State v. GensonState v. Genson
SYLLABUS BY THE COURT
The strict liability character of a KORA registration violation offense bears a rational relationship to the legitimate government interest of protecting the public from sexual and other violent offenders and is thus not unconstitutionally arbitrary.
Review of the judgment of the Court of Appeals in 59 Kan. App. 2d 190, 481 P.3d 137 (2020). Appeal from Riley District Court; GRANT D. BANNISTER, judge. Opinion filed July 29, 2022. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
Caroline M. Zuschek, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
David Lowden, deputy county attorney, argued the cause, and Barry R. Wilkerson, county attorney, Bethany C. Fields, deputy county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
FACTS AND PROCEDURAL BACKGROUND
After his conviction for attempted voluntary manslaughter, Genson needed to register as a violent offender under KORA. On August 29, 2017, he did so at the Riley County Police Department. There, he met investigations secretary Shannon Ascher, who described his demeanor as “normal.” The forms Genson completed informed him he had to register every May, August, November, and February, and again upon certain occasions, such as when his address changed. Ascher told Genson about these requirements. On September 18, Genson came in to report a change of phone number. He came in again on October 9 to report an address change.
But Genson failed to show up for his registration appointment in November. This does not, itself, establish a failure to register; Genson had until the end of the month to fulfill his registration obligations. To help “make sure he [didn‘t] miss that month,” Ascher tried to call Genson at his own number and his mother‘s number. Ascher ultimately failed to reach him, and Genson did not register in November. But he registered on December 15 and appeared “normal” at that time.
The State charged Genson with a violation of KORA under
The case went to jury trial. During trial, the State asked the district court to bar any mention of Genson‘s mental health because it was not relevant to the crime charged. Genson‘s attorney noted that Genson had been involuntarily committed at Osawatomie State Hospital for roughly the first half of December 2017, and challenged the constitutionality of strict liability registration violation offenses.
The district court did not rule on the statute‘s constitutionality but repeated the substance of its previous written ruling “that generally questions, inquiries, evidence, or for that matter argument related to defense of mental defect are not going to be allowed.” As the district court put it, a ruling on the statute‘s constitutionality “will be the Appellate Court‘s function.” In its eventual Journal Entry of Jury Trial, the district court characterized this as a ruling on the State‘s motion “in limine.”
At the end of the State‘s case, Genson‘s counsel made these proffers of “what testimony would have been if this Court had allowed us to go into mental health issues“:
- Ascher “is familiar with
K.S.A. 22-4904 regarding the duties of parties such as state hospitals, i.e., Osawatomie State Hospital.” - “This court and the State of Kansas had involuntarily committed Mr. Genson tо Osawatomie” after Genson “actually took himself to a hospital.”
- Genson “would have testified that he had not been on his medications in the month of November, that he became cognizant enough to reach out to his mother to ask for transportation to go to the hospital because he knew he needed help. He was unable to reach his mother and Mr. Genson was able to get himself to the hospital. He would testify he believed that would be the end of November, beginning of December.”
- Genson “would have been in the hospital on December 2nd.”
- “He spent his time at Osawatomie up through December 14th. When he was out of Osawatomie and medicated on his proper treatment plan, he registered the following day.”
Once Genson had been committed in the beginning of December of 2017, his counsel argued, it was the hospital‘s responsibility to register him, meaning he was only “technically incompliant” for “a day to day and a half.” Except for the above-referenced proffer, Genson introduced only one exhibit: his registration form frоm December 15, 2017. He put forth no other evidence.
Genson was found guilty. Before sentencing, Genson moved to dismiss the case because
“7. Furthermore, the Court ruled that Mr. Genson was barred from presenting any theory of defense in this case, specifically ruling that evidence concerning Mr. Genson‘s mental state during the month of November 2017 was inadmissible and irrelevant.
“8. Mr. Genson proffered evidence that would have established that Mr. Genson‘s mental condition during the month of November 2017 was unstable at best, and that Mr. Genson turned himself into the authorities on December 2, 2017. Law enforcement officers were so concerned with Mr. Genson‘s mental condition that he was nearly immediately transported to Osawatomie State Mental Hospital while the Riley County Attorney‘s Office filed a care and treatment case.
“9. The Court‘s ruling also effectively deprived Mr. Genson of his unquestioned Constitutional right to testify in his own defense in any meaningful way. Without being able to testify about what was taking place in his life during November 2017, the reason he turned himself into the authorities on December 2, 2017, his subsequent
admission to Osawatomie State Hospital, or even his initial registration address in December 2017, Mr. Genson‘s potential trial testimony was essentially limited to stating his name for the record and immediately stepping down to return to the defense table. “10. The foregoing is a significant and incurable error and was prejudicial to the defendant, effectively robbing him of any ability to defend himself.
“11. In addition, the exclusion of Mr. Genson‘s mental health evidence deprived the jury of their inherent power to convict only in appropriate circumstances, regardless of the evidence presented by the State.”
Again, Genson raised no argument that his mental illness physically incapaсitated him in November of 2017. Nor did he claim his failure to register was involuntary for purposes of
At sentencing, Genson‘s counsel argued the imposition of strict liability unconstitutionally “violates KORA offenders’ due process rights under the Fifth and Fourteenth Amendments, essentially their substantive due process rights.” The district court denied this motion. Even so, over the State‘s objection, the district court granted Genson both a durational and dispositional departure based on his mental health struggles and the de minimis nature of his late registration violation.
Genson appealed to the Court of Appeals, raising four issues related to his inability to present a defense based on his mental health in November 2017. Genson did not raise any new argument on appeal as to the physical voluntariness of his conduct under
In response, Judge Atcheson authored a lengthy dissent criticizing the majority‘s substantive due process analysis. Judge Atcheson reasoned that statutes criminalizing conduct on a strict liability basis impact a fundamental liberty interest when they provide for “harsh penalties” and argued that such statutes should be subject to strict scrutiny. 59 Kan. App. 2d at 218, 229 (Atcheson, J., dissenting). Within that framework, Judge Atcheson concluded that the statutes at issue here were not narrowly tailored to advance any legitimate government objective and were thus unconstitutional and unenforceable. 59 Kan. App. 2d at 230-32 (Atcheson, J., dissenting).
Genson‘s petition for review to this court raised only three issues. This court granted review as to Genson‘s substantive due process claim only, which included a brief challenge to the panel‘s refusal to address his newly raisеd claims under section 1 and section 5 of the Kansas Constitution Bill of Rights. The court did not grant review of Genson‘s challenge to the constitutionality of
ANALYSIS
Genson challenges the panel‘s conclusion that
The panel did not abuse its discretion in refusing to consider Genson‘s newly raised claims on appeal.
Before the district court, Genson did not clearly delineate his substantive due process
Appellate courts are obligated to address claims properly raised in district court and later appealed. But if a claim is not effectively raised below, the general rule gives appellate courts the discretion to refuse consideration of that issue. E.g., State v. Hillard, 313 Kan. 830, 839-40, 491 P.3d 1223 (2021).
Here, Genson concedes some of his claims were newly raised on appeal. This concession is critical to our assessment of the panel‘s decision not to consider them: if the issues were not being raised for the first time on appeal, the panel would not have had discretion to refuse to consider them. But since these arguments were newly raised before the panel, the panel could exercise its discretion to consider whether to apply a prudential exception to the general rule that issues not raised before the district court cannot be raised for the first time on appeal.
“‘A court abuses its discretion when its action is (1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the court; (2) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) 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. The party arguing an abuse of discretion bears the burden of establishing that abuse.‘” State v. Aguirre, 313 Kan. 189, 195, 485 P.3d 576 (2021) (quoting State v. Corbin, 311 Kan. 385, 390, 461 P.3d 38 [2020]).
Genson‘s newly raised claims are that
K.S.A. 2020 Supp. 21-5203(e) does not violate substantive due process.
We turn to Genson‘s claim that
Standard of Review
A statute‘s constitutionality is reviewed de novo on appeal. State v. Cook, 286 Kan. 766, 768, 187 P.3d 1283 (2008). Generally, appellate courts “presume that legislative enactments are constitutional and resolve all doubts in favor of a statute‘s validity.” 286 Kan. at 768.
Preservation
Before we address Genson‘s claim, we first examine what is not before us. Genson has not framed his claim as a voluntariness challenge under
Even here, though, Genson‘s proffer gives us pause. His proffer does not establish the severity, nature, or genesis of his mental illness, although we can loosely infer that Genson believes the evidence would show he
Discussion
Genson argues
The Legislature has broad authority to craft criminal laws. State v. Thomas, 313 Kan. 660, 664, 488 P.3d 517 (2021). We recently upheld the Legislature‘s exercise of this authority in the context of a due process-based challenge to
“‘We begin with the well-established recognition that the Legislature has the authority to create strict liability crimes:
‘That it is within the power of the legislature to forbid the doing of an act and make its commission criminal, without regаrd to the intent or knowledge of the doer, is well established in our jurisprudence. [Citations omitted.]
. . . .
‘It is within the power of the legislature to declare an act criminal irrespective of the intent or knowledge of the doer of the act. In accordance with this power, the legislature in many instances has prohibited, under penalty, the performance of specific acts. The doing of the inhibited act constitutes the crime, and the moral turpitude or purity of the motive by which it was prompted and the knowledge or ignorance of its criminal character are immaterial circumstances on the question of guilt. The only fact to be determined in these cases is whether the defendant did the act.’ [Citations omitted.]” Thomas, 313 Kan. at 664 (quoting Genson, 59 Kan. App. 2d at 202).
Broad though the Legislature‘s authority may be, however, it is not unlimited:
“‘While the legislature is vested with a wide discretion to determine for itself what is inimical to the public welfare which is fairly designed to protect the public against the evils which might otherwise occur, it cannot, under the guisе of the police power, enact unequal, unreasonable or oppressive legislation or that which violates the Constitution. If the classification provided is arbitrary, . . . and has no reasonable relation to objects sought to be attained, the legislature transcended the limits of its power in interfering with the rights of persons affected by the Act.‘” Henry v. Bauder, 213 Kan. 751, 753, 518 P.2d 362 (1974) (quoting Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 760, 408 P.2d 877 [1965]).
Indeed, when a statute deprives an individual of liberty, the Due Process Clause of the Fourteenth Amendment to the United States Constitution “imposes procedural and substantive due process requirements.” State v. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008). Substantive due process “protects individuals from arbitrary state action,” while procedural due process “protects the opportunity to be heard in a meaningful time and manner.” Creecy v. Kansas Dept. of Revenue, 310 Kan. 454, 462, 447 P.3d 959 (2019). “Although freedom from physical restraint
The United States Supreme Court has been “‘reluctant to expand the concept of substantive due process‘” beyond “those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation‘s history and tradition,’ . . . and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed[.]‘” Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997). So litigants raising substantive due process claims must set forth “a ‘careful description’ of the asserted fundamental liberty interest“—largely because “the Fourteenth Amendment ‘forbids the government to infringe . . . “fundamental” liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.‘” 521 U.S. at 721. Thus, Genson‘s claim can only succeed if he shows
Genson‘s claim that
This case poses no question of statutory interpretation. The statute‘s plain language is clear that the crime of failure to register does not contain an accompanying mens rea element. We need not resort to legislative history or canons of construction to clarify the Legislature‘s intent, as the above-noted cases needed to.
Even so, the Supreme Court‘s caselaw further reflects a particular concern with the criminalization of otherwise innocent conduct on a strict liability basis. E.g., X-Citement Video, Inc., 513 U.S. at 72 (”Morissette, reinforced by Staples, instructs that the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.“). No such concern is present here. An individual cannot commit the crime of failing to register under KORA without a duty to register—and without being given notice of that duty, as required by
Kansas cases discussing the “public welfare” doctrine have also generally turned on questions of statutory interpretation. E.g., State v. Lewis, 263 Kan. 843, 857-58, 953 P.2d 1016 (1998) (driving while a “habitual violator” statute construed to include a mens rea element); State v. Mountjoy, 257 Kan. 163, 177, 891 P.2d 376 (1995) (statute criminalizing unauthorized practice of the healing arts
Yet the Legislature‘s authority to craft laws remains subject to constitutional constraints. Cf. State ex rel. Smith v. Fairmont Foods Co., 196 Kan. 73, 81, 410 P.2d 308 (1966) (“The case of United States v. Balint [258 U.S. 250, 252, 42 S. Ct. 301, 66 L. Ed. 604 (1922)], acknowledged the public welfare doctrine and found that, under proper circumstances, the absence of the scienter requirement in a criminal statute does not constitute a violation of due process.” [Emphasis added.]).
Other courts have grappled with whether a crime, even serious crime, must have an element of scienter to be constitutional. Most address the criminality of action rather than the failure to act, but the seriousness of the crime alone does not make the imposition of strict liability unconstitutional. “It is well established that a criminal statute is not necessarily rendered unconstitutional because its definition of a felony lacks the element of scienter.” United States v. Engler, 806 F.2d 425, 433 (3d Cir. 1986) (citing, for example, Lambert v. California, 355 U.S. 225, 228, 78 S. Ct. 240, 242, 2 L. Ed. 2d 228 [1957]). Moreover, “[t]he Supreme Court has indicated that the due process clause may set some limits on the imposition of strict criminal liability, but it has not set forth definite guidelines as to what those limits might be.” Engler, 806 F.2d at 433.
With this context in mind, much of Genson‘s argument relies on an extrapolation of Morissette‘s discussion of “public welfare” offenses. We are not convinced that Morissette sets forth a general substantive due process right to a scienter requirement, however. Only once has the Supreme Court found a due process violation in a strict liability ordinance. Lambert, 355 U.S. at 229-30. Coincidentally, Lambert involved an ordinance criminalizing the failure to comply with a registration requirement, as we have here. Still, the Lambert majority found that ordinance unconstitutional as applied because the defendant had no notice of the statutorily created duty which criminalized his nonperformance—not facially unconstitutional because the ordinance lacked a scienter element. See Lambert, 355 U.S. at 227. Assessing Lambert‘s argument that the ordinance violated her due process rights, the majority wrote:
“We must assume that appellant had no actual knowledge of the requirement that she register under this ordinancе, as she offered proof of this defense which was refused. The question is whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.
“We do not go with Blackstone in saying that ‘a vicious will’ is necessary to constitute a crime, for conduct alone without regard to the intent or knowledge of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition. But we deal here with conduct that is wholly passive—mere failure to register. It is unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed. The rule that ‘ignorance of the law will not excuse’ is deep in our law, as is the principle that of all the powers of local government, the police power is ‘one of the least limitable.’ On the other hand, due process places some limits on its exercise. Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act. . . . These cases involved only property interests in civil litigation. But the principle is equally appropriate where a person, wholly passive and unaware of any wrongdoing, is brought to the bar of justice for condemnation in a criminal case.
“Registration laws are common and their range is wide. Many such laws are akin to licensing statutes in that they pertain to the regulation of business activities.
But the present ordinаnce is entirely different. Violation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking. . . . We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. . . . Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community. [Citations omitted.]” (Emphases added.) Lambert, 355 U.S. at 227-30.
Lambert does not answer the question before us. First, notice—the core concern in Lambert—is traditionally associated with procedural due process, rather than substantive due process. See, e.g., State v. Juarez, 312 Kan. 22, 24, 470 P.3d 1271 (2020); State v. Robinson, 281 Kan. 538, 548, 132 P.3d 934 (2006) (“The basic elements of procedural due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner.“). That distinction is somewhat muddied since Lambert involved notice of wrongdoing, rather than notice of a hearing. Still, here the evidence shows Genson did know about his KORA registration obligations—at least during September and October 2017, and on December 15 as well. Genson, 59 Kan. App. 2d at 205. And even if Genson‘s stifled theory of defense might have hinged on the notion his mental illness obviated knowledge of his obligations during some part of November 2017—which he did not clearly argue—we cannot read his proffer to support such a claim. Consequently, Genson cannot rely on Lambert to establish a fundamental liberty interest here.
In the end, Genson is left with no persuasive legal authority to indicate the strict liability criminalization of his failure to register violates a fundamental liberty interest simply because such failure is classified as a felony.
We turn then to the question of arbitrariness. Like the Court of Appeals majority, we believe the rational basis test is the аppropriate metric by which to evaluate this:
“When a statute does not implicate fundamental rights, we ask whether it is ‘rationally related to legitimate government interests.’ ‘The rational basis standard is a very lenient standard. All the court must do to uphold a legislative classification under the rational basis standard is perceive any state of facts which rationally justifies the classification.’ In such cases, the government has no obligation to produce evidence or empirical data to sustain the rationality of a statutory classification. ‘[A]ny reasonably conceivable state of facts’ will suffice to satisfy rational basis scrutiny. The burden falls on the party attacking the statute as unconstitutional to ‘negative every conceivable basis which might support it.’
. . . .
“Genson fails to show that
K.S.A. 2019 Supp. 21-5203(e) bears no reasonable relationship to the permissible legislative objective noted above. Rather, KORA meets the rational basis test because it is in the interest of government to protect the public from sexual and other violent offenders. [Citations omitted.]” Genson, 59 Kan. App. 2d at 212-13.
The majority‘s reasoning on this point is sound, and we affirm it in full. We thus conclude Genson has failed to show that
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
* * *
WILSON, J., concurring: I concur in the result reached by the majority on the narrow question before us. But I write separately to highlight the narrowness of this path.
This court also affirmed the Court of Appeals majority‘s decision not to address two claims based on the Kansas Constitution for the first time on appeal. Because I agree that the majority did not abuse its discretion in refusing to consider these newly raised issues, I also concur in our court‘s decision not to reach them.
Nevertheless, I am troubled by the panel majority‘s conclusion that Genson was not prevented from presenting any defense because “a defendant who cannot rely on a lack of a mens rea may still have a defense that the voluntary act or omission requirement of the actus reus was not met” under
“A voluntary act is an intentional bodily movement, i.e., the intention to lift an arm or move a leg in a certain direction—whatever bodily movement is needed to complete the act requirement. In contrast, intentional mental culpability is the conscious desire to engage in conduct of a certain nature or produce a certain result—i.e., to desire injurious movement or a slap or a kick.” Dinkel, 311 Kan. at 560.
But this interpretation, when combined with
As the majority has recognized,
Although Genson briefly hinted at a physical incapacity argument to the district court—without either clearly articulating a voluntariness basis for the claim or proffering evidence to support such a claim—he has long since abandoned it, if indeed it was ever present to begin with. E.g., Titterington v. Brooke Ins., 277 Kan. 888, Syl. ¶ 3, 89 P.3d 643 (2004) (“A point raised only incidentally in a party‘s brief but not argued in the brief is deemed abandoned.“). And because this court declined to grant review of Genson‘s challenge to the constitutionality of
In sum: Genson did not argue that he was physically incapable of registering in November of 2017; his proffer did not support such a claim; and even if he had proffered and argued it at the district court, he has now abandoned it. Consequently, despite my reservations, I find no error in the district court‘s ruling and concur in the majority‘s result.
STEGALL and WALL, JJ., join the foregoing concurring opinion.
* * *
ROSEN, J., dissenting: Genson has asked this court to decide whether the Legislature has unconstitutionally trampled a deeply rooted fundamental right. Instead of considering this issue in full, the majority punts the question and justifies the targeted legislation as a valid exercise of police power. I cannot agree. Had our full court accepted its responsibility to uphold the Constitution, I suspect the analysis would show the Legislature violated the substantive due process protections of the Due Process Clause when it made the failure to register a strict liability crime for violent offenders. This is in line with Judge Atcheson‘s dissent—one that I find compelling. But even if I overlook the majority‘s failure to apprоpriately grapple with the substantive due process principles at play, I believe Genson is entitled to relief on other grounds. The majority concludes that the Legislature acted within its permissible realm because the targeted legislation survives rational basis review. But the majority offered no rational basis analysis. Through proper consideration, it is clear the Legislature acted outside of its police power.
Finally, I disagree with this court‘s decision to deny review on Genson‘s argument that the Legislature has unconstitutionally abolished the insanity defense. I find the claim troubling and the arguments in support persuasive. For these reasons, I dissent.
Substantive Due Process
The majority accurately captures the framework guiding the Legislature‘s use of police power and the constraints that substantive due process places on that power. The Legislature may enact laws, and such legislation is generally subject to rational basis review. But if the legislation infringes on certain fundamental rights, it must withstand strict scrutiny. This is because the substantive guarantee of the Due Process Clause “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Washington v. Glucksberg, 521 U.S. 702, 720, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997). Consequently, when “challenged state action implicate[s] a fundamental right,” the Constitution requires “more than a reasonable relation to a legitimate state interest to justify the action.” Glucksberg, 521 U.S. at 721-22. The legislation is forbidden “‘unless the infringement is narrowly tailored to serve a compelling state interest.‘” Glucksberg, 521 U.S. at 721 (quoting Collins, at 302).
To decide whether targeted legislation has crossed the line triggering a higher level of
The majority declines to consider whether there is a fundamental interest at stake. Instead, it turns to rational basis because neither the Supreme Court nor any other court has previously declared the interest at stake here to be fundamental. In doing so, the majority abdicates its responsibility to ensure state action has not impermissibly encroached upon a fundamental right. “Upon the state courts, equally with the courts of the Union, rests the obligation to guard, enforce, and protect every right granted or secured by the constitution of the United States and the laws made in pursuance thereof, whenever thоse rights are involved in any suit or proceeding before them.” Robb v. Connolly, 111 U.S. 624, 637, 4 S. Ct. 544, 28 L. Ed. 542 (1884); see also Arizona v. Evans, 514 U.S. 1, 8, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995) (“State courts, in appropriate cases, are not merely free to—they are bound to—interpret the United States Constitution.“); Trainor v. Hernandez, 431 U.S. 434, 443, 97 S. Ct. 1911, 52 L. Ed. 2d 486 (1977) (“‘state courts have the solemn responsibility equally with the federal courts’ to safeguard constitutional rights“).
In brushing aside its responsibility, the majority avoids explicitly acknowledging that the Supreme Court has never considered whether the interest Genson advances today—being free from conviction of a serious, high-level felony punishable by lengthy imprisonment based on inaction and without any knowledge of the facts that make one‘s conduct criminal—is a deeply rooted fundamental interest that deserves substantive due process protection. Without any command from the Supreme Court that it is not, and, in light of our decision to grant review of the constitutional question, we should uphold our duty to interpret and apply Supreme Court precedent and answеr the question before us.
Had the majority addressed this question, I believe a correct analysis would likely show that the targeted legislation implicates a deeply rooted fundamental right. The Legislature has made a “violent offender‘s” failure to register a felonious crime punishable by up to 20 years in prison. See
“The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability
and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child‘s familiar exculpatory ‘But I didn‘t mean to,’ and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone‘s sweeping statement that to constitute any crime there must first be a ‘vicious will.‘”
It is true the law has loosened its grip on mental culpability requirements in some cases—those regarding “‘public welfare’ or ‘regulatory offenses.‘” Staples v. United States, 511 U.S. 600, 606, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994). These typically “involve stаtutes that regulate potentially harmful or injurious items.” Staples, 511 U.S. at 607. The Court has reasoned that sanctions for noncompliance with these statutes serve as an effective means of regulating potentially dangerous industries and are usually “light . . . , such as fines or short jail sentences.” Staples, 511 U.S. at 616. The Court has pointed out that public welfare offenses “belong to a category of another character, with very different antecedents and origins” than the criminal offenses to which the common law has always attached a mens rea requirement. Morissette, 342 U.S. at 252.
The offense at issue in this case is not a public welfare crime. It is not a product of the Legislature‘s responsibility to regulate dangerous “industries, trades, properties or activities.” Morissette, 342 U.S. at 254. Like the failure to register offense in Lambert, it severely criminalizes conduct that “is wholly passive—mere failure to register.” Lambert v. People of the State of California, 355 U.S. 225, 228, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957). Moreover, it triggers serious penalties, unlike those in the public welfare realm. The offense is therefore more akin to those of which our lеgal history has relentlessly demanded a culpable mental state. This suggests to me that
If
To me, this conclusively shows that the targeted legislation would crumble under strict scrutiny. In fact, it convinces me that the majority of this court erred when it concluded the legislation survives even rational basis review.
The rational basis barometer measures whether legislative action is “rationally related to legitimate government interests.” Washington v. Glucksberg, 521 U.S. 702, 728, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997). The majority of this court adopts the Court of Appeals majority‘s analysis on this point, which reasoned that a court must uphold
I agree that the government has an interest in protecting the public from predatory sexual and violent offenses and, accordingly, from would-be offenders. But I fail to see how this equates to an interest in protecting the public from only those people who previously committed violent offenses. For a court to accept this position would be to turn mere conjecture—once a violent offеnder, always a violent offender—into a legal conclusion void of any supporting evidence. I am shocked and stunned by such reckless speculation, especially because our historical system of criminal justice explicitly counsels against it. “[A] presumption of innocence . . . is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States, 156 U.S. 432, 453, 15 S. Ct. 394, 39 L. Ed. 481 (1895).
And the Legislature‘s original justification for KORA—that sex offenders reoffend at a comparatively high rate—fails to bridge the gap between previous violent offender and future violent offender. Not only does heavy suspicion hang over this representation, see Huffman, Moral Panic and the Politics of Fear: The Dubious Logic Underlying Sex Offender Registration Statutes and Proposals for Restoring Measures of Judicial Discretion to Sex Offender Management, 4 Va. J. Crim. L. 241, 260 (2016) (citing studies to show “[r]esearch confirms that sex offenders pose no greater danger to thе public than other criminal offenders“), the claim says nothing about recidivism among violent offenders. See also State v. N.R., 314 Kan. 98, 125, 495 P.3d 16 (2021) (Rosen, J., dissenting) (discussing study showing recidivism of sex offenders is “remarkably low“). Without even an unsupported suggestion from the Legislature that violent offenders recidivate at a high rate, I will not presume they do. Nor will I use such a presumption to justify state-sanctioned ostracization and exclusion of those impacted from any sense of a normal existence. See N.R., 314 Kan. at 124 (Rosen, J., dissenting) (discussing severe and onerous effects of registration and its “effective banishment“).
Now I turn more to the point. Because I do not believe the Legislature has a reasonable interest in “protecting” people from individuals who previously committed violent offenses when the Legislature has made no suggestion or connection that these individuals are likely to reoffend, I see no legitimate interest in making a previous violent offender‘s failure to register a strict liability crime. The purpose seems clear—to eliminate most defenses to the crime, thereby reducing the prosecution‘s burden to secure a conviction for failing to register. But if the registration requirement itself serves no legitimate purpose, a simpler route to conviction is similarly void of any rational basis. Consequently, I would strike down
Finally, I briefly acknowledge the compelling argument that the Legislature has violated substantive due process by eliminating the insanity defense.
In Kahler, the United States Supreme Court concluded
In sum, I find it highly likely that
STANDRIDGE, J., joins the foregoing dissenting opinion.