified at ined subsection of this section is 17.495, KRS read as follows: (1,000) within one thousand feet of residence; the registrant’s and No registrant, as defined in KRS (b) If a new facility opens, regis- who placed probation, on parole, or trant shall presumed be to know release, other form of supervised shall and, (90) ninety days, within shall (1,000) reside within one thousand feet comply with this section. school, school, of a high middle elemen- school, tary preschool, (3) day or licensed Any person who violates subsection facility. (1) care The measurement shall be of this section shall guilty be of: straight taken in a line from the nearest (a) A A Class misdemeanor for a first wall of the school to the nearest wall of offense; and registrant’s place of residence. (b) A D felony Class for the second and each subsequent offense. upheld This Court registration pro- (4) visions of Kentucky’s Megan’s Law Any registrant residing within one Hyatt Commonwealth, v. (1,000) S.W.3d thousand feet of high (Ky.2002). year, The next school, school, United middle elementary States Supreme upheld Court school, Alaska’s sex preschool, publicly owned offender registration statute against an ex playground, or day licensed care fa- Doe, challenge 12, Smith v. cility July on shall move 155 L.Ed.2d 164 comply and with this section within (2003).1 (90) ninety days July of subsequently challenged 1. Doe registra- holding applied the statute cannot be State, tion statute in state court retroactively. on state law Doe 189 P.3d 999 grounds, (Alaska 2008). with the Alaska thereafter, Elsmere, subject Respondent Kentucky resided in be shall charged subsection set forth under and was arrested and with violat- penalties (3) 1,000 ing living section. KRS 17.545 for within feet Park, Bridge of East allegedly Covered apply to a section shall not This public playground. pa- probated offender or youthful minority her or during roled his or Respondent, According the Division elementary in an while enrolled provided Parole him Probation and with secondary program. education a link to a website determine whether original residency restriction While compliance he was in 17.545. only probation, to those on applied The website not show did East Covered release, supervised other parole, form Bridge the surrounding Park and area to regis- to all applies current statute a prohibited zone. regardless probation parole trants Court, In Respondent Kenton District addition, pub- adds status. challenged KRS 17.545 on a number of list playgrounds pro- to the licly owned grounds constitutional to dis- moved areas, measures distance hibited charges against April miss the him. On opposed line as to the property from the 20, grant- 2007. the Kenton District Court places also building. of a The statute wall Respondent’s ed motion and the dismissed to registrant burden on the determine the charges. Violation of compliance. he is whether The district court that KRS concluded a A mis- residency restriction is Class the applied Respondent, as to violated offense, the for first a Class demeanor post the ex facto clauses of the United for offenses. felony subsequent D Kentucky States and Constitutions. its History B. Procedural thorough the district found opinion, court had intended 31, 1995, Michael Respondent March On punitive. to be The district a plea charge entered to a guilty Baker that, even court also found if KRS 17.545 rape in Kenton Circuit third-degree Court. not clearly punitive, were its effect was probated to Respondent’s In addition sen- finding the punitive. Upon statute to be years pursuant imprisonment, tence of five applied Respondent, unconstitutional as to at to the version of KRS 17.520 effect the district court declined to address time, Respondent required reg- was to remaining challenges. constitutional 27, a sex until March ister as offender this The Commonwealth then moved law to determine subsequently lived Read- Court certification Respondent However, facto post the whether 17.545 is ex ing, family. with his Ohio 115, § residency Ky. Const. CR Reading’s punishment. offender See City of 76.37(10). granted certification to re- Respondent move We restrictions forced 2007, 2, constitutional issue.2 February important solve Kentucky. On back Pollard, State v. Supreme recently held state's constitution. 2. The Indiana (Ind.2009). that, N.E.2d applied as to those who committed their Walsh, 5:06-CV-96, enacted, also v. was See No. crimes before the statute Mikaloff (N.D.Ohio 2007) Sept.4, 2007 WL 2572268 residency Indiana's sex offender restriction (holding application of Ohio's that retroactive punishment retroactive for- statute constitutes the feder- restriction violates post clause ex facto bidden Clause). ap- Ex al Post Facto The Mikaloff III. ANALYSIS constitutes punishment retroactive forbid- clauses, den the ex post facto we are The United States Constitution and the guided by the United States Constitution, Kentucky through their re- two-part Doe, Court’s test from Smith v. clauses,3 spective post prohibit ex 84, 1140, 538 U.S. 123 S.Ct. 155 L.Ed.2d any imposes enactment of law that or in- (2003). First, we must determine punishment creases the for criminal acts whether the legislature intended to committed to the law’s estab- prior enactment. civil, scheme, lish a nonpunitive, regulatory Ex Post Facto Clause of the United legislature States Constitution “forbids ... whether the States intended to im- any imposes pose 92, 123 to enact law ‘which a punish- punishment. Id. at S.Ct. 1140 act punishable Hendricks, ment for an which was not (citing 346, Kansas v. 521 U.S. committed; imposes 361, at the time it was 2072, 117 S.Ct. 138 L.Ed.2d 501 punishment pre- (1997)). additional then If legislature intended im ” Graham, 24, scribed.’ Weaver 450 U.S. pose punishment, inquiry our ends. 101 S.Ct. 67 L.Ed.2d 17 If, 538 U.S. 123 S.Ct. 1140. Missouri, (quoting Cummings v. 71 U.S. however, legislature intended to enact (4 Wall.) 325-26, (1866)). 18 L.Ed. 356 civil, scheme, nonpunitive, regulatory then we must determine “whether the stat question, As threshold for a utory scheme is so in pur either facto, law to be considered ex “it must pose or effect to negate the State’s is, retrospective, apply must ” intention to deem it (quoting ‘civil.’ Id. enactment, occurring events before its Hendricks, 2072) disadvantage it must the offender affected (internal omitted). quotations and citations 72 Hyatt, (quoting it.” S.W.3d at 571 Weaver, 29, 960). at 450 U.S. 101 S.Ct. A. Assembly Whether the General In- question that ap

There is no KRS 17.545 tended KRS 17.545 to be Punitive plies by Respondent to conduct that oc curred well before the law’s enactment. must We first determine whether addition, In Respondent disadvantaged Assembly General intended to estab law, may as it restricts where he civil, lish a nonpunitive, regulatory scheme, However, live. post violate the ex legislature whether the intended to im clause, the statute must punitive. also be pose punishment. In determining leg Chandler, 540, Martin v. 122 S.W.3d 547 intent, islature’s this Court “must first ask (Ky.2003) (citing Dept. Corr. California legislature, whether the in establishing the Morales, 499, 3, v. 514 U.S. n. 506 115 mechanism, penalizing indicated either ex 1597, 131 (1995)). S.Ct. L.Ed.2d 588 pressly impliedly a preference for one whether, Smith,

In determining 93, with re label the other.” 538 U.S. at gard to those like Respondent, KRS 17.545 123 (quoting S.Ct. 1140 Hudson v. United peal (Iowa 2005); State, 394, request, was dismissed at Thompson the State’s v. 278 Ga. presumably because the (2004); Ohio People Leroy, 603 S.E.2d 233 v. 357 subsequently prohibited applica- retroactive 530, Ill.App.3d 293 Ill.Dec. 828 N.E.2d tion of the restriction statute on State, (2005); 769 Lee v. 895 So.2d 1038 grounds legislature Ohio had not (all (Ala.Crim.App.2004) upholding residency expressly Hyle made the law retroactive. See against restriction statutes ex facto chal- Porter, 117 Ohio St.3d 882 N.E.2d 899 lenges). (2008). see, Miller, e.g., (8th

But Doe v. 405 F.3d 700 1, 10; 19(1). § § 3. U.S. Const. Art. KY. Const. Cir.2005); Seering, State v. 701 N.W.2d 655

443 17.545(3). However, liability criminal 93, 99, States, 118 S.Ct. 522 U.S. move. (1997)). Therefore, only if the offender fails to we look attaches L.Ed.2d liability criminal un- similar to the Assembly’s expressed This is the General 17.510(11) register failing determining the Gener- der KRS intent. implied to, offender, in intent, upheld which we look as a sex we Assembly’s implied al Smith, “[ojther Smith, at 573. See also Hyatt, attrib- 72 S.W.3d formal in discussed (“A 101-02, enactment, 123 S.Ct. 1140 sex such as the 538 U.S. at legislative of a utes re- comply who fails to with the or the enforce- offender codification manner of its subjected to a requirement may be porting 538 U.S. it establishes.” procedures ment failure, for that but prosecution criminal 94, 123 S.Ct. separate any prosecution proceeding is a the Gener by examining begin We offense.”). original the individual’s enacting in intent Assembly’s expressed al history of legislative KRS 17.545. that the General We conclude The bill extremely sparse. Bill civil, House 3 is nonpuni- intended KRS 17.545 be to sex of related Therefore, “AN ACT tive, was entitled we regulatory scheme. thereof.” punishment and the fenses part the second of the Smith now consider suggests that the This title Ky. Acts 182. test. 17.545 Assembly intended KRS However, the title of while punitive.

be Punitive in 17.545 is B. Whether KRS statutory as an aid act be used Purpose or Effect Co., construction, Clevenger Oil & Wheeler that the Gen Because we conclude Washburn, 127 S.W.3d Inc. v. Assembly did not intend KRS eral that it should not believe (Ky.2004),we do now determine punitive, we must to be in this situation. determinative puni is so statutory scheme “whether As- to the General look We therefore negate or effect as to either tive enacting implied intent sembly’s ” to deem it ‘civil.’ intention the State’s First, manner of consider the 17.545. we 538 U.S. at Kentucky’s original its codification. Hendricks, 361, 117 521 U.S. (quoting restrictions, were which residency offender 2072) (internal and cita quotations S.Ct. the part were of at KRS codified omitted). a determi making In such tions Kentucky’s Megan’s amendments 2000 factors nation, by seven guided courts are Hyatt In Ky. Acts 401. 2000 Law.4 Kennedy in v. Mendo originally discussed Commonwealth, Court, addressing the this 168-69, za-Martinez, 83 U.S. 372 of our registration portions sex offender (1963). Smith, 644 9 L.Ed.2d S.Ct. (including the 2000 amend- Law Megan’s 97, 123 1140. 538 U.S. at S.Ct. ments), statutes “are that those concluded of nonpunitive goals the directly related to Smith, five factors rele the As 72 safety public.” of the the protecting “whether, necessary are, in its vant here at 572. S.W.3d (1) has scheme” regulatory operation, tradi history and in our regarded been Second, penalties at the estab- we look (2) the tra promotes punishment, as of resi- tions 17.545. Violation by KRS lished (3) imposes punishment, aims of A ditional a crime: a Class dency restrictions is (4) restraint, has a disability or and a affirmative the first offense for misdemeanor pur- nonpunitive ato rational connection subsequent offenses. felony D for class Safety.” Chapter 17 is entitled "Public 4. KRS respect deterrence. Men- or is excessive with to the ment:

pose, retribution doza-Martinez, Id. nonpunitive purpose. at U.S. promotes 554. 17.545 deter- general Historically Regarded as Punish- through the threat negative rence of con-

ment i.e. sequences, eviction or of restriction We first address whether the scheme person may where a live in future. by KRS 17.545 has been re- established however, significant, More is the statute’s history in our garded and traditions as retributive effect. Traditionally, the colonial punishment. practice banishing era of an offender from 17.545 makes no individualized de- community regarded has been as a of the a dangerousness par- termination Smith, punishment. form registrant. ticular Even registrants those 98, 123 S.Ct. 1140. Banishment has been victims were prohibited whose adults are “punishment as inflicted upon defined living from near an area where children by compelling quit criminals them to gather. imposed When a restriction is place, specified city, country, peri- for a offenders, all equally upon consid- no time, States v. United Ju od or for life.” given dangerous any partic- eration how Toy, 198 U.S. 253, 269-70, S.Ct. ular registrant public safety, be to (1905). L.Ed. 1040 begins that restriction to look like far more noted, As the district court courts re- past regula- retribution offenses than a viewing residency sex offender restrictions prevent tion intended to future ones. avoided or sidestepped have issue of concurring opinion his Justice whether these restrictions constitute ban- expressed Souter his unease with the ab- ishment, “dissenting judges have been sence of individualized risk assessment: intellectually more concluding far honest residency restrictions constitute ban- Ensuring is, course, public safety ishment.” While KRS is not identi- regulatory fundamental goal ... banishment,5 cal traditional pre- does objective given should be serious registrant residing vent the from in large weight analyses. But, community. areas of the expels It also time, same it would no be naive to look homes, registrants their own even if further, given pervasive attitudes toward residency predated the statute sex offenders.... The fact that Act school, arrival of daycare, play- past touchstone, prob- crime as uses ground. Such restrictions strike this ably sweeping significant in a number decidedly similar to banishment. pose who people no real to the threat We therefore conclude that the community, suspicion serves to feed that restrictions KRS have been 17.545 re- something more than regulation of safe- garded history our and traditions as on; ty going legislature is when a uses punishment. prior to impose convictions that burdens 2. Promotion of the Traditional Aims aims, the law’s outpace stated civil there of Punishment for argument is room serious that Next, crimes, we past address whether KRS ulterior is to revisit 17.545 promotes the punish- traditional aims of prevent not future ones. is, course, present,

5. It long not identical to traditional children are so as he not does banishment, registrant may because the still permanent house his make the home. during day, return to the house when 108-09, or guarantees 1140 that there are no a school Smith, U.S. at facility] not By open re- ... will within (Souter, J., concurring). imposing [other 1,000 offenses, any given feet of location.” State v. prior solely upon based straints (Ind. Pollard, 1145 at 1150 908 N.E.2d retri- promotes and furthers 17.545 2009). such, registrant As a cannot estab past for their against sex offenders bution permanent a home. KRS 17.545clear lish conclude that KRS therefore crimes. We ly affirmative disabilities and re imposes aims the traditional promotes 17.545 registrants. upon straints punishment. Disability Re- Nonpuni- or a Affirmative Rational to

3. 4. Connection Purpose straint tive 17.545

Next, whether KRS whether KRS 17.545 we address We next consider re- a disability legitimate to an affirmative has a rational connection imposes imagine to nonpunitive public purpose. find it difficult The Com- straint. We residing cer- argues from within restric- being prohibited monwealth as affirma- qualify nonpunitive purpose does an tain areas not tions serve In disability Hyatt, public safety, legiti- a undoubtedly restraint. which is tive requirements, upheld registration purpose. question mate is therefore registration place does “not con- KRS 17.545 bears rational noting whether offend- public safety. on activities to limitations nection ” (citing at 572 Collie S.W.3d er.... prohibits registrants from KRS 17.545 State, (Fla.Ct.App.1998)). 710 So.2d 1000 (i.e. night, chil- residing sleeping when it Court found 1,000 present) are not within feet dren subject to that “offenders significant congregate, where children but areas are free [registration] statute Alaska spend- prohibit registrants from does and to live they where wish move center, school, daycare at a day all ing citizens, supervi as other no work (when present). playground children are 538 U.S. at S.Ct. sion.” registered to sit It allows sex offenders children, contrast, watch places signifi- 17.545 the street and By across registrant may limitations children. KRS 17.545 where a to work near cant on even an come not even offender significant this limitation does restrict five. With victim, long they live As district with the so consequences. living collateral could, prohibited area. noted, sleep for ex- of the the restrictions outside court in a residing is prohibits chil- “impact offender’s All KRS ample, where school, public zone. It does prohibited access to trans- within dren attend home It is with children. purposes, regulate access not contact portation employment en- public safety see access difficult to how employment opportunities, being allowed programs registrant drug and alcohol rehabilitation hanced night, when chil- resi- near a sleep access to medical care and school and even being ag- present, but allowed nursing facilities for the are not dential home dren day, children during the when stay there ing offender.” present.6 are faces a constant registrant also to safe- public way KRS 17.545 is connected eviction there is no threat of “because However, flaws inherent the statute’s permanent ty. her to a home for him or find 769, N.E.2d were 293 Ill.Dec. questions same raised 6. These J., (Kuehn, dissenting). People Leroy, Ill.App.3d dissent in v.

prevent being that connection Hendricks, “ra- In Kansas the U.S. Su- Therefore, preme upheld tional.” we conclude that involuntary KRS civil com- of mitment sex complet- 17.545does not have a rational offenders who had connection period ed their of incarceration. nonpunitive purpose. to a 138 L.Ed.2d 501. The Respect 5. Excessive with to a Non- law at Kansas issue required individual punitive Purpose assessment of prior offenders to commit- 352-53, at ment. Id. 117 S.Ct. 2072. The Finally, we address whether KRS 17.545 that, Smith court noted while individual respect with nonpunitive is excessive to the is required assessment not for sex offender public safety. of making that Hendricks, registration, magni- “[t]he determination, we note the lack individ- tude of the restraint made individual as- assessment, risk ualized combined with the appropriate.” Smith, sessment 538 U.S. fluidity. statute’s 104, 123 S.Ct. 1140. First, previously, as noted KRS 17.545 restrictions found KRS any type does not make of individualized 17.545are more onerous than registra- as to particular assessment whether a of- requirements Hyatt tion at issue in a public safety. fender is threat to Smith, but less onerous than the involun- 17.545prohibits all registrants regard-— tary commitment in Hendricks. We be- registrant’s less of whether the victim was “magnitude lieve that restraint” adult, child, teenager, regardless in residency involved is suffi- restrictions violent, the crime whether was nonviol- a lack cient for of individual assessment to ent, statutory 1,000 living within —from punitive. render the statute school, a playground, daycare feet of The record before us not does reveal facility. absolutely There is no individual or not Respondent might whether be a determination. threat to children public safety. and to exactly But is why correctly Commonwealth Given excessive.7 the drastic conse- points out that a “statute deemed .is quences Kentucky’s residency restric- punitive simply a because lacks close or tions, and the fact that there is no individ- fit perfect with the nonpunitive aims it ual particular determination of the a threat Smith, seeks advance.” 538 U.S. at poses registrant public safety, we can 123 S.Ct. 1140. In the U.S. Su only conclude KRS 17.545 is excessive preme Court concluded individual as respect with to the nonpunitive purpose of was necessary sessment offend safety. public registration requirements, er and that legislate State’s “[t]he determination Second, stated, as the district court respect with to convicted sex offenders as excessiveness Kentucky’s “[t]he residen- class, rather than require individual de cy restrictions is further heightened termination of their dangerousness, does fluidity.” While a may sex offender not make the statute a punishment under permitted day one in a particular live 104, 123 Ex Post Facto Clause.” home, may Id. day he the next find himself school, S.Ct. prohibited by the opening day- of a Pollard, ("Restrict- particular 7. See 908 N.E.2d danger at 1153 whether offender is a ing the residence of offenders based on con- general public, the statute exceeds its non- nothing duct have to do crimes punitive purposes.”). children, against considering and without Justice, ABRAMSON, Perhaps Dissenting: even facility, playground. care city fact that a is the troublesome more Virtually among appellate alone courts easily designate play- an area could issue, to majority consider the the has guid- no ground, provides and the statute application invalidated the retroactive of qualifies as a exactly as to what ance legislation forbidding convicted sex offend- “playground.” schools, residing day from near ers the centers, playgrounds po- care and where fluidity little may provide such While tential child victims In congregate. so do- for in rural areas of problem registrants has, ing majority respect the with to a easy why it to see Kentucky, should be problem, arrogated difficult to most social in a serious burden areas this becomes the has legislator itself role of and substi- Louisville, Respon- Lexington, such as public policy judgment tuted its that of Kentucky, with home of Northern dent’s Assembly. our the General Because dem- tightly municipali- clustered its dozens system such Furthermore, policy ocratic leaves choices to places the the ties. legislature, agree I and because with in registrant on the determin- sole burden the several other courts have held compliance. in or not he is ing whether sex 17.545(2). that retroactive offender re- and fluidity This uncer- strictions do exceed legislative authori- makes KRS 17.545 excessive tainty concerns, ty public safety address I to vital safety. public to respect respectfully dissent. factors, Smith weigh five all five Of concluding is favor FACTS RELEVANT Therefore, we punitive effect. conclude notes, majority As the since when as punitive KRS 17.545 is so effect Kentucky’s version adopted initial of Me- Assembly’s intention negate General Law, Assembly gan’s the General has en- it civil. deem evolving in an effort to address the

gaged profoundly vexing problem and serious IV. CONCLUSION offenders, those of- particularly who sex Assembly Although the General did part against fend children. As to be the resi- punitive, intend KRS 17.545 effort, Law, Megan’s Sex Offender dency restrictions are so in effect Act, Registration KRS 17.500 negate any to deem them intention and of- requires convicted offenders Therefore, the statute not con- civil. against register minors to fenders stitutionally applied those like Re- probation pa- with the local and addresses pri- who committed their crimes spondent, Assembly In role office. General 12, 2006, July date of or to the effective potential child sought protect further to so the ex the statute. To do violates by forbidding during registrants victims of the United States and facto clauses probation or parole the course of their Kentucky The law so cer- constitutions. 1,000 day feet of care residing within tified. middle, elementary, high centers schools. NOBLE, CUNNINGHAM, expanded protective its efforts again SCOTT, SCHRODER, VENTERS, enacting legislation Bill House JJ., concur. alia, here, which, inter extends issue ABRAMSON, J., by separate previously residential restrictions. enacted dissents C.J., restrictions, MINTON, joins. currently codi- in which The amended opinion 448 17.545, apply punitive,

fied at to all regis- subject and thus to the Ex Post trants, just probationers to and Facto parol- prohibition against Clause’s retroac ees, punishment, tive if playgrounds legislature and add to evi public the list intent, or, denced a punitive protected even where sites. legislature civil, intended a non-puni Baker, who was Michael convicted in tive, statute, regulatory statutory if “the rape and third-degree 1994 of so came scheme is so either in purpose or registration under require- KRS 17.510’s effect negate as to [the intention State’s] ment, 1,000 living was within feet of ” Smith, to 92, deem it ‘civil.’ 538 U.S. at Elsmere, public playground Kentucky, in (citations 123 S.Ct. 1140 quo internal that he was in when he was notified viola- omitted). tation marks Because courts tion of the amended restrictions. generally legislative intent, defer to how was February charged 2007 he in Ken- ever, “only proof the clearest mil suffice with a ton District class A Court misde- legislative override intent and transform challenged meanor. Baker KRS 17.545 as what has been remedy denominated a civil violative of the and state federal Ex Post 92, into a criminal penalty.” Id. at Clauses, provisions Facto constitutional (emphasis supplied, S.Ct. 1140 citations punishing forbid the state either omitted). quotation and internal marks increasing punishment retroactively. majority transformation has 20, By 2007, April Order entered the dis- worked in this case is contrary to this trict court Baker agreed with and declared deferential standard. application the statute’s retroactive invalid. Pursuant 115 of our Section Constitu- I. The General Intended KRS 76.37(10), tion and CR the Commonwealth 17.545 To Be Civil Rather Than Pu- then for a moved this Court certification of nitive. law on issue: following “Whether KRS majority correctly concedes that the 17.545was with the pun- enacted intent to General Assembly intended KRS 17.545’s ish sex offenders is so consequentially residence restrictions to serve a regulato- any negate excessive as to inferred con- ry, non-punitive, public safety function. trary sex regulate intent to offender recid- Indeed, the residence restrictions have ivism.” been Safety” Chap- codified the “Public Kentucky Statutes, ter of the Revised

ANALYSIS Chapter immediately following the Sex case, Resolution of as the majority Act, Offender Registration an Act held notes, requires consideration the two- be non-punitive subject and thus not to the part test States the United Clause, Hyatt Ex Post Facto v. Com- has applied to ex issues in such monwealth, 72 (Ky.2002). S.W.3d 566 Hendricks, cases as Kansas v. 521 U.S. Nevertheless, majority concludes 346, 117 (1997) S.Ct. L.Ed.2d 501 KRS 17.545’sresidence so restrictions are (upholding application the retroactive of a punitive in as to effect belie the General Kansas providing the civil com Assembly’s apparently regulatory intent offenders) mitment of dangerous and to KRS 17.545 inapplicable render Doe, Smith v. 538 U.S. S.Ct. many registered sex offenders whose 155 L.Ed.2d (upholding the ret prior crimes were committed to the stat- roactive application Alaska’s version of July ute’s effective date 2006. This Act). Registration the Sex ruling Offender obviously Un deals severe blow the test, reflects, der that my a statute statute’s deemed effectiveness in punitive large to due dence restriction deemed give failure this Court’s judgment, particu con- a Assembly’s part applies it without to the General because deference trary dangerousness). intent. of larized assessment As noted, courts restric these have residence Is 17.545 Not So The Effect of KRS II. punish not of tions are a traditional form Negate the As To Punitive are punitive and their effects not ment Assembly’s Intention. light important public in of their undue notes, in as- correctly majority view, majori As the objective. my the safety of legislation effect sessing the ty’s application of the Court’s the merely regulatory, intended to be defer, points fails to factors at several consid- Supreme Court has States United do, obliged permissible legis to we are to “whether, in its following the factors: ered ju thus to judgments, lative and amounts regulatory necessary operation, legislating guise dicial under consti history regarded in our been scheme: has analysis. tutional imposes punishment; as a and traditions restraint; disability pro- or affirmative Not, Are A. Residence Restrictions and punishment; traditional aims motes the Resemble, Traditional Do Not a nonpunitive connection to has a rational Forms of Punishment. to respect is excessive purpose; or assertion, for Contrary majority’s 123 U.S. at purpose.” 538 17.545’s residence restric- example, KRS have courts appellate Several S.Ct. 1140. not banishment in ei- tion does resemble application of retroactive addressed the Banishment, effect. ther light residency restrictions sex offender course, removing danger- a was means factors, and but one of them of these all community in ous individuals from the restrictions, far some have held that prisons days when did not exist were 1,000 Kentucky’s foot than more severe inadequate purpose. serve zone, regulatory, not primarily were buffer contrast, registered leaves sex implicate thus did not ex punitive, and live, free to completely and child offenders Miller, F.3d v. 405 limitations. Doe community. work, participate Cir.2005) (Iowa’s (8th 2,000 foot, buffer 700 contact, only It seeks to lessen v. regulatory, punitive); zone State tragedy, be- opportunity hence the (Iowa 2005) (up- Seering, N.W.2d 701 655 known offenders and some of tween zone); v. 2,000 holding foot buffer Salter most vulnerable mem- community’s State, (Ala.Civ.App.2007)(ap- 31 971 So.2d requirement potential bers. statute’s zone); 2,000 v. People foot buffer proving change registered sex offender resi- that a Ill.App.3d 293 Ill.Dec. Leroy, 357 change unlike with a zoning dence is (2005) (approving 500 foot 769 828 N.E.2d effect, cry far banishment like zone). Standley Town See v. buffer also punishment. form of any other traditional Woodfin, N.C.App. 650 S.E.2d argued has In other been cases entering pub on (upholding ban protected sites left buffer zones around Baker, 2006 WL 905368 park);

lic Doe v. opportunities no avail- little or residential (N.D.Ga.2006) 1,000 (upholding foot buffer and thus did tend to registrants, zone). Shields, able A. Marjorie generally See community. outside the registrants force Residency “Validity Imposing of Statutes any similar Offenders,” have not been referred We Registered Sex Restrictions on us, however, (2007). showing the record before But see 25 ALR State 6th (resi (Ind.2009) Kentucky’s Pollard, zones under the buffer N.E.2d 1145 are smaller than those at in mitigate. regulation issue looks not to the past crime, of those other cases. Even in most those to the danger but of future cases, the courts have held that because recidivism. registrants left the residence restrictions The majority contends that for- visit, work, and otherwise free conduct ward looking focus is fact belied throughout community, their affairs that the regulation attempt does not they did not banishment in any resemble distinguish the more from the less dan- See, superficial e.g. but sense. Doe v. offenders, gerous but the record before us Miller, supra. record suggests The here provides no for that basis distinction. As only that Baker has been inconvenienced the Supreme United Slates Court noted by being forced to move.8 The majority’s years Doe, six ago in Smith v. there is notwithstanding, claims he has not been data that suggesting risk recidi- “[t]he banished. posed vism ‘frighten- offenders is ” ing high.’ 538 U.S. at 123 S.Ct. Although Imposes B. KRS 17.545 A be, course, 1140. It may well that as Burden, That Burden Is Not Retri- more gathered data is important differ- butive. ences among types different of offenders burdened, Baker has been however. emerge, will differences which could have There is no that doubt but residence re- a bearing legislative That, on choices. disability. strictions are a form of That however, precisely is the sort of informa- alone, however, fact does render KRS makers, courts, tion law designed are punitive. majority vast The of civil nothing assess. There is in the record impose

regulatory statutes some sort of before us which would preclude the Gen- disability or restraint. The questions, eral Assembly from treating sex offenders rather, are whether the disability here class, as a compel or would it to make the punitive serves ends and whether it is so majority distinctions the Neither favors. regard excessive with to the civil ends it is sum, Baker nor majority, has meant to serve as not. to be rational. The shown that KRS 17.545 is a retributive majority maintains that KRS 17.545 is statute, assuredly they most have not punitive both and irrational. shown proof.” retribution the “clearest punitive, majority contends, It is Reasonably C. KRS 17.545 Advances A applies only because it to convicted sex Safety Vital Public Aim. offenders. regulation Because the is offense, on a prior majority then, based con- The final questions, are whether cludes that it to additional rationally amounts retri- KRS 17.545 serves a valid non- bution for that punitive offense. As the purpose, United and whether the disabili- Appeals States for the ties it Eighth creates are light excessive that explained, held, Circuit Doe v. Miller purpose. howev- our sister As courts have er, residence single vital, restrictions out prior residence restrictions have the non- past offenders not punitive because conduct is protecting children punished, to be further but because from that sexual and other assaults crimes. is an conduct indicator of future danger- supra, Court noted ousness, legislature which hopes that a statute’s “rational connection to a Ohio, 8. Baker's counsel prohibited to reoffend. offender “drastic,” disability that ex- as deems couple for a The cessive of reasons. dis- too a majority applied The has far strict first, ability according is excessive to the Assembly The is not standard. majority, regis- it all applies because statutes, obligated perfect to fashion trants without individualized assess- Commonwealth, 52 v. S.W.3d Cornelison dangerousness. ment of future It. is also it (Ky.2001), precluded 570 nor is excessive, majority opines, the because leaving addressing part problem of a “fluid,” i.e., protected because the buffer v. day. for another Holbrook parts other schools, can as care cen- change day zones Inc., Group, 65 Lexmark International ters, and playgrounds open or relocate. As the United (Ky.2001). S.W.3d 908 majority the Su- acknowledges, As Smith, in “[a] Court stated States rejected argument preme Court the first punitive be simply is not deemed statute Upholding in Smith v. Doe. the retroactive perfect a fit cause it lacks close or with Regis- application of Alaska’s Sex Offender nonpunitive aims it seeks to advance.” 538 very against argument, that tration Act Smith, in 123 As U.S. at S.Ct. 1140. explained that the Court majority upon relies imprecision non- Ex Post Facto Clause does not suggest [t]he that [KRS 17.545]’s “does not reason- making a State from pre preclude is a sham or mere (citation judgments that convic- categorical at 123 1140 able text.” Id. S.Ct. omitted). crimes should entail specified tion quotation and internal marks consequences. contrary, regulatory We particular while residential restric On the upheld against ex chal- eliminate all between have tions cannot contacts imposing regulatory bur- potential lenges and their laws potential recidivists victims, on convicted of crimes particularly perpetra dens individuals child where related, clearly any corresponding are risk assess- they victim are without tor and Veau, at con ment. De 363 U.S. decreasing a means of those See rational Hawker, ... at tacts, the General S.Ct. and thus 573_As Hawker: stated in they that would 18 S.Ct. reasonably could believe “Doubtless, has violated the safety one who the overall of children. enhance belief, reform and that criminal law thereafter denying the reasonableness of possessed mor- good As in fact a majority disregards the General become legislature has right part, al character. But sembly’s problems to address make a in cases this kind to comprehensively, improp power rather than application....” for rule of universal Ibid. erly policy judgment its substitutes legislate determination to Assembly. The State’s that of the General respect to with convicted sex offenders 17.545 from the legislature’s authority to class, a than require as rather individual “legislate with respect to convicted sex dangerousness, of their determination as offenders a class.” U.S. at punishment Miller, does make 123 S.Ct. 1140. Doe v. supra. under the Post Facto Ex Clause. majority regulatory also finds the Doe, 103-04, v. Smith 538 U.S effect of KRS 17.545 excessive because the change restricted areas can protected majority distinguish seeks Smith go. sites come and We have been by noting imposes record, to anything referred in the howev- more onerous burden than the mandatory er, suggesting protected change sites in that registration issue case. It cites frequency undue or that Baker has Hendricks, swpra, Kansas which the subjected been changes. such Absent upheld Supreme Court the retroactive-ap- record, majority’s speculation on plication of a providing Kansas statute point nothing amounts but again its dangerous the civil commitment of sex of- usurpation of Assembly’s pub- the General passed fenders. That statute constitution- policy lic prerogative. muster, Court explained, part

al statutory because the scheme included in- CONCLUSION dangerous- dividualized assessments of sum, I strongly disagree with the majority ness. The asserts that the resi- majority’s conclusion that KRS 17.545 is a dence restrictions issue here are more subject ex like civil commitment than mandatory reg- limitations. impose The statute does not istration, and that without individualized punishment; traditional it is forward look- dangerousness assessments of those re- ing, retributive; it rationally serves strictions are excessive. public the vital safety reducing function of The flaw is that here residence restric- potential contacts between child victims tions are even like less civil commitment recidivists; potential and sex offense and it they than are like banishment. Regis- does so imposing disproportionate without being trants are against confined civil disabilities. I find majority’s wills, they merely being are told not to analysis strained contrary uncon- reside certain areas and worst to I vincing, dismayed am both its from they already move where reside. disregard nearly prece- unanimous majority imposition characterizes this upholding dent the retroactive application “drastic,” fact, having move, but legislation of similar in other states eviction, foreclosure, whether as a result its Assembly’s invasion the General domain, eminent or zoning change, is a sphere expertise authority. Ac- common legal consequence and does not cordingly, respectfully I dissent. underlying serve render the laws puni- Far being tive. involuntarily con- MINTON, C.J., joins.

fined, Baker has at most significantly been

inconvenienced, and, in light of the fact

that convicted sex offenders are more like-

ly against to offend gen- children than the population, our

eral sister courts have

found inconvenience not such as to

remove residence restrictions such as KRS notes he moved residing him from in his Kentucky shortly charges before were former there. residence filed when Reading, restrictions in Disability Imposes significant’ D. The KRS 17.545 is ‘most nonpunitive purpose Light Is Not Excessive In Of Its that the stat- factor in our determination Purpose. Vital punitive.” are not ute’s effects omitted). (citation Smith, even if a ra- regulation Under must, it acknowledges, as majority tionally serves a non-punitive purpose, it regulatory Assembly’s legitimate, if still be deemed the disabili- safety, opines that public but concern imposes it ty or restraint excessive with is an irrational means to serve KRS 17.545 respect purpose. majority because does not public safety end disability. characterizes KRS 17.545’s —its problem by eliminat- solve the recidivism potential requirement registrants for a sex ing any opportunities and all buffer zones— n away protected move

Case Details

Case Name: Commonwealth v. Baker

Court Name: Kentucky Supreme Court

Date Published: Oct 1, 2009

Citation: 295 S.W.3d 437

Docket Number: 2007-SC-000347-CL

Court Abbreviation: Ky.