STATE OF KANSAS, Appellant, v. PROMISE DELON REDMOND, Appellee.
No. 110,280
Supreme Court of Kansas
April 22, 2016
(371 P.3d 900)
Brett Watson, assistant district attorney, argued the cause, and Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were on the brief for appellant.
Jeffrey G. Dazey, of Northeast Kansas Conflict Office, argued the cause and was on the brief for appellee.
JOHNSON, J.: The State of Kansas appeals the district court‘s dismissal of criminal charges against Promise Delon Redmond for failing to register as a sex offender, as required by the Kansas Offender Registration Act (KORA),
Pursuant to
FACTUAL AND PROCEDURAL OVERVIEW
On December 13, 2001, Redmond pled no contest to one count of indecent solicitation of a child 14 to 15 years old, then a severity level 7, person felony. See
Under the 2001 version of KORA, Redmond was required to register for 10 years “from the date of conviction.”
Redmond filed three motions to dismiss, two of which raised procedural due process issues that are not involved in this appeal. The motion to dismiss at issue here raised the question of whether the charges against Redmond violated the constitutional prohibition against ex post facto laws. The State responded to the motions, Redmond filed a notice of additional authority, and then the parties requested leave to submit the motion on their briefs. Thereafter, the district court granted Redmond‘s motion to dismiss on ex post facto grounds and declared the other motions to be moot. The State timely appealed to the Court of Appeals, and this court transferred the appeal.
RETROACTIVE APPLICATION OF KORA 2011 AMENDMENTS
The 2011 version of KORA‘s statutory scheme stated that it applied to any person who was convicted of any sexually violent crime on or after April 14, 1994. See
But legislative acts must comport with our federal and state constitutions, and
The district court determined that the amended statutory scheme was “uniquely punitive” for Redmond and that the subsequently added burdens placed upon Redmond for a previously committed crime violated the Ex Post Facto Clause.
Standard of Review
The district court relied on constitutional grounds to find that the 2011 version of KORA could not be applied to Redmond. “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
In reaching its decision, the district court applied the analytical framework from this court‘s prior decision in Myers and the United States Supreme Court‘s prior decision in Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). That framework is referred to as an “intent-effects” test. See, e.g., Moore v. Avoyelles Correctional Center, 253 F.3d 870, 872 (5th Cir. 2001).
Under the intent-effects test, a court must first determine legislative intent. “If the intention of the legislature was to impose punishment, that ends the inquiry.” Smith, 538 U.S. at 92. The statute is penal and cannot be applied retroactively.
But if the legislature‘s intention was to enact “a regulatory scheme that is civil and nonpunitive,” the court must then “examine whether the statutory scheme is ‘so punitive either in purpose or effect as to negate [the State‘s] intention’ to deem it ‘civil.‘” Smith, 538 U.S. at 92 (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 138 L. Ed. 2d 501 [1997]). For the effects part of the test, the court utilizes the factors identified in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 544, 9 L. Ed. 2d 644 (1963) (Mendoza-Martinez factors), as “useful guideposts.” Smith, 538 U.S. at 97.
In determining legislative intent, the district court first noted
For the “effects” analysis, the district court was guided by the Mendoza-Martinez factors, which it recited from Myers, as follows:
““[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment—retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.” Myers, 260 Kan. at 681.
With respect to the first factor, the district court opined that the in-person reporting requirements and the registration fees assessed subjected KORA registrants to an affirmative disability or restraint. The court pointed out that a person who lives, works, and attends school in different counties would have to report in person 12 times a year, which resembled parole or probation. The court found the reporting requirements imposed upon an offender‘s time and served as a physical restraint. Further, the court noted that the registration fees were a substantial cost to the registrant, adding up to between $2,000 and $6,000 over the course of the unalterable 25-year registration period. Moreover, that cost would be particularly burdensome if the offender suffered employment difficulties because of the notification provisions of KORA. The district court also pointed to other states which had found similar
With respect to the historical nature of the punishment, the district court found persuasive the analogy to the colonial punishment of shaming made by the Indiana court in Gonzales v. State, 980 N.E.2d 312, 318-19 (Ind. 2013). The district court also noted that Myers had quoted from Nathaniel Hawthorne‘s The Scarlet Letter, indicating the historical aspect of treating public notification as punishment.
For the rest of the factors, the district court did not make a detailed recitation on the record, referring on occasion to the defendant‘s arguments. With respect to excessiveness, the district court appeared to find that the added requirements were particularly excessive and punitive when applied to Redmond.
What the district court did not clarify is that we are applying a federal constitutional provision, so that Kansas state courts are duty-bound to follow the decisions of the United States Supreme Court when interpreting the United States Constitution. See, e.g., Trinkle v. Hand, 184 Kan. 577, 579, 337 P.2d 665, cert. denied 361 U.S. 846 (1959) (Under
Smith considered an Ex Post Facto Clause challenge to the Alaska Sex Offender Registration Act (ASORA), utilizing the intent-effects test. The Court found the intent of the Alaska Legislature was to enact a civil and nonpunitive law. Then, applying five of the Mendoza-Martinez factors, Smith determined that the offenders had failed to show “that the effects of the law negate Alaska‘s intention to establish a civil regulatory scheme,” so that the act was nonpunitive and its retroactive application did not violate the Ex Post Facto Clause. 538 U.S. at 105-06. Accordingly, for us to find KORA punitive, we must find it factually distinct from ASORA.
In Thompson, which is filed this same date, we listed the significant differences between the 2011 KORA and the ASORA reviewed in Smith, some of which were mentioned by the district court. Those differences included the following: KORA applies
Then, we reviewed the factually distinct KORA, as amended in 2011, in light of the Mendoza-Martinez factors, in the manner employed by Smith, albeit with a different end result. We first determined that the statutory scheme resembled traditional forms of punishment by being akin to public shaming and by replicating the circumstance of being on probation or parole. Thompson, 304 Kan. at 322. The latter circumstance also imposed an affirmative disability or restraint on the offender, as did the difficulties in obtaining employment and housing caused by KORA. Moreover, the financial obligations were punitive in effect, when viewed from an offender‘s perspective. 304 Kan. at 324. Next, we determined that the current KORA had a deterrent effect and was retributive in character, before opining that KORA was not rationally connected to the nonpunitive purpose of public safety. In other words, the statutory scheme is excessive in relation to its regulatory purpose. 304 Kan. at 327-28. Consequently, we determined that the 2011 version of KORA is punitive in effect and that the amended statutory scheme cannot be applied retroactively to any sex offender who committed the qualifying crime prior to July 1, 2011. 304 Kan. at 328.
Applying Thompson‘s holding to the facts before us, we find that Redmond‘s 10-year registration period could not be retroactively increased to 25 years; that Redmond had completed his registra-
Affirmed.
MICHAEL J. MALONE, Senior Judge, assigned
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BILES, J., dissenting: I dissent from the majority‘s decision in this case for the reasons more fully stated in my dissent in Doe v. Thompson, 304 Kan. 291, 373 P.3d 750 (2016). As explained there, I believe the majority asks and answers the wrong question. Whether the Kansas Offender Registration Act (KORA) as amended in 2011 violates the Ex Post Facto Clause of the United States Constitution is entirely a federal question. We should apply the abundant federal caselaw where possible to inform the analysis. The majority‘s approach disregards that caselaw.
As explained in my Thompson dissent, the applicable federal caselaw considers similar burdens under other offender registration schemes. It compels me to conclude that the 2011 KORA amendments do not violate the federal Ex Post Facto Clause and the United States Supreme Court would so hold. Accordingly, I must dissent.
NUSS, C.J., and LUCKERT, J., join in the foregoing dissent.