Petition for Writ of Certiorari — Steve Meredith, Petitioner v. Kansas

No.

IN THE SUPREME COURT OF THE UNITED STATES

STEVE MEREDITH, BARBARA HILL, JOSEPH DONALDSON, KEVIN

HIRSCHBERG, BRYAN BROWN, DJUAN RICHARDSON, WILLIE

SCUDERI, and THOMAS BURDICK, Petitioners

v.

STATE OF KANSAS, Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO THE

KANSAS SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

Randall L. Hodgkinson*

Kansas Appellate Defender Office

700 Jackson, Suite 900

Topeka, KS 66603

(785) 296-5484

E-mail: rhodgkinson@sbids.org

Meryl Carver-Allmond

Capital Appellate Defender Office

*Counsel of Record

QUESTION PRESENTED

Whether retroactive application of enhancements to the Kansas Offender

Registration Act (“KORA”) violates the Ex Post Facto Clause.

LIST OF PARTIES

The parties to this case are as stated in the caption, Steve Meredith,

Barbara Hill, Joseph Donaldson, Kevin Hirschberg, Bryan Brown, Djuan

Richardson, Willie Scuderi, and Thomas Burdick, petitioners, and the State of

Kansas, respondent. In the courts below, each petitioner was referred to as

appellant-defendant and the respondent was referred to as appellee-plaintiff.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ii

LIST OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

vii

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED . . . . . . 3

STATEMENT OF THE CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CONCLUSION

APPENDIX

Appendix A –

Kansas Supreme Court decision in State v. Meredith, decided

August 4, 2017

Appendix B –

Kansas Court of Appeals decision in State v. Meredith, decided

July 11, 2014

Appendix C –

Kansas Supreme Court order in State v Meredith denying

motion for rehearing, decided October 2, 2017

Appendix D --

Kansas Supreme Court decision in State v. Hill, decided

August 11, 2017

Appendix E --

Kansas Court of Appeals decision in State v. Hill, decided May

8, 2015

iv

Appendix F --

Kansas Supreme Court order in State v. Hill denying motion

for rehearing, decided October 2, 2017

Appendix G --

Kansas Supreme Court decision in State v. Donaldson, decided

August 11, 2017

Appendix H --

Kansas Court of Appeals decision in State v Donaldson,

decided August 15, 2014

Appendix I --

Kansas Supreme Court order in State v. Donaldson denying

motion for rehearing, decided October 2, 2017

Appendix J --

Kansas Supreme Court decision in State v. Hirschberg, decided

August 11, 2017

Appendix K --

Kansas Court of Appeals decision in State v. Hirschberg,

decided May 9, 2014

Appendix L --

Kansas Supreme Court order in State v. Hirschberg denying

motion for rehearing, decided October 2, 2017

Appendix M --

Kansas Supreme Court decision in State v. Burdick, decided

August 11, 2017

Appendix N --

Kansas Court of Appeals decision in State v. Burdick, decided

May 8, 2015

Appendix O --

Kansas Supreme Court order in State v Burdick denying

motion for hearing, decided October 2, 2017

Appendix P --

Kansas Supreme Court decision in State v. Brown, decided

August 18, 2017

Appendix Q --

Kansas Court of Appeals decision in State v. Brown, decided

May 24, 2013

v

Appendix R --

Kansas Supreme Court order in State v. Brown denying motion

for rehearing, decided October 2, 2017

Appendix S --

Kansas Supreme Court decision in State v. Richardson, decided

November 9, 2017

Appendix T --

Kansas Court of Appeals decision in State v. Richardson,

decided July 26, 2013

Appendix U --

Kansas Supreme Court order in State v. Richardson denying

motion for rehearing, decided December 20, 2017

Appendix V --

Kansas Supreme Court decision in State v. Scuderi, decided

October 27, 2017

Appendix W --

Kansas Court of Appeals decision in State v. Scuderi, decided

July 19, 2013

Appendix X --

Kansas Supreme Court order in State v Scuderi denying

motion for rehearing, decided December 20, 2017

Appendix Y --

Kansas Supreme Court decision in State v. Simmons, decided

December 1, 2017

Appendix Z --

Kansas Court of Appeals decision in State v. Simmons, decided

June 27, 2014

Appendix AA --

K.S.A. 2011 Supp. 22-4901 et seq. (Kansas Offender

Registration Act)

vi

TABLE OF AUTHORITIES

Cases

Page

Apprendi v. New Jersey, 530 U.S. 466 (2000) ................................................................... 6

Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009) .................................................. 12

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) ..................................................... 12

Doe v. Cuomo, 755 F.3d 105 (2d Cir. 2014) .................................................................... 11

Doe v. State, 189 P.3d 999 (Alaska 2008) ....................................................................... 12

Doe v. State, 111 A.3d 1077 (N.H. 2015)........................................................................ 12

Doe v. Thompson, 373 P.3d 750 (Kan. 2016) .................................................. 7, 10, 14, 16

Does v. Snyder, 834 F.3d 696 (6th Cir. 2016) .................................................................. 11

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) ..................................................... 12

Litmon v. Harris, 768 F.3d 1237 (9th Cir. 2014) ............................................................ 11

Shaw v. Patton, 823 F.3d 556 (10th Cir. 2016) ............................................................... 11

Smith v. Doe, 538 U.S. 84 (2003) ................................................................................. 7, 12

Starkey v. Oklahoma Dep’t of Corr., 305 P.3d 1004 (Okla. 2013) .................................. 12

State v. Brown, 399 P.3d 872 (Kan. 2017)(unpublished) .............................................. 1

State v. Burdick, 399 P.3d 192 (Kan. 2017) ..................................................................... 1

State v. Donaldson, 399 P.3d 870 (Kan. 2017) ................................................................. 1

State v. Hirschberg, 399 P.3d 216 (Kan. 2017) ................................................................ 1

vii

State v. Letalien, 985 A.2d 4 (Me. 2009) ........................................................................ 12

State v. Meredith, 399 P.3d 859 (Kan. 2017) ............................................................ 1, 6-7

State v. Petersen-Beard, 377 P.3d 1127 (2016) ........................................................ 6-7, 10

State v. Richardson, 404 P.3d 671 (Kan. 2017) ................................................................ 1

State v. Scuderi, 403 P.3d 1206 (Kan. 2017) .................................................................... 1

State v. Simmons, 405 P.3d 1190 (Kan. 2017) ................................................................. 1

Constitution and Statutes

U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Alaska Stat. § 12.63.010 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 8-9

Alaska Stat. § 12.63.020 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Alaska Stat. § 18.65.087 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Alaska Stat. § 25.20.090 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Alaska Stat. § 25.24.150 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Alaska Stat. § 11.56.840 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Alaska Stat. § 11.56.835 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

viii

Alaska Stat. § 11.81.250 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

K.S.A. 2011 Supp. 8-243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

K.S.A. 2011 Supp. 22-4902 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 15

K.S.A. 2011 Supp. 22-4903 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12

K.S.A. 2011 Supp. 22-4905 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9, 13-14

K.S.A. 2011 Supp. 22-4906 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

K.S.A. 2011 Supp. 22-4907 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

K.S.A. 2011 Supp. 22-4909 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

K.S.A. 2011 Supp. 23-3203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ix

OPINIONS BELOW

In State v. Petersen-Beard, 377 P.3d 1127 (Kan. 2016), the Kansas Supreme

Court overruled another decision it had issued on the same day and held that

KORA did not constitute punishment under the federal Constitution as it applied

to sex offenders. Later, the Kansas Supreme Court also held that KORA did not

constitute punishment as it applied to non-sex offenders. State v. Meredith, 399

P.3d 859 (August 4, 2017). Citing Meredith, the Kansas Supreme Court

subsequently rejected identical claims for the remaining petitioners. State v. Hill,

399 Kan. 218 (Kan. August 18, 2017), State v. Donaldson, 399 P.3d 870 (Kan.

August 11, 2017), State v. Hirschberg, 399 P.3d 216 (Kan. August 11, 2017), State v.

Brown, 399 P.3d 872 (Kan. August 11, 2017)(unpublished), State v. Richardson, 404

P.3d 671 (Kan. November 9, 2017), State v. Scuderi, 403 P.3d 1206 (Kan. October

27, 2017), State v. Simmons, 405 P.3d 1190 (Kan. December 1, 2017), State v.

Burdick, 399 P.3d 192 (August 11, 2017).

1

STATEMENT OF JURISDICTION

The Kansas Supreme Court is the court of last resort in Kansas. The

Kansas Supreme Court rejected Mr. Meredith’s claim that retroactive application

of KORA amendments violated the Ex Post Facto Clause in its opinion issued on

August 4, 2017. The Kansas Supreme Court rejected Ms. Hill’s, Mr. Donaldson’s,

Mr. Hirschberg’s, Mr. Burdick’s and Mr. Brown’s identical claims in decisions on

August 11, 2017, rejected Mr. Richardson’s identical claim in a decision on

November 9, 2017, rejected Mr. Scuderi’s identical claim in a decision on October

27, 2017, and rejected Ms. Simmons’ identical claim in a decision on December 1,

2017.

Each petitioner (except for Ms. Simmons) filed a timely motion for

rehearing with the Kansas Supreme Court. That court denied Mr. Meredith’s,

Ms. Hill’s, Mr. Donaldson’s, Mr. Hirschberg’s, Mr. Burdick’s, and Mr. Brown’s

motions for rehearing on October 2, 2017. That court denied Mr. Richardson’s

and Mr. Scuderi’s motions for rehearing on December 20, 2017.

The question presented in each case is whether retroactive application of

amendments to KORA violate the Ex Post Facto Clause. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1257(a) because each petitioner claimed a

title, right, privilege, or immunity under the United States Constitution, Article 1,

section 10, and the Kansas Supreme Court denied that claim.

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Federal Constitutional provision involved in this case is the Ex Post

Facto Clause:

No State shall enter into any Treaty, Alliance, or

Confederation; grant Letters of Marque and Reprisal;

coin Money; emit Bills of Credit; make any Thing but

gold and silver Coin a Tender in Payment of Debts; pass

any Bill of Attainder, ex post facto Law, or Law

impairing the Obligation of Contracts, or grant any Title

of Nobility. [U.S. Const. art. 1, § 10];

The Kansas statute involved in this case is the Kansas Offender

Registration Act. K.S.A. 2011 Supp. 22-4901 et. seq. This statutory scheme is

attached as Appendix AA.

3

STATEMENT OF THE CASES

In each of these joined cases, the petitioner had been convicted of a state

offense and had been sentenced pursuant to Kansas law. In each case, at the time

of the offense, each petitioner either did not have to register as an offender in

Kansas pursuant to the Kansas Offender Registration Act (“KORA”) or was

subject to certain requirements (i.e. required to register within 10 days of a move)

or a registration requirement of a certain length. After amendments to KORA in

2008 and 2011, each of the petitioners was either required to register for the first

time or had increased registration periods or more severe registration

requirements imposed retroactively. A summary of the joined cases follows:

Petitioner

Offense

Original requirement Imposed

Meredith

Possession with Intent 10 years (2008)

Hill

Possession with Intent No registration (2010) 15 years (2012)

15 years (2013)

Donaldson Aggravated kidnapping No registration (2011) Lifetime (2012)

Hirschberg Possession with Intent 10 years (2010)

Brown

15 years (2011)

Possession with Intent No registration (2004) 10 years (2010)

Richardson Possession with Intent No registration (2003) 10 years (2011)

Scuderi

Possession with Intent No registration (2002) 10 years (2010)

Burdick

Distribution

Within 10 days (2009) Within 3 days (2013)

4

In each of these cases, petitioners sought relief, either (1) through a

declaration that no registration period should apply or that a shorter registration

period should apply or (2) seeking relief from later convictions for failure to

register under KORA, claiming that application of the enhanced superregistration provisions of KORA to them violated the Ex Post Facto Clause. Each

of the petitioners was denied relief in the state trial court and sought review on

direct appeal.

Ultimately, the Kansas Supreme Court rejected each of the Ex Post Facto

claims, holding that the super-registration scheme set out in the amended KORA

did not constitute “punishment” and therefore, did not implicate the Ex Post

Facto Clause.

5

REASONS FOR GRANTING THE WRIT

1. This Court should grant this petition to resolve the split in the federal

circuits as well as state courts (including the Kansas Supreme Court

itself) regarding whether increasingly punitive super-registration

schemes constitute punishment for purposes of the Ex Post Facto

Clause.

Introduction

In the lead case of these joined cases, the Kansas Supreme Court cited its

own previous holding that “there is insufficient proof of the punitive effects of

KORA on the class of sex offenders to override the nonpunitive legislative

intent.” State v. Meredith, slip op. at 9 (citing State v. Petersen-Beard, 377 P.3d 1127

(Kan. 2016), cert. denied 137 S. Ct. 226 (2016)). The Kansas Supreme Court went on

to hold that that the record was not sufficient to conduct an analysis “concerning

KORA’s punitive effects on drug offenders as a class distinct from sex offenders.”

Slip op. at 10. As a result, in each case, the Kansas Supreme Court held that each

petitioner was subject to the super-registration scheme required by KORA. See,

e.g., State v. Meredith, slip op. at 10. However, in each case, a three-justice

minority concluded that the “maximally invasive, maximally pervasive, and

infinitely more public incarnation” of KORA was punishment. See e.g., State v.

Meredith, Slip op. at 11 (Beier, J., dissenting).

In sum, the Kansas Supreme Court itself is split 4 to 3 on the question of

whether KORA registration is punishment—a split which has changed upon the

6

sole circumstance of a one-justice change of the personnel of that court.

This split in Kansas, a 4-3 split in this case along with several other cases

involving similar questions pertaining to KORA, is reflective of a wide split

across the country as to whether various offender super-registration laws that

have been made far more invasive and pervasive in the past several years are

punishment so as to prevent retroactive application. In reviewing the nature of

KORA and its amendments, it is clear that the Kansas super-registration scheme

is punishment in effect and in intent.

2011 KORA amendments create a super-registration scheme

On April 22, 2016, the Kansas Supreme Court issued Doe v. Thompson, 304

Kan. 291, 373 P.3d 750 (2016) and on the same day it overruled itself in State v.

Peterson-Beard, 304 Kan. 192, 198-209, 377 P.3d 1127 (2016). In Doe, the Kansas

Supreme Court found that KORA, after the 2011 amendments, constituted

punishment. It noted the differences between the super-registration scheme set

out in the current version of KORA and the fairly simply and non-intrusive

offender registration scheme that this Court held was not punitive in Smith v.

Doe, 538 U.S. 84, 103 (2003):

• KORA applies to a much broader group of offenders.

The 2011 KORA applies to sex offenders, violent offenders, and drug

offenders (with no personal use exception). K.S.A. 2011 Supp. 22–

4902. ASORA only applied to sex offenders and child kidnappers.

7

Alaska Stat. § 12.63.010 (2000).

• KORA requires frequent in-person reporting regardless of registration

changes.

KORA requires in-person quarterly reporting for sex offenders in

each location where the offender resides, maintains employment, or

attends school. K.S.A.2011 Supp. 22–4905(b). Additionally, transient

offenders must register in person in the location where the offender

is physically present every 30 days. K.S.A.2011 Supp. 22–4905(e).

ASORA did not require in-person reporting after initial registration.

Alaska required annual written verification for nonaggravated sex

offenses and quarterly written verification for aggravated offenses.

Alaska Stat. § 12.63.010(d) (2000).

• KORA often requires longer registration terms.

For the majority of first-time sex offenses, KORA requires 25 years

or lifetime registration. K.S.A.2011 Supp. 22–4906. For first-time

nonaggravated sex offenses, the ASORA required 15–year

registration. Alaska Stat. § 12.63.020 (2000).

• KORA requires additional registration information.

In addition to the registration information offenders were required

to provide under ASORA, KORA registration requires: alias dates or

places of birth; temporary lodging information; telephone numbers;

social security number; occupation; name of any anticipated

employer and anticipated place of employment; photocopies of

current driver’s licenses and identification cards; aircraft and

watercraft license plates and registration information; information

concerning where motor vehicles, aircraft, and watercraft are

habitually parked or otherwise kept; professional licenses,

designations, and certifications; preconviction mental health

treatment; schools attended or expected to be attended; travel and

immigration documents; name and telephone number of probation,

parole, or community corrections officer; email addresses; all online

identities used on the Internet; any information relating to

membership in online social networks; DNA exemplars; and the sex

8

and date of birth of each victim. Compare K.S.A.2011 Supp. 22–4907

with Alaska Stat. § 12.63.10 (2000).

• KORA requires in-person registration updates.

KORA additionally requires in-person registration updates within 3

days of any information change. K.S.A.2011 Supp. 22–4905(g). ASORA

required a written update for a change of residence. Alaska Stat. §

12.63.010(c) (2000).

• KORA requires additional information dissemination to the public.

In addition to the information made available to the public under

ASORA, KORA disseminates: any other offenses for which the

offender has been convicted or adjudicated; temporary lodging

information; address of any place where the offender will be a

student; and professional licenses, designations, and certifications

the offender holds. K.S.A. 2011 Supp. 22–4909(b)(3), (5), (8), and (10);

Alaska Stat. § 18.65.087 (2000).

• KORA imposes costly registration fees.

KORA requires that offenders remit a $20 fee, four times per year, in

each location where an offender resides, maintains employment, or

attends school. K.S.A.2011 Supp. 22–4905(k). ASORA allowed the

department of public safety to adopt fees for registration and

required that fees be based upon actual costs and be set at a level not

to discourage registration. Alaska Stat. § 18.65.087(d)(3) (2000).

• KORA requires provision of notice for travel outside the United States.

Under KORA, an offender must give 21 days’ notice of international

travel except in emergency situations. K.S.A.2011 Supp. 22–4905(o).

No restriction on travel was included in ASORA.

• KORA requires annual driver’s license and identification card renewal

and the Motor Vehicle Drivers’ License Act requires a distinguishing

number on the KORA registrant’s driver’s licenses.

9

K.S.A. 2011 Supp. 22–4905(l); K.S.A.2014 Supp. 8–243(d). ASORA

did not contain similar requirements.

• Kansas considers whether a parent is subject to KORA or is residing with

a person subject to KORA in determining child custody, residency, and

parenting time.

K.S.A.2011 Supp. 23–3203(h), (j). Alaska’s domestic relations code

did not require consideration of registered offender status. See

Alaska Stat. §§ 25.20.090 (2000); 25.24.150 (2000).

• KORA imposes draconian penalties for violations.

Under the 2011 KORA, a first conviction is a severity level 6 person

felony, a second conviction is a severity level 5 person felony, a third

conviction is a severity level 3 person felony, and a violation

continuing for more than 180 days is a severity level 3 person felony.

K.S.A.2011 Supp. 22–4903. In Kansas, nondrug felony offenses are

generally scaled 1-10, with 1 being the most serious. A severity level

3 person felony is the same as a conviction for kidnapping or

attempted second-degree murder. Under ASORA, the penalty for a

first-time failure to register was a class A misdemeanor. Alaska Stat.

§ 11.56.840 (2000). The penalty for a second time failure to register or

failure to register with the intent to escape detection or identification

and to facilitate the person’s commission of a sex offense or child

kidnapping was a class C felony, the lowest severity level felony in

Alaska. Alaska Stat. § 11.56.835, § 11.81.250 (2000).

Doe, 304 Kan. at 317-20.

In Petersen-Beard, issued the same day as Doe, a slightly different majority

of the Kansas Supreme Court held 4-3 that these exact same differences did not

amount to punishment and therefore could be imposed retroactively. 304 Kan. at

198-209.

10

Nationwide split of authority

Kansas certainly is not the only state to dramatically amend its offender

registration law since Smith. Just recently, in Does v. Snyder, 834 F.3d 696 (6th Cir.

2016) cert. denied 138 S. Ct. 55 (2017), the Sixth Circuit noted:

Like many states, Michigan has amended its Sex Offender

Registration Act (SORA) on a number of occasions in recent years

for the professed purpose of making Michigan communities safer

and aiding law enforcement in the task of bringing recidivists to

justice. Thus, what began in 1994 as a non-public registry

maintained solely for law enforcement use, see Mich. Pub. Act 295, §

10 (1994), has grown into a byzantine code governing in minute

detail the lives of the state’s sex offenders

834 F.3d at 697. Given the general expansion of registration laws, multiple states

and federal circuits have addressed whether the amendments can be applied to

offenders who committed offenses prior to the various amendments and those

courts have come to varying results. Several circuit courts and state courts have

found offender registration laws are not punitive. See generally Shaw v. Patton,

823 F.3d 556, 571–72 (10th Cir. 2016) (finding Oklahoma’s SORA did not have

punitive effect); Doe v. Cuomo, 755 F.3d 105, 111-2 (2d Cir. 2014) (finding the

notification and registration provisions were not punitive and did not violate the

Ex Post Facto law); New York SORA) (upholding triennial in-person reporting

for level-one offenders); Litmon v. Harris, 768 F.3d 1237, 1243 (9th Cir. 2014)

(finding that application of California’s registration provisions did not violate the

11

Ex Post Facto clause).

In contrast, the Sixth Circuit found Michigan’s expanded registration laws

punitive such that they cannot be applied retroactively. Does, 834 F.3d at 705

(citing Doe v. State, 111 A.3d 1077, 1100 (N.H. 2015); State v. Letalien, 985 A.2d 4,

26 (Me. 2009); Starkey v. Oklahoma Dep’t of Corr., 305 P.3d 1004 (Okla. 2013);

Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009); Doe v. State, 189 P.3d 999, 1017

(Alaska 2008)); see also Commonwealth v. Muniz, 164 A.3d 1189, 1218 (Pa. 2017)

(finding retroactive application of Pennsylvania’s offender registration act

violates its ex post facto clause).

By 1996, every state had enacted some form of an offender registration

law. Smith, 538 U.S. at 90. In the intervening years, states have amended and

greatly expanded their offender registration acts. Further, many of the offender

registration acts include similar provisions. Enforcement of those provisions

should not vary based upon which state or circuit an offender resides in. The

disparate conclusions regarding enhanced registration schemes warrants review

by this Court. When the Kansas Supreme Court issues different decisions on the

same day on the same question, it is evidence that Smith is no longer sufficient

guidance on this important question.

12

KORA is punishment

A review of the super-registration scheme found in KORA and its 2011

amendments leads to the conclusion that it is punishment and that retroactive

application violates the Ex Post Facto Clause. This becomes clear upon

reviewing factors set forth by this Court in Kennedy v. Mendoza-Martinez, 372 U.S.

144, 168-69 (1963). Those factors are:

1.

Whether the sanction involves an affirmative disability or restraint.

2.

Whether it has historically been regarded as a 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.

7.

Whether it appears excessive in relation to the alternative purpose

assigned.

Mendoza-Martinez, 372 U.S. at 170.

The additional requirements placed on individuals after the 2011

amendments places an affirmative disability or restraint on offenders. First, an

offender must report in person four times per year in any county in which the

offender lives, works, or goes to school. K.S.A. 2011 Supp. 22-4905(b). The

13

statutory scheme also requires that the offender pay a $20 fee each time he or she

reports, in each county where he lives, works, or goes to school. K.S.A. 2011

Supp. 22-4905(k). Further, an offender must also notify law enforcement 21 days

prior to travel outside the United States. K.S.A. 2011 Supp. 22-4905(o). These

added restrictions constitute an affirmative disability or restraint.

Not only are the reporting requirements an affirmative restraint, these

reporting requirements are similar to the reporting requirements for individuals

on parole, postrelease or probation. Anyone that is released, but under some

form of supervision, is required to keep the authorities of their residence and

employment. Doe, 304 Kan. at 322. Such reporting is part and parcel with

probation requirements and part and parcel with the punishment.

Further, failure to report can result in severe criminal sanctions. The crime

of violating KORA is triggered by a conviction of a criminal offense, no

additional finding of scienter is required. It is, for all practical purposes, a strict

liability crime. K.S.A. 2011 Supp. 22-4903(a). The first offense is a severity level 6

offense; a second offense is a severity level 5 offense, while a third or subsequent

offense is a severity level 3 offense. K.S.A. 2011 Supp. 22-4903(c)(1)(A)-(C).

Depending on an individual’s criminal history, this could result in a sentence as

much as 228 months incarceration. See K.S.A. 2016 Supp. 21-6804. Yet, despite

the severity of sanctions underlying the act, there is no connection between the

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onerous requirements of KORA and the purported goal of the act, which is to

protect the public. As stated by Justice Johnson, “Too much is too little.” Doe,

304 Kan. at 326. The act lumps everyone into one group. It does not even attempt

to differentiate between those who would be considered a risk to the public and

those who are not. The result is that the purported purpose is not furthered by

its various requirements, but it does serve as additional and severe punishment

for those that fall under the statute.

Not only is the potential punishment under KORA severe, it is excessive.

The excessive nature of KORA is reflected in that violations of KORA carry more

severe penalties than many of the criminal offenses triggering the requirement to

register in the first place. Under the 2011 KORA, the severity level increases with

multiple violations. However, even an individual’s first violation is severe. The

severity levels are: first conviction - severity level 6 person felony, second

conviction - severity level 5 person felony, third conviction - severity level 3

person felony, and any continuing violation - severity level 3 person felony.

K.S.A. 2011 Supp. 22–4903(c). Those required to register include a wide swath of

convicted individuals including: sex offenders, violent offenders, and drug

offenders. The “offenders” run the gamut from first-degree murder down to

misdemeanors. For example, KORA requires an individual convicted of

misdemeanor sexual battery to register. K.S.A. 2011 Supp. 22-4902(b)(5). Such

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harsh sentences for what are otherwise considered low level felonies or even

misdemeanors, establishes the excessive nature of the act.

Finally, the excessive nature of KORA is evident in its differences with the

federal Sex Offender Registration and Notification Act (“SORNA”).

SORNA differentiates between classes of offenders, whereas KORA

is a one-size-fits-all scheme; KORA is not restricted to just sex

offenders, whereas SORNA is; KORA has no mechanism for

obtaining an early release from the registration requirement,

whereas SORNA allows for a reduction in registration time for a

clean record; KORA requires a special, annually renewed driver's

license and child custody notification not found in SORNA; KORA

requires more registration information than SORNA; KORA

imposes a fee, whereas SORNA does not; and KORA has a broader

definition of “resides” than SORNA. See 42 U.S.C. §§ 16911, 16914–

16 (2012). In other words, looking at the statutory scheme as a

whole, the effects of KORA are considerably more punitive than

those of SORNA.

Doe, 304 Kan. at 328. Given these provisions, the factors establish that KORA is

punitive nature and cannot be applied retroactively.

As stated by the Doe majority, “Too much is too little.” 373 P.3d at 770. As

KORA is currently enacted, it lumps all offenders into one group. It does not

attempt to differentiate between those who would be considered a risk to the

public and those who are not. The result is that its purported public safety

purpose is not furthered by its many onerous requirements. Thus, for many

offenders, KORA operates exclusively to punish.

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Summary

Because the 2008 and 2011 amendments to KORA result in a superregistration scheme that is punitive in nature, they cannot be applied

retroactively to offenses that were committed before their enactments. The

Kansas Supreme Court is sharply divided on this question, reversing itself based

on nothing but a change of one justice in the Court’s personnel. And courts

around the country are similarly split regarding whether super-registration

schemes are punishment for purposes of the United States Constitution. For this

reason, each petitioner respectfully requests that this Court issue a writ of

certiorari and hold that KORA super-registration is punishment within the

meaning of the United States Constitution, vacate the judgments of the Kansas

Supreme Court, and remand with directions.

Respectfully submitted,

________________________________

Randall L. Hodgkinson*

Kansas Appellate Defender Office

700 Jackson, Suite 900

Topeka, KS 66603

(785) 296-5484

E-mail: rhodgkinson@sbids.org

Meryl Carver-Allmond

Capital Appellate Defender Office

*Counsel of Record

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