JOHN DOE, Appellee, v. KIRK THOMPSON, DIRECTOR OF THE KANSAS BUREAU OF INVESTIGATION, and FRANK DENNING, JOHNSON COUNTY, KANSAS, SHERIFF, Appellants.
No. 110,318
(373 P.3d 750)
filed April 22, 2016.
Christopher M. Grünewald, assistant attorney general, argued the cause, and Ward E. Loyd, assistant attorney general, and Derek Schmidt, attorney general, were with him on the briefs for appellant Kirk Thompson, and Kirk T. Ridgway, of Ferree, Bunn, Rundberg, Radom & Ridgway, Chartered, of Overland Park, was with him on the briefs for appellant Frank Denning.
Christopher M. Joseph, of Joseph Hollander & Craft, LLC, of Topeka, argued the cause, and Carrie E. Parker, of the same firm, was with him on the brief for appellee.
James R. Shetlar, of Overland Park, was on the brief for amicus curiae The National Center for Victims of Crime.
Jessica R. Kunen, of Lawrence, was on the brief for amicus curiae American Civil Liberties Union Foundation of Kansas.
The opinion of the court was delivered by
Johnson, J.: Plaintiff, proceeding under the pseudonym John Doe, filed a declaratory judgment action against agents of the State, claiming that retroactive application of the 2011 amendments to the Kansas Offender Registration Act,
The State appealed the district court’s judgment, arguing that the district court erred by (1) refusing to strike inadmissible evidence submitted in support of Doe’s motion for summary judgment; (2) taking judicial notice of certain journal articles; and (3) concluding that the KORA amendments violated the Ex Post Facto
FACTUAL AND PROCEDURAL OVERVIEW
In 2003, after being charged with inappropriately touching or fondling a 14- or 15-year-old child, Doe pled guilty to and was convicted of one count of indecent liberties with a minor, in violation of
At the time of his conviction, KORA required Doe to register with both the Kansas Bureau of Investigation (KBI) and the Johnson County Sheriff’s Office for a period of 10 years from the date of his conviction, given that he was not incarcerated.
Information from the registration form, such as the offender’s name, age, address, gender, race, and photograph, is available for public access on the Johnson County, Kansas, Sheriff’s website, which allows the public to search for offenders by name or geographical location. In addition, the website contains a “share and bookmark” feature that allows users to share registry information via email and other Internet information sharing resources.
The KBI’s website provides even more information for public access, including such additional information as the offender’s hair and eye color, the dates of offense and conviction, the county of conviction, and the age of the victim. It also allows the public to search for an offender by name and geographical location. The public can also learn if a phone number, email, or Facebook identity belongs to an offender. Finally, the KBI website provides a community notification system that allows an individual to be notified by email when a registered offender registers a home, work,
Before Doe was scheduled to complete his reporting requirements, on June 15, 2011, the KBI sent a letter to all registered offenders, including Doe, detailing recent legislative amendments to KORA that were to become effective on July 1, 2011. The letter advised Doe that the amendments were retroactive and would apply to all offenders regardless of when their underlying offenses occurred. Particularly germane to Doe was the notification that his period of registration had been extended from 10 years to 25 years after conviction, i.e., Doe’s KORA completion date was changed from the year 2013 to the year 2028.
In response, Doe filed a petition for declaratory judgment against KBI director Kirk Thompson and Johnson County, Kansas, Sheriff Frank Denning (hereafter collectively referred to as “the State”). Doe sought a judicial determination that the retroactive application of the 2011 KORA amendments, particularly the extension of the registration period, violated the Ex Post Facto Clause by effecting an after-the-fact increase in punishment for a previously committed crime. Doe sought, and was granted, leave to proceed with his lawsuit using a pseudonym in order to protect his identity, his family members’ identities, and the identity of the victim in the underlying criminal case.
Both parties filed motions for summary judgment. To his motion, Doe attached affidavits and journal articles. The affidavits described how the registration requirements had adversely impacted Doe and his family. The journal articles provided general discussions of the difficulties that sex offenders encounter due to the registration requirements, together with social science findings regarding the impact that registration laws have on recidivism. The State filed a motion to strike specific portions of the affidavits, claiming that they were “replete with testimony unsupported by specific material facts or personal knowledge or both; inadmissible hearsay testimony”; and contained lay opinion testimony that lacked proper foundation. In addition, the State contended that Doe’s motion for summary judgment “inappropriately attempts to use general law journal articles and other publications in lieu of testimony to establish certain facts.”
The State filed a timely appeal, invoking this court’s jurisdiction pursuant to
DENIAL OF STATE’S MOTION TO STRIKE MATERIAL FROM PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
The State argues that the district court erred in failing to strike certain evidence that Doe submitted in support of his motion for summary judgment. Specifically, the State complains about: (1) testimony contained in the affidavits that was not based on personal knowledge; (2) inadmissible hearsay evidence contained within the affidavits; and (3) purported “legislative facts” contained in journal articles, which forms the basis of the second issue discussed below. The State contends that the error was unfairly prejudicial because several of the objectionable affidavit statements “were recited by the district court as uncontroverted material facts.” Doe claims that the State’s argument is a “straw man,” because the statements were not relied upon by the district court in deciding the summary judgment motion.
Standard of Review
The State challenges the legal basis upon which the district court considered the affidavits and journal articles in conjunction with
To the extent that we are called upon to interpret our judicial notice statute,
Analysis
We begin with the State’s challenges to the affidavits of John Doe and his wife, Jane Doe.
“A supporting or opposing affidavit or declaration must be made on personal knowledge, set out facts that would be admissible in evidence and show that the affiant or declarant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit or declaration, a sworn or certified copy must be attached to or served with the affidavit or declaration. The court may permit an affidavit or declaration to be supplemented or opposed by depositions, answers to interrogatories or additional affidavits or declarations.”
Affidavits submitted in support of, or in opposition to, a summary judgment motion must set forth evidence in a form that would be admissible at trial. Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 285-86, 261 P.3d 943 (2011). Moreover, Kansas Supreme Court Rule 141(d) (2014 Kan. Ct. R. Annot. 258) provides that a “party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.”
Although the State’s motion to strike objected to 33 of the 44 paragraphs contained in Doe’s affidavit and 15 of the 19 paragraphs contained in Jane Doe’s affidavit, the State’s brief in this appeal narrowed the focus of their objections to 12 paragraphs in Doe’s affidavit and 6 paragraphs in Jane Doe’s affidavit. The challenged paragraphs deal generally with how the registration has impacted
With respect to the Does’ children, the affidavits stated that other parents had instructed their children not to associate with the Doe family; that the Doe children had been teased at school and had come home crying because their classmates had called Doe a “bad man,” a “pervert,” or a “pedophile”; that the children were only repeating what they heard their parents say; and that the parents knew nothing about Doe except what could be reviewed on the offender registry. The State complains that the Does were not personally present to hear what the other children had said or what they had heard from their parents, and that the Does could not personally know whether the other children’s parents had accessed the registry or had obtained their knowledge from some other source.
The State’s assertion that the affiants lacked personal knowledge has some merit with respect to the speculation about what the schoolmates’ parents told them or that the parents obtained their knowledge of Doe by accessing the registry. But the Does observed first-hand the trauma their children had experienced and personally heard the children explain that the source of that mental anguish was teasing and name-calling by their schoolmates. To the extent the State is arguing hearsay,
With respect to his employment, Doe’s affidavit stated that he had continued to work for a corporation throughout his prosecution and even after his conviction, but that he “was terminated once [his] presence on the Offender Registry was brought to the attention of [his] employer.” Doe asserted that someone had told his manager that he was listed as a sex offender, whereupon the manager terminated Doe and had him escorted from the building. Doe
Doe also testified about his attempts to find employment commensurate with his education, skills, and abilities. He said prospective employers always rejected him as soon as he disclosed his registration status. Some even told him to come back when he was “off the list.”
The State’s brief makes the somewhat confusing argument that Doe had “provided no basis to testify to the truth about [his] former manager’s thoughts about Doe’s registration status,” for example, that there were corporate concerns about liabilities or that a coworker had found Doe on the registry and told the former manager. But, of course, Doe’s basis for testifying about what his former manager said was that the manager was saying those things directly to Doe, while firing him. Moreover, whether the manager was being totally truthful in all that he said to Doe is not really the point. Rather, what is germane is that the manager told Doe that he was fired because his name was on the registry.
Again, although not argued by the parties, it appears that the manager’s statement can be admitted under
Perhaps Doe might have obtained an affidavit directly from the manager and avoided the State’s hearsay challenge. But we recently opined that “[a] statement contemporaneously describing a declarant’s belief or intention is inherently more trustworthy than a statement made after the fact, when incentives to embellish or fabricate may have arisen.” State v. Cosby, 293 Kan. 121, 131, 262
With respect to housing, Doe’s affidavit described his attempts to rent a place to live. Even though his rental applications reflected prior military service, an excellent credit history, and sufficient income to support the monthly rent, landlords repeatedly refused to rent to Doe. The landlords related to Doe that they had no problem with the registration per se but that the map on the website showing where sex offenders live was a problem because it would cause current tenants to leave and potential tenants to avoid the area.
In its brief, the State makes no separate argument as to why this statement should be struck, other than to refer back to its comprehensive presentation to the district court, which included tables specifying specific objections to each paragraph. But Doe could certainly testify that, after he began disclosing that he was listed on the sex offender registry, he was repeatedly denied housing. Then it would be a reasonable inference to draw that a website map showing the location of registered sex offenders would be an impediment to a registrant obtaining an apartment.
The only other affidavit paragraph that drew a specific argument from the State on appeal concerned Doe being denied admittance to visit neighbors at a hospital. The affidavit related that at the entrance, a security guard swiped Doe’s driver’s license but then advised him that the hospital could not accommodate his visit and that he had to leave. The affidavit added the declaration: “I was only barred from entering because I was listed on the Offender Registry, not because of my crime.” The State argues that “Doe’s testimony about the truth of whether a hospital barred his entry solely because of his registration status and not his crime is not founded on personal knowledge of the hospital’s policies or instructions to its guards.”
The State’s concern about whether the guard’s actions were based upon hospital policy or instructions misses the point. As will be discussed later, Doe’s status as a registrant was identified on his
Nevertheless, to the extent the affidavits contain inadmissible evidence, a remand to the district court is unnecessary. The principal issue before us is whether the district court’s summary grant of plaintiff’s declaratory judgment was erroneous, as a matter of law. Accordingly, we will conduct a de novo review and can disregard any information that was improperly contained within the affidavits.
Judicial Notice of Journal Articles
The State next complains that the district court twice erred in its handling of the 16 journal articles attached as appendices to Doe’s motion for summary judgment. First, it contends that the district court was wrong in ruling that the Kansas judicial notice statute does not apply to “legislative facts.” Then, the district court compounded the error by actually taking judicial notice of the journal articles to support its determination that KORA violates ex post facto.
While Doe did not cite to the articles in his statement of uncontroverted facts, he used them to supply the factual premise for some of his legal arguments. For example, Doe referenced the journal articles to support his arguments that offender registration and notification requirements create adverse collateral consequences for registered sex offenders, e.g., that registered sex offenders face employment difficulties, challenges to obtain housing, and social stigmatization. He cited to other journal articles in support of the argument that such difficulties can increase a sex offender’s recidivism rate; that the offense-based tier system of determining registration lengths was not reasonably related to the danger of recidivism; and that “[c]ontemporary studies overwhelmingly indicate that registration and notification laws do not reduce sex crime recidivism rates.”
The resolution of this issue will depend on the applicability of our judicial notice statute,
Analysis
The State’s motion to strike the journal articles asserted that Doe was inappropriately using the law journal articles and other publications as a substitute for the competent and admissible testimony needed to establish the material facts upon which his arguments relied. The State also argued that Doe’s legal argument impermissibly relied on contentions of fact not contained in his statement of uncontroverted facts, in violation of Kansas Supreme Court Rule 141(a)(1). In response, Doe argued that the journal articles were not offered to prove adjudicative facts, but instead were relevant to establish legislative facts, to which the rules of evidence do not apply.
In denying the State’s motion to strike, the district court concluded that the journal articles containing results of social science research studies were admissible as legislative facts. Accordingly, the district court opined that “[b]ecause the studies are legislative facts, the judicial notice statutes do not apply, and the Court may take judicial notice of the studies when ruling on the parties’ summary judgment motions.” In its memorandum decision and order, the district court placed some reliance upon the social science research contained within certain journal articles.
On appeal, the State argues that Kansas’ judicial notice statute, unlike federal law, makes no distinction between adjudicative and legislative facts, and that judicial notice of the social science evidence relied upon by the district court was not statutorily authorized. In addition, the State contends that the journal articles did not contain legislative facts; that the articles did not support the definitive conclusions reached by the district court; and that Doe was required to have an expert witness to authenticate, explain, validate, or adopt the conclusions upon which the district court relied. Doe counters that the journal articles do constitute legislative facts to which
Doe’s argument that appellate courts have selectively used “legislative facts” to support a holding is not entirely without merit. For instance, in Smith v. Doe, 538 U.S. 84, 103, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), which will be discussed in detail below, the United States Supreme Court refers to “grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class.” The high Court even labels the risk of recidivism posed by sex offenders as “‘frightening and high.’” 538 U.S. at 103 (quoting McKune v. Lile, 536 U.S. 24, 34, 122 S. Ct. 2017, 153 L. Ed. 2d 47 [2002]). It gives one pause to think that the “legislative facts” frequently used to justify sex offender registration laws might not be completely accurate, if Doe’s journal articles are to be believed. Nevertheless, the question here is whether our judicial notice statute applied to Doe’s appended journal articles, and we find that it does.
A major impediment to Doe’s argument is the statutory language. Unlike the federal rule of evidence,
Perhaps more importantly, our statute appears to govern the types of facts which would fall within the category of “legislative facts.” For example,
Accordingly, even if the district court was correct in determining that the information in the journal articles constituted legislative facts, it nevertheless erred in finding that
Here, it appears that if the journal articles reporting social science findings fall within any statutory category it would be the provision for “specific facts and propositions of generalized knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.”
The State contends that the articles are not indisputably accurate because the subjects of recidivism and the measure of the benefits of public notification laws generally are not closed subjects. Instead, the State argues, the submitted articles are simply “recent scholarship on a debated subject.” We agree. While it does appear that there is an evolution of knowledge and opinion taking place with respect to sex offender recidivism and the effects of public notification laws, the articles appended by Doe to his summary judgment motion could not be deemed to be the definitive final word on the topic, i.e., were not sources of indisputable accuracy.
But, again, we need not remand to the district court. We can simply conduct our de novo review without reference to the appended articles.
Use of a Pseudonym
Before proceeding to the principal issue before us, we pause briefly to address the State’s complaint that the district court should not have permitted Doe to proceed under a pseudonym.
Standard of Review
Both parties agree that an abuse of discretion standard of review applies when considering a district court’s decision to allow an action to proceed anonymously. See Unwitting Victim v. C.S., 273 Kan. 937, 944, 47 P.3d 392 (2002). Our familiar abuse of discretion standard is stated as follows:
“‘Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.’ State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).” State v. Nelson, 296 Kan. 692, 694, 294 P.3d 323 (2013).
This court has expressly held that “[a]lthough anonymous or pseudonymous litigation is an atypical procedure, where an important privacy interest outweighs the public interest in the identity of the plaintiff, the plaintiff should be allowed to proceed anonymously.” Unwitting Victim, 273 Kan. at 944. The Unwitting Victim court balanced the plaintiff’s claimed right to privacy against the public interest militating against pseudonymity, utilizing nine factors: (1) The extent to which the identity of the litigant has been kept confidential; (2) the bases upon which disclosure is feared or sought to be avoided and the substantiality of these bases; (3) the magnitude of public interest in maintaining the confidentiality of the litigant’s identity; (4) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigant’s identities; (5) the undesirability of an outcome adverse to the pseudonymous party and attributable to his or her refusal to pursue the case at the price of being publicly identified; (6) whether the party seeking to sue pseudonymously has illegitimate ulterior motives; (7) the universal level of public interest in access to the identities of the litigants; (8) whether the litigant is a public figure; and (9) whether opposition to the pseudonym is illegitimately motivated. 273 Kan. at 947-48.
As the State acknowledges, the district court utilized the nine factors to conduct a balancing test, comparing the public’s interests versus Doe’s privacy rights. In other words, the district court used the correct legal standard.
The State does not point us to any place in the district court’s careful consideration of the factors where the judge was arbitrary, fanciful, or unreasonable. We have carefully reviewed the court’s rulings on each of the factors and cannot discern anything that was arbitrary, fanciful, or unreasonable. The State has failed to establish that no reasonable person would have taken the view adopted by the trial court. To the contrary, the State has offered no rational explanation as to why the public’s safety would be better protected by disclosing the identity of an individual challenging KORA on purely legal grounds as essentially a class representative. Rather, its complaint appears to be simply that the court did not assess the
Finally, the State’s challenges to the sufficiency of the evidence are unavailing. The district court had evidence to support its findings. We decline the State’s implicit invitation to reweigh that evidence.
In short, the district court did not abuse its discretion when it permitted Doe to proceed pseudonymously.
EX POST FACTO CLAUSE VIOLATION
The State’s substantive issue is whether the 2011 amendments to KORA can be retroactively applied to Doe without violating the Ex Post Facto Clause. The State contends that, even though Doe committed his crime before the 2011 amendments, the Ex Post Facto Clause is simply inapplicable because the amended KORA is still a regulatory scheme that is civil and nonpunitive. Our resolution will hinge on whether the 2011 amendments rendered the KORA statutory scheme so punitive in effect as to negate any implied intent to make it “civil.” See Smith, 538 U.S. at 92 (citing Kansas v. Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 138 L. Ed. 2d 501 [1997]). We find that they do.
But before proceeding, we pause to clarify what we are not deciding today. We are not saying that the 2011 version of KORA is unconstitutional as applied to any sex offender who commits a covered crime on or after its July 1, 2011, effective date. Although we are finding that the KORA statutory scheme is now penal in nature, the legislature is permitted to impose penal sanctions on future violators. We are saying that the legislature cannot add today’s new sanction to a punishment imposed yesterday. The only sex offenders affected by this decision are those that have been complying with the Kansas registration requirements in effect when they committed their offenses. And this decision does not relieve any registrant from completing the registration requirements in effect when he or she committed the applicable offense. Further, this opinion will have no effect on any offender’s obligations under federal law.
Likewise, as emphasized in State v. Myers, 260 Kan. 669, 700,
Standard of Review
“When the application of a statute is challenged on constitutional grounds, this court exercises an unlimited, de novo standard of review. State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996).” State v. Cook, 286 Kan. 766, 768, 187 P.3d 1283 (2008).
Analysis
Ex Post Facto Clause
The constitutional protection in issue here is found in Article I, § 10, which simply states, in relevant part, that “[n]o State shall . . . pass any . . . ex post facto Law.” We have held that a law is ex post facto if two critical elements are present: (1) The law is retrospective, and (2) the law disadvantages the offender affected by it.” State v. Gleason, 299 Kan. 1127, 1159-60, 329 P.3d 1102 (2014) (citing State v. Jaben, 294 Kan. 607, 612, 277 P.3d 417 [2012]; State v. Cook, 286 Kan. 766, 770, 187 P.3d 1283 [2008]).
Recently, this court clarified that “retroactively applied legislation that simply ‘alters the situation of a party to his disadvantage’ does not, in and of itself, violate the Ex Post Facto Clause. The disadvantage, to be unconstitutional under the Clause, must fall within one of the categories recognized in Beazell [v. Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 70 L. Ed. 216 (1925)].” State v. Todd, 299 Kan. 263, 277, 323 P.3d 829 (2014). The Beazell category that is applicable here is “‘“[a]ny statute . . . which makes more burdensome the punishment for a crime, after its commission.”’” Todd, 299 Kan. at 277 (quoting Beazell, 269 U.S. at 169-70); see also Gleason, 299 Kan. at 1159-60. Doe claims, and the district court found, that the 2011 amendments to KORA made the punishment for Doe’s 2001-2002 crimes more burdensome.
But “[t]he constitutional prohibition on ex post facto laws applies
State v. Myers
Kansas first considered whether a sex offender registration law ran afoul of the Ex Post Facto Clause in Myers, which was filed in 1996. Myers related the relatively brief history of Kansas’ law, beginning in 1993 with the Habitual Sex Offender Registration Act (HSORA), which required repeat offenders to register for 10 years. Registration consisted of a statement in writing that included the offender’s name, date of birth, social security number, fingerprints, and a photograph, as well as information on the offense(s) committed and the dates/location of conviction(s).
The following year, the act was amended and renamed the Kansas Sex Offender Registration Act (KSORA) because it included first-time offenders, who were subject to the 10-year registration term. Second or subsequent offenses resulted in lifetime registration. KSORA also allowed for public inspection of registration information at the sheriff’s office and specifically made the registration information subject to the Open Records Act. L. 1994, ch. 107, secs. 1-7.
Myers had committed his offense prior to the effective date of KSORA. Consequently, Myers claimed that the retroactive application of KSORA’s reporting and disclosure requirements violated the Ex Post Facto Clause. The State conceded that KSORA was being retroactively applied to Myers but argued that the intent and purpose of KSORA was regulatory, rather than punitive. The Myers court agreed with the State, holding that while KSORA contained no express statement of legislative intent or purpose, “the
But Myers recognized that its analysis did not end with its “public safety” conclusion. Rather, it had to determine “whether the ‘statutory scheme was so punitive either in purpose or effect as to negate that intention.’ United States v. Ward, 448 U.S. 242, 248-49, 65 L. Ed. 2d 742, 100 S. Ct. 2636 (1980).” 260 Kan. at 681. Ultimately, Myers determined that the registration component of KSORA was remedial but that the public disclosure provisions of the act were too punitive in effect to withstand constitutional scrutiny. Specifically, the Myers court held:
“For Myers, KSORA’s disclosure provision must be considered punishment. We hold that the legislative aim in the disclosure provision was not to punish and that retribution was not an intended purpose. However, we reason that the repercussions, despite how they may be justified, are great enough under the facts of this case to be considered punishment. The unrestricted public access given to the sex offender registry is excessive and goes beyond that necessary to promote public safety.” 260 Kan. at 699.
Enroute to that holding, Myers found that the practical effect of KSORA’s unrestricted dissemination of registration information “could make it impossible for the offender to find housing or employment” and that “[u]nrestricted public access to the registered information leaves open the possibility that the registered offender will be subjected to public stigma and ostracism.” 260 Kan. at 696. Then, the court opined that “[t]o avoid the ex post facto characterization, public access [to registration information] should be limited to those with a need to know the information for public safety purposes” and that those authorized to access the information should only use it for public safety purposes. 260 Kan. at 700.
The State urges us to accept Myers’ holding as being equally applicable to the registration component of KORA, but to find that Myers’ holding on the public disclosure component was effectively overruled by the United States Supreme Court’s decision in Smith.
Smith v. Doe
In Smith, the United States Supreme Court held that retroactive application of the Alaska Sex Offender Registration Act (ASO-
Under the intent portion of the test, “[w]hether a statutory scheme is civil or criminal ‘is first of all a question of statutory construction.’” Smith, 538 U.S. at 92 (quoting Hendricks, 521 U.S. at 361). If the legislature intended to punish, the ex post facto violation is established and no inquiry into the effects of the act is required. 538 U.S. at 92-93.
The first inquiry under intent is whether “‘the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.’” Smith, 538 U.S. at 93 (quoting Hudson v. United States, 522 U.S. 93, 99, 118 S. Ct. 488, 139 L. Ed. 2d 450 [1997]). The Court relied upon the Alaska Legislature’s express statutory finding that “‘sex offenders pose a high risk of reoffending’ and identified ‘protecting the public from sex offenders’ as the ‘primary governmental interest’ of the law.” Smith, 538 U.S. at 93 (quoting 1994 Alaska Sess. Laws, ch. 41, § 1). Citing to its earlier decision in Hendricks, the Court reiterated that “an imposition of restrictive measures on sex offenders adjudged to be dangerous is ‘a legitimate nonpunitive governmental objective and has been historically so regarded.’” Smith, 538 U.S. at 93 (quoting Hendricks, 521 U.S. at 363).
Smith held that the stated nonpunitive intent of the ASORA was not altered by the Alaska Constitution’s inclusion of protecting public safety as a purpose for the criminal justice system, by the legislature’s partial codification of the ASORA in the criminal procedure code, or by the requirement for courts accepting criminal pleas and entering criminal judgments to inform defendants of the
To say Doe‘s housing and employment problems flowed from the public record of his conviction, rather than from the notification provisions of KORA, defies logic and common sense. First, one would have to question how many members of the general public are proficient at accessing and interpreting archived court records. Next, those records would not identify the offender‘s place of employment, so that a public relations reaction to the corporate employer would be a remote possibility, whereas the offender is tied to the employer in the registry. Likewise, the criminal defendant‘s address at the time of conviction, even if contained within the public portion of the court records, would not necessarily be the same as when the record was accessed. Moreover, although a defendant on probation must notify the defendant‘s probation officer of a change of address, that information is not open to the public. Certainly, potential landlords would have no concern that other tenants would ascertain the offender‘s current address from the prior court record. That information would have to come from KORA.
Blaming the public record of conviction, rather than KORA registration and dissemination, for housing and employment difficulties also defies our precedent. Myers, 260 Kan. at 696. Certainly, the ensuing increase in the number of people with access to the Internet since Myers, along with the increased ease with which information can
Accordingly, we affirm the district court‘s determination that KORA‘s statutory scheme works an affirmative disability or restraint on the offender.
The next factor is whether the statutory scheme promotes the traditional aims of punishment: deterrence and retribution. Smith acknowledged the deterrent effect of the law but summarily considered that to be a necessary component of effective government regulation. Smith then rejected the lower court‘s conclusion that ASORA was retributive for basing the length of the reporting requirement on the extent of wrongdoing, rather than the risk posed by the offender. It concluded, without further explanation, that the broad categories and length of required reporting were “reasonably related to the danger of recidivism” and, thus, consistent with the regulatory objective. 538 U.S. at 102. But cf. Com. v. Baker, 295 S.W.3d 437, 444 (Ky. 2009) (“When a restriction is imposed equally upon all offenders, with no consideration given to how dangerous any particular registrant may be to public safety, that restriction begins to look far more like retribution for past offenses than a regulation intended to prevent future ones.”).
If the 10-year length of reporting was reasonably related to the danger of recidivism in 2003, when Doe was convicted and the year after Smith was decided, one has to wonder what happened in 2011 to make the reasonable relationship two and a half times greater. The State has provided nothing to support the reasonableness of the 25-year reporting term. Even Smith‘s “legislative fact” in support of ASORA‘s length of reporting was that sex offenders may reoffend “as late as 20 years following release.” 538 U.S. at 104. KORA‘s new reporting term is 25% longer than Smith‘s outside limit. Moreover, Doe‘s “legislative fact” from current social science indicates that the risk of recidivism actually decreases as the offender ages. Even if we do not take judicial notice of that “legislative fact,” we can conclude that there is no evidentiary or logical support for the increase in reporting term. Such arbitrariness is inherently retributive.
The next factor—which Smith labeled “a ‘[m]ost significant’
Arguably, under the current KORA, public safety has become a pretext. Without differentiating between the 18-year-old immature, marginally intelligent, sexually naive person who succumbs to the seduction of a mature-acting, sexually informed 15-year-old child and the 30-year-old confirmed pedophile that rapes preschoolers and is not amenable to rehabilitation, KORA fails to effectively notify the public of the danger of recidivism. Too much is too little. Moreover, that flaw is accentuated by KORA‘s prohibition in
On the flip side, the registry could be underinclusive because only convicted sex offenders must register. One who has engaged in the same conduct as Doe might well avoid being subjected to the rigors of registration by pleading to a non-sex offense, by being acquitted because of a suppressed confession, or by having a conviction overturned on appeal because of an illegal search or some other reason, other than insufficient evidence. One can envision that a prosecutor might use offender registration as a plea bargain-
The final factor is whether the statutory scheme is excessive in relation to its regulatory purpose. Our discussion of the other factors has touched upon the excessive nature of KORA, at least as amended in 2011. For instance, the information a registrant is required to provide has increased dramatically from that required in the Myers era, to include such items as the registration number of owned watercraft.
And the penalty for noncompliance with the stringent and complicated registration rules has been elevated to a level 6 person felony, as opposed to being a misdemeanor under the act reviewed in Smith. Granted, the countering argument is that the increased penalty is for committing a new crime. But the sex or other offense is a necessary predicate to any conviction for failing to comply with KORA, because only those who have been convicted of a qualifying offense are subject to the registration requirements. Moreover, when the penalty for failing to comply with registration exceeds the penalty for the crime triggering the registration requirement, the statutory scheme loses its civil regulatory blush.
Smith relied heavily on its “legislative facts” to justify ASORA‘s excessive provisions, which may or may not remain valid. But what we do know is that Smith‘s reliance on the notification system being “passive,” 538 U.S. at 105, does not translate to today‘s system under KORA. For instance, the KBI will provide active notification under certain circumstances, and, as the district court correctly noted, “the current internet notification schemes are more aggressive than they were when Smith was decided, offenders are at a greater risk of suffering ostracism and even vigilante acts by members of the community.” Again, Myers got it right with respect to the effects of unlimited public dissemination of registration information.
In finding that the current KORA‘s statutory scheme is so punitive in effect as to negate the implied legislative intent to deem it
In short, we affirm the district court. KORA as amended in 2011 is punitive in effect, and the amended statutory scheme cannot be applied retroactively to any person who committed the qualifying sex offense crime prior to July 1, 2011.
MICHAEL J. MALONE, Senior Judge, assigned
* * *
BILES, J., concurring in part and dissenting in part: I agree with the majority that our legislature intended for the Kansas Offender Registration Act (KORA) and its 2011 amendments to be a civil regulatory scheme for public safety that was nonpunitive. I also agree the proper retroactivity test boils down to whether the 2011 amendments that prompt the present controversy render KORA so punitive as applied to sex offenders as to negate that intent. See Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003) (applying intent-effects test for federal Ex Post Facto Clause purposes). Our state constitution does not contain a similar provision or suggest a different analytical process. See State v. Todd, 299 Kan. 263, 276, 323 P.3d 829 (2014) (no Ex Post Facto Clause in Kansas Constitution).
Standard of review
Our standard of review is well known when considering a challenge to a statute‘s constitutionality; yet its recitation in the majority opinion tellingly ignores critical components, namely: we always presume legislative enactments are constitutional and we resolve all doubts in favor of a statute‘s validity. State v. Cheeks, 298 Kan. 1, 4, 310 P.3d 346 (2013); Board of Miami County Comm‘rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 315, 255 P.3d 1186 (2011). This presumption of constitutionality emanates from the critical doctrine of separation of powers, which recognizes that courts are concerned only with the legislative power to enact statutes—not with the wisdom behind them. Miller v. Johnson, 295 Kan. 636, 646, 289 P.3d 1098 (2012).
We do not declare a statute unconstitutional unless it is clear beyond a reasonable doubt that the statute infringes on constitutionally protected rights. State v. Carr, 300 Kan. 1, 285, 331 P.3d 544 (2014) (quoting State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 [2006]). And as the United States Supreme Court noted in Smith, “ ‘only the clearest proof’ of punitive effect is sufficient to override the legislature‘s intent to create a civil regulation.” 538 U.S. at 91 (quoting Hudson v. United States, 522 U.S. 93, 100, 118 S. Ct.
The majority‘s analysis deviates from these principles by framing the question as an examination into whether differences between KORA and the Alaska statute the United States Supreme Court upheld in Smith “mandates a different result.” 304 Kan. at 316. But viewing the controversy in this way ignores the presumption of constitutionality, resourcefully casts off the numerous decisions cited below that have upheld various registration requirements against federal retroactivity challenges, and renders meaningless the “clearest proof” standard stated in Smith. The majority‘s stated reason for this approach is that federal circuit court opinions are not binding on state supreme courts, so the majority will not consider whether their holdings may inform our thinking. This smacks of simply being a means to a predetermined end.
Discussion
The Ex Post Facto Clause of the United States Constitution prohibits state and federal governments from retroactively imposing additional punishment for a criminal offense.
Federal appellate courts have unanimously held retroactive application of the federal offender registration requirements found in SORNA does not violate the Ex Post Facto Clause. United States v. Brunner, 726 F.3d 299, 303 (2d Cir. 2013); United States v. Parks, 698 F.3d 1, 5-6 (1st Cir. 2012); United States v. Felts, 674 F.3d 599, 606 (6th Cir. 2012); United States v. Elkins, 683 F.3d 1039, 1045 (9th Cir. 2012); United States v. Leach, 639 F.3d 769, 773 (7th Cir. 2011); United States v. W.B.H., 664 F.3d 848, 860 (11th Cir. 2011); United States v. Shenandoah, 595 F.3d 151 (3d Cir.), cert. denied 560 U.S. 974 (2010), abrogated on other grounds by Reynolds v. United States, 565 U.S. 432, 132 S. Ct. 975, 181 L. Ed. 2d 935 (2012); United States v. Gould, 568 F.3d 459, 466 (4th Cir. 2009), cert. denied 559 U.S. 974 (2010); Young, 585 F.3d at
In addition, federal circuit courts have upheld state sex offender registration laws against federal ex post facto challenges, even when those state laws contained provisions more expansive in scope and impact than either SORNA or the Alaska provisions addressed in Smith. See Litmon v. Harris, 768 F.3d 1237, 1242-43 (9th Cir. 2014) (upholding California requirement that offenders register in-person every 90 days); American Civil Liberties Union of Nevada v. Masto, 670 F.3d 1046, 1051, 1058 (9th Cir. 2012) (upholding Nevada law expanding category of individuals who must register, increasing time period offenders were subject to registration, adding in-person registration requirements, and expanding law enforcement obligations to notify specified entities that an offender resided nearby); Doe v. Bredesen, 507 F.3d 998, 1000 (6th Cir. 2007) (upholding Tennessee law requiring, among other things, extended lifetime registration and satellite-based monitoring with wearable GPS device); Hatton v. Bonner, 356 F.3d 955, 967 (9th Cir. 2004) (upholding California law containing several provisions different from the Alaska statute analyzed in Smith).
The majority disingenuously characterizes this unanimous body of caselaw as just the decisions of “a number of Federal Circuit Courts of Appeal,” which it then discounts by noting the obvious, i.e., there are differences between the federal SORNA and our
To answer the question presented, we apply the two-step test from Smith to determine whether the 2011 KORA amendments constitute an additional form of punishment when applied to offenders required to comply with them because of convictions that occurred before the amendments were enacted. See Smith, 538 U.S. at 92. And as noted, the majority correctly concludes in the first step that the Kansas Legislature intended for its 2011 amendments to preserve KORA’s status as a civil regulatory scheme. 304 Kan. at 317. After that, we move to the second step, where we must decide whether those 2011 amendments are “‘“so punitive either in purpose or effect as to negate [the State’s] intention” to deem [KORA] “civil.”’” Smith, 538 U.S. at 92. This is where I depart from the majority’s analysis.
For this second step, we should follow the federal factors laid out in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963). See Smith, 538 U.S. at 97. Those factors consider the degree to which the regulatory scheme imposes a sanction that: (1) has historically been regarded as punishment; (2) constitutes an affirmative disability or restraint; (3) promotes the traditional aims of punishment; (4) is rationally connected to a nonpunitive purpose; (5) is excessive in relation to the identified nonpunitive purpose; (6) contains a sanction requiring a finding of scienter; and (7) applies the sanction to behavior that is already a crime. Mendoza-Martinez, 372 U.S. at 168. In Smith, the Court focused on the first five as more relevant in evaluating Alaska’s reg-
Historical Form of Punishment
The majority holds that the 2011 KORA “crosses the line drawn by Smith” by too closely resembling the shaming punishments from the colonial period. 304 Kan. at 321. KORA does this, according to the majority, by posting the registrant’s information on the Internet, “branding” a registrant’s driver’s license with the letters “RO,” and requiring quarterly registration in each location where an offender works, lives, or attends school. Let’s take each of these in turn.
Posting offender information on the Internet
As summarized below, there is overwhelming federal authority holding that Internet posting of registrant information is not analogous to historical forms of punishment. The analysis used to reach that conclusion applies in equal force to KORA, regardless of other differences the statutory schemes may have. The majority overreaches by rejecting this caselaw and adopting a contrary view.
In Smith, the United States Supreme Court held that Alaska’s offender registration act could apply retroactively and “[t]he fact that Alaska posts the information on the Internet does not alter our conclusion.” 538 U.S. at 99. The Court held the posting requirement was not akin to historical punishments despite recognizing that it subjects the offender to public shame or humiliation because most of the information related to an already public criminal record and dissemination of it furthers a legitimate governmental objective. 538 U.S. at 99. The Smith Court explained:
“[T]he stigma of Alaska’s Megan’s Law results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public. Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment. On the contrary, our criminal law tradition insists on public indictment, public trial, and public imposition of sentence. Transparency is essential to maintaining public respect for the criminal justice system, ensuring its integrity, and protecting the rights of the accused. The publicity may cause adverse consequences for the convicted defendant, running from mild personal embarrassment
to social ostracism. In contrast to the colonial shaming punishments, however, the State does not make the publicity and the resulting stigma an integral part of the objective of the regulatory scheme.” 538 U.S. at 98-99.
The Smith Court then added:
“The fact that Alaska posts the information on the Internet does not alter our conclusion. It must be acknowledged that notice of a criminal conviction subjects the offender to public shame, the humiliation increasing in proportion to the extent of the publicity. And the geographic reach of the Internet is greater than anything which could have been designed in colonial times. These facts do not render Internet notification punitive. The purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender. Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.” 538 U.S. at 99.
In so holding, the Court’s analysis recognizes the obvious—posting information on the Internet makes it far more accessible and subjects the offender to increased shame and humiliation. Nevertheless, the Court held that Internet posting did not make Alaska’s statutory scheme punitive.
The majority characterizes the Smith Court’s 2003 analysis of the Internet as “antiquated,” and then concludes: “Any suggestion that disseminating sex offender registration [information] on an Internet website reaches no more members of the public and is no more burdensome to the offender than maintaining an archived criminal record simply ignores the reality of today’s world.” 304 Kan. at 321-22.
But as seen from its holding, Smith did not base its conclusion on some old-fashioned, dial-up modem/floppy disk notion of the World Wide Web; nor did it consider accessing offender information on the Internet nothing more than a walk to the courthouse to thumb through publicly available paper files. Smith’s rationale withstands the more recent development of a mobile, smartphone Internet. Indeed, these developments can be viewed as furthering the nonpunitive, public safety ends supporting offender registration because, as Smith acknowledged, “[w]idespread public access is necessary for the efficacy of the scheme.” 538 U.S. at 99. The majority simply disagrees with the Court’s conclusion but needs a rationale for considering the question further. This
Consider first the federal notification statute, SORNA. Similar to KORA, the federal law requires that offender information including the offenders’ names, physical descriptions, photographs, criminal offenses, and criminal histories be made publicly available on the Internet. See
Nevertheless, all federal circuits addressing whether SORNA’s publication requirements are punitive have followed Smith and held they are not, despite candidly recognizing they can result in greatly increased public shame. See, e.g., Parks, 698 F.3d at 5-6 (noting the disadvantages from the publicity attendant to SORNA’s Internet requirements “are obvious” and refusing to invalidate SORNA due to “wide dissemination” of offender’s information, citing Smith); Hinckley, 550 F.3d at 937-38 (“SORNA, just as the Smith scheme, merely provides for the ‘dissemination of accurate information about a criminal record, most of which is already public’”); see also United States v. Talada, 631 F. Supp. 2d 797, 808 (S.D. W. Va. 2009) (citing Smith and upholding SORNA as a valid regulatory program even though it requires widespread Internet dissemination of offenders’ information, a community notification program, and in-person reporting).
“Active dissemination of an individual’s sex offender status does not alter the [Smith] Court’s core reasoning that ‘stigma ... results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public.’ [Citation omitted.] Though ‘humiliation increas[es] in proportion to the extent of the publicity,’ the ‘purpose and the principal effect of notification are to inform the public for its own safety.’ [Citation omitted.]” 670 F.3d at 1056.
There is also recent state court authority, relying heavily on Smith, that holds posting registered offenders’ information on the Internet is not akin to traditional shaming punishments. See Kammerer v. State, 322 P.3d 827, 834-36 (Wyo. 2014) (“Although dissemination of information relating to a registrant’s status as a sex offender may have negative consequences for the registrant, information regarding the offense is made public at the time of trial, and its publication under WSORA is merely a necessary consequence of the Act’s intent to protect the public from harm.”); State v. Letalien, 2009 ME 130, ¶ 38, 985 A.2d 4 (2009) (Internet posting of sex offender information is not punitive in purpose or effect, citing Smith; Maine and federal Ex Post Facto Clauses are coextensive); see also Doe I v. Williams, 2013 ME 24, ¶ 35, 61 A.3d 718 (2013) (following Letalien).
I would follow this abundant caselaw and hold that KORA’s Internet posting of information is not akin to historical shaming punishments. And in reaching that conclusion, I would further note the majority’s discussion of the sharing functions available on the Johnson County Sherriff’s website is irrelevant to the statute’s constitutionality because KORA does not require this capability; and, just as importantly, the majority cites no authority that would find a federal ex post facto violation because of a nonstatutorily mandated software feature added by a local law enforcement agency.
“Branding” a registrant’s driver’s license
Next, the majority declares that KORA “mimics [the] shaming of old by branding the driver’s license of a registrant with the designation, ‘RO.’” 304 Kan. at 321. The majority is referring to
The majority draws support for its view from a divided decision in Starkey v. Oklahoma Dept. of Corrections, 2013 OK 43, 305 P.3d 1004 (2013), which considered the Oklahoma Constitution’s Ex Post Facto Clause. See Okla. Const., art. 2, § 15. But I do not find Starkey persuasive for several reasons.
First, although the Oklahoma Supreme Court applied the intent-effects test, that court’s majority suggests they applied a lower standard as to when the effects of a measure are punitive under the Oklahoma Ex Post Facto Clause by noting that the United States Constitution simply establishes a floor for constitutional rights in Oklahoma. 2013 OK 43, ¶ 45 (“How we apply the ‘intent-effects’ test is not governed by how the federal courts have independently applied the same test under the United States Constitution as long as our interpretation is at least as protective as the federal interpretation.”). Second, Oklahoma’s offender registry law imposed
Offering a different analysis, the Louisiana Supreme Court’s unanimous decision in Smith v. State, 84 So. 3d 487 (La. 2012), reached the opposite conclusion regarding its driver’s license labeling and is more on point. In so holding, the Louisiana court acknowledged that including the words “sex offender” printed in orange color on an offender’s driver’s license “may be remotely similar to historical forms of punishment, such as public humiliation, [but] the immediate need for public protection was a corollary of, rather than an addendum to, the punishment for sex offenders.” Smith, 84 So. 3d at 496 n.7-8, 498. The court then concluded that the requirement of a notation on an offender’s driver’s license “may be harsh, may impact a sex offender’s life in a long-lived and intense manner, and also be quite burdensome to the sex offender, [but] we do not find them to constitute an infringement of the principles of ex post facto.” 84 So. 3d at 499.
Admittedly, the Louisiana court did not articulate whether it was relying on the federal or state constitution for its holding, but this does not appear to make a difference because that court had previously held Louisiana’s Ex Post Facto Clause offers the same protections because it was patterned after the United States Constitution. See State ex rel. Olivier v. State, 779 So. 2d 735 (La. 2001). For this reason, I find the Louisiana decision more persuasive than the Oklahoma decision.
Next, the majority labels KORA’s quarterly, in-person registration requirements for each location where the offender works, lives, or attends school as “a traditional means of punishment” by likening the requirement to probation or parole. 304 Kan. at 322. It does so without citation to any authority or explanation as to how quarterly reporting mandates offend federal ex post facto caselaw. Again, a review of the unanimous federal caselaw upholding SORNA is persuasive and leads to a contrary conclusion.
SORNA’s in-person reporting requirements differentiate between types of sex offenses in determining the frequency of in-person reporting. There must be in-person verification “not less frequently than” once a year for Tier I sex offenders, twice a year for Tier II sex offenders, and four times per year for Tier III sex offenders.
“To appear in person to update a registration is doubtless more inconvenient than doing so by telephone, mail or web entry; but it serves the remedial purpose of establishing that the individual is in the vicinity and not in some other jurisdiction where he may not have registered, confirms identity by fingerprints and records the individual’s current appearance. Further, the inconvenience is surely minor compared to the disadvantages of the underlying scheme in its consequences for renting housing, obtaining work and the consequences that were part of the package that Smith itself upheld.” 698 F.3d at 6.
See Doe v. Pataki, 120 F.3d 1263, 1281-82 (2d Cir. 1997); see also Doe v. Cuomo, 755 F.3d 105, 112 (2d Cir. 2014) (approving triennial, in-person reporting as being reasonably related to the nonpunitive, prospective goals of protecting the public and facilitating law enforcement efforts).
Admittedly, KORA’s reporting requirements are more burdensome than those in SORNA because under KORA, all sex offenders are subject to in-person registration four times per year, and drug and violent offenders must report in person a minimum of three times per year.
Consider again as an example Masto in which the Ninth Circuit rejected a federal ex post facto challenge to a Nevada law that essentially mirrored SORNA’s registration requirements, but also expanded the category of individuals required to register, added to the frequency offenders were subject to registration, and required in-person registration. Masto, 670 F.3d at 1051; see also Litmon, 768 F.3d at 1242-43 (holding California’s 90-day, in-person lifetime registration requirement does not violate federal ex post facto principles); Hatton, 356 F.3d at 965 (no evidence California’s registration requirement has an objective to shame, ridicule, or stigmatize sex offenders). These decisions strongly point in a direction that indicates KORA’s reporting requirements do not offend federal ex post facto principles.
Additionally, the majority’s analogy to probation is not persuasive. While probation/parole may have “reporting” in common in the abstract, this is only one aspect of many conditions attached to these punishments. For example, probationers are subject to searches of their persons and property simply on reasonable suspicion of a probation violation or criminal activity and are subject to random drug tests. They may also be required to avoid “injurious or vicious habits” and “persons or places of disreputable or harmful character”; permit state agents to visit their homes; remain in Kansas unless given permission to leave; work “faithfully at suitable employment”; perform community service; go on house arrest; and even serve time in a county jail.
The majority focuses next on what it characterizes as the “more common restraint on an offender’s freedom of movement” under KORA, which is the quarterly registration requirement in each applicable jurisdiction and the required $20 registration fee, as well as the KORA’s broader definition of the word “resides.” 304 Kan. at 323. The majority notes the registration costs, depending on circumstances, could be $80 to $240 annually.
But the majority fails to explain how the federal courts would hold that these components of KORA would weigh this factor against the Kansas law. For example, no evidence was presented establishing that the KORA registration costs were a fine instead of a fee. See Mueller v. Raemisch, 740 F.3d 1128, 1134 (7th Cir. 2014) (“The burden of proving that it is a fine is on the plaintiffs . . . .”). In Mueller, the Seventh Circuit recently upheld Wisconsin’s annual $100 registration fee against a sex offender who moved out-of-state but was still required to register in Wisconsin. In doing so, the court noted first that plaintiff had done nothing to get over the first hurdle by presenting evidence regarding the fee versus the registration program’s cost. 740 F.3d at 1134 (“[T]hey cannot get to first base without evidence that it is grossly disproportionate to the annual cost of keeping track of a sex offender registrant—and they have presented no evidence of that either. They haven’t even tried.”). Similarly, Doe has done nothing as to this evidentiary hurdle, yet the majority strikes this factor against KORA even though the burden is on the challenger and the statute is presumed constitutional.
Second, the Seventh Circuit noted the nonpunitive purpose of collecting fees and where the responsibility lies for having to provide a registry, stating:
“The state provides a service to the law-abiding public by maintaining a sex offender registry, but there would be no service and hence no expense were there no sex offenders. As they are responsible for the expense, there is nothing punitive about requiring them to defray it.” 740 F.3d at 1135.
If it is the potential for a total annual cost of $240 that offends the majority, what is the legal basis for that? The majority leaves this unexplained.
As noted earlier, my review of federal caselaw from Smith on down shows the courts have fully understood that actual consequences result from offender registration and have not dismissed these consequences simply as conjecture. See, e.g., Smith, 538 U.S. at 99; Parks, 698 F.3d at 6 (“The prospective disadvantages to Parks from such publicity are obvious.”). Indeed, several courts have approved state laws that imposed actual residential living restrictions on offenders, which are literally off-limits zones disabling offenders from living in close proximity to schools, playgrounds, etc. See Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) (Iowa’s 2,000-foot buffer zone regulatory, not punitive); Salter v. State, 971 So. 2d 31 (Ala. Civ. App. 2007) (approving 2,000-foot buffer zone); People v. Leroy, 357 Ill. App. 3d 530, 828 N.E.2d 769 (2005) (approving 500-foot buffer zone); State v. Seering, 701 N.W.2d 655 (Iowa 2005) (upholding 2,000-foot buffer zone); see also Doe v. Bredesen, 507 F.3d 998, 1004 (6th Cir. 2007) (“The [Tennessee] Act’s registration, reporting, and surveillance components are not of a type that we have traditionally considered as a punishment, and the district court correctly found that they do not constitute an affirmative disability or restraint in light of the legislature’s intent.”); Standley v. Town of Woodfin, 186 N.C. App. 134, 650 S.E.2d 618 (2007) (upholding ban on entering public park); Doe v. Baker, No. Civ. A. 1:05-CV-2265, 2006 WL 905368 (N.D. Ga. 2006) (unpublished opinion) (upholding 1,000-foot buffer zone). Clearly, such exclusions cause lost opportunities for housing and employment for offenders, yet these prohibitions were upheld as nonpunitive.
I am not persuaded the federal courts would find KORA to impose requirements traditionally considered to be affirmative disabilities or restraints to the point of weighing this factor against constitutionality.
The third Mendoza-Martinez factor is whether the “regulatory scheme . . . promotes the traditional aims of punishment.” Smith, 538 U.S. at 97. The Court has described those aims as retribution and deterrence. See, e.g., Mendoza-Martinez, 372 U.S. at 168.
The majority’s analysis of this factor is muddled and difficult to unpack. It is unclear to me whether the majority is relying on the articles attached to Doe’s summary judgment motion or its own intuition. As best as I can tell, the majority ultimately ignores the attachments and simply holds that KORA promotes traditional aims of punishment because the legislature increased the reporting term from 10 to 25 years. 304 Kan. at 325. But this conclusion is at odds with the federal caselaw.
But the fact that KORA has a deterrent effect is not conclusive. The Smith Court found that “[a]ny number of government programs might deter crime without imposing punishment” and “‘[t]o hold that the mere presence of a deterrent purpose renders such sanctions “criminal” . . . would severely undermine the Government’s ability to engage in effective regulation.’ [Citations omitted.]” 538 U.S. at 102. The Court also rejected the lower court’s finding that Alaska’s registration obligations were retributive based upon the length of reporting differing between individuals convicted of nonaggravated offenses and those “convicted of aggravated or multiple offenses.” 538 U.S. at 102. The Court found the “categories . . . and the corresponding length of the reporting requirement are reasonably related to the danger of recidivism, and this is consistent with the regulatory objective.” (Emphasis added.) 538 U.S. at 102.
The Smith Court’s analysis is equally applicable to KORA, though not wholly dispositive because the Court was addressing a 15-year registration requirement and KORA has a 25-year requirement. But SORNA imposes a 25-year registration requirement on Tier II offenders and a lifetime requirement on Tier III offenders,
The Eleventh Circuit addressed this registration requirement in W.B.H. and held that SORNA is no different than the Alaska act at
I would find under Smith and the cases interpreting SORNA that the traditional aims of punishment factor weighs in favor of KORA being fairly characterized as nonpunitive.
Rational Connection to Nonpunitive Purpose
In Smith, the Court identified this as “a ‘most significant’ factor in our determination that the statute’s effects are not punitive.” 538 U.S. at 102 (citing United States v. Ursery, 518 U.S. 267, 290, 116 S. Ct. 2135, 135 L. Ed. 2d 549 [1996]). The Smith Court did not elaborate on what is meant by “rational connection to a nonpunitive purpose” before analyzing the Alaska act under the standard. One commentator has noted that the standard is “deferential to the state purpose (much like rational basis review under substantive due process analysis).” Hobson, Banishing Acts: How Far May States Go to Keep Convicted Sex Offenders Away from Children?, 40 Ga. L. Rev. 961, 984 (2006). In State v. Cook, 286 Kan. 766, 774, 187 P.3d 1283 (2008), this court determined that “the registration act was intended to promote public safety and to protect the public from sex offenders, who constitute a class of criminals that is likely to reoffend.”
The majority concludes that arguably under the current version of KORA, “public safety has become a pretext.” 304 Kan. at 326. The majority finds fault with KORA because it does not distinguish between types of offenders and contains no mechanism for relieving a “fully rehabilitated” offender from its notification burdens. But the Ninth Circuit and others have rejected similar arguments. In Masto, the court held:
See also Bredesen, 507 F.3d at 1006 (Tennessee Legislature “could rationally conclude that sex offenders present an unusually high risk of recidivism, and that stringent registration, reporting, and electronic surveillance requirements can reduce that risk and thereby protect the public” and concluding that “[w]here there is such a rational connection to a nonpunitive purpose, it is not for the courts to second-guess the state legislature’s policy decision”). In addition, the Second Circuit recently held the New York Legislature’s “decision to eliminate the possibility of relief from registration for twenty years” for level one offenders did not render the registration provisions punitive. Cuomo, 755 F.3d at 112.
The majority fails to cite any authority for its analysis of this factor; and the proposition that offender registration schemes are rationally related to the nonpunitive purpose of public safety finds overwhelming approval in the federal caselaw. Even Myers, 260 Kan. at 681, appears to assume offender registration is rationally connected to public safety, and the Alaska state case that held post-Smith changes to the Alaska act were an ex post facto violation admits registration, at least as to sex offenders, advances a nonpunitive public safety purpose. See Doe v. State, 189 P.3d 999, 1015-16 (Alaska 2008).
I do not see how the majority can say no public safety purpose is rationally furthered by having sex, drug, and violent offenders register. I would follow the referenced precedent and hold that KORA has a rational connection to a nonpunitive purpose, so this factor does not weight towards punishment.
Excessive in Relation to Regulatory Purpose
In Smith, the Court clarified that “[t]he excessiveness inquiry of our ex post facto jurisprudence is not an exercise in determining
Instead of independently analyzing this factor, the majority merely harkens back to the ground it already plowed, concluding: “Our discussion of the other factors has touched upon the excessive nature of KORA.” 304 Kan. at 327. The majority then specifically cites the fact that the 2011 KORA amendments required more information from the offenders and that the penalty for noncompliance has increased. 304 Kan. at 327. I would hold that neither of these requirements is excessive given KORA’s public safety purpose based on the authority cited above.
Conclusion
Although the 2011 KORA offender registration scheme imposes a number of burdens on sex offenders, I believe the applicable federal caselaw considering similar burdens under other offender registration schemes compels us to conclude that the 2011 KORA amendments do not violate the United States Constitution’s Ex Post Facto Clause as applied to sex offenders and that the United States Supreme Court would so hold.
Nuss, C.J., and LUCKERT, J., join in the foregoing concurring and dissenting opinion.