Petition for Writ of Certiorari — Kentucky v. Baker

09-775 DEC 23 2009

No. 09-____

| O Supreme Court, U.S.

144

Supreme Court of the Hnited States

COMMONWEALTH OF KENTUCKY,

Petitioner,

v.

MICHAEL BAKER,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of Kentucky

PETITION FOR WRIT OF CERTIORARI

JACK CONWAY

ATTORNEY GENERAL OF KENTUCKY

JASON B. Moore”

MicHaAEeL L. HARNED

ASSISTANT ATTORNEYS GENERAL

(COUNSEL OF RECORD)

1024 Capita, CENTER DRIVE

FRANKFORT, KENTUCKY 4060 |

(502) 696-5342

COUNSEL FOR PETITIONER

COMMONWEALTH OF KENTUCKY

* COUNSEL OF RECORD

.

QUESTION PRESENTED

Do the Kentucky residency restrictions for registered

sex offenders violate the ex post facto prohibition when

applied to registrants who committed their offenses

requiring registration prior to the effective date of the

statute but who resided in a prohibited area after the

statute took effect?

ill.

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......:sssosscssssessessessssesessseeeee i

TABLE OF AUTHORITIES ........csssecsscssssssesssssesenseess iv

i inisicisccnnnciaancnohecamen 1

STATEMENT OF JURISDICTION ..........c:sesscesssesoes 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .......ccsccssscssssssessecssecsesseceees 1

STATEMENT OF THE CASE ..........csscssssesecsssesseeseeeeee 4

REASONS FOR GRANTING THE WRIT o.....scssscsee 8

A. The Kentucky Supreme Court’s Decision Conflicts

With Decisions of Other State Supreme Courts

and Federal Courts of Appeal ...............cccsccesssessees 9

B. The Kentucky Supreme Court Has Refused to

Follow This Court’s Directive In Smith That

Deference Be Given To the Legislature’s Intent In

The Absence of The Clearest Proof Of A Punitive

PI Tr SI ona cdenctisnccsnctebiasnatsdaansnnasintaerens 16

C. The Question Presented In This Matter Is One of

National Importance Given The Prevalence of

Sexual Offender Residency Restriction Laws .... 20

CFCS wsiicssscasssneceesonssacsallibippissensamnaabevielacsun 22

iv.

TABLE OF AUTHORITIES

Page

Cases

Akins v. Snow, 922 F.2d 1558 (11th Cir. 1991) ....... 14

Commonwealth v. Baker,

BOS B.W.3E GBT Cy. BOGS) ..cccccccescccccccsvesesccscccceseceseces 1

Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) ............. 11

Hawker v. New York, 170 U.S. 189 (1898)............... 15

Hudson v. United States, 522 U.S. 93 (1997)............. 9

Kansas v. Hendricks, 521 U.S. 346 (1997).............006 8

Kennedy v. Mendoza-Martinez,

ee ils: Ne CEE vetreceunteniversesexcescesenes 6, 8, 13, 16, 17

Lee v. State,

895 So.2d 1038 (Ala.Crim.App. 2004) ..................000 15

McKune v. Lile, 536 U.S, 24, 33 (2002).................... 20

Mikaloff v. Walsh, No. 5:06-CV-96,

2007 WL 2572268 (N.D. Ohio 2007).....................2008 10

Miller v. Florida, 482 U.S. 423 (1987) ..............cseee 14

People v. Leroy, 828 N.E.2d 769

Ss: te I IEEE a susineisatuoceebnaaainiiindiiis 15

V.

TABLE OF AUTHORITIES

(Continued)

Page

People v. Morgan, 881 N.E.2d 507

GR: OF IIL SIIIPT F ccncsvacsenesssesscccnsverceccnssassnesenscioes 16

Pollard v. State, 908 N.E.2d 1145 (Ind. 2009).....9, 10

Smith v. Doe, 538 U.S. 84 (2003)................cc000 passim

State v. Seering, '701 N.W.2d 655 (Iowa 2005)......... 13

Thompson v. State, 603 S.E.2d 233 (Ga. 2004)........ 14

United States v. Ju Toy, 198 U.S. 253 (1905).......... 17

United States v. Ursery, 518 U.S. 267 (1996) .......... 14

United States v. Ward, 448 U.S. 242 (1980) .......... 8,9

Weaver v. Graham, 450 U.S. 24 (1981).................... 14

Constitutional Provisions:

Is I SEA. TIES... ss cinenscavadicecaiigabionmbenanssasusineesaaneaiadl 2

Be i TI, TIE 5 cnincsoninsosndoedcactitenencbaiedinniacanvanaaaan 5

Fs GC : SEs Bc TOO is vicsidsisnsiesensbesocsamicsonaeemnamane 2

vi.

TABLE OF AUTHORITIES

(Continued)

Page

U.S. Const., Fifth Amendment .............00:sseseerereseeeeees 5

U.S. Const., Fourteenth Amendment ..................000 5

Statutes:

Be Re tes BMT) cccncccscveccccsccvccscencsccccscncccssocesescocconss 1

720 Illinois Compiled Statutes 5/11-9.3(b-5) ........... 16

720 Dlinois Compiled Statutes § 5/11-9.4(b-5) ........ 15

Alabama Code of 1975 § 15-20-26(a)..............c-sesseees 15

Sr I SITE TE... sc sninonsnnnnenoncnabencsébeuneansecce 11, 13

Kentucky Revised Statute 17.495 ...............ceccesceseeeees 4

Kentucky Revised Statute 17.500 ................0.c0sceseeeees 4

Kentucky Revised Statute 17.520 .................:cceseseeeees 5

Kentucky Revised Statute 17.546 .................... passim

Kentucky Revised Statute 17.580 ...................c.ceeeeeee 4

Kentucky Rule of Civil Procedure 76.37(10).............. 5

vii.

TABLE OF AUTHORITIES

(Continued)

Page

Official Code of Georgia Annotated § 42-1-13 ......... 14

Other Sources:

Center for Sex Offender Management, Legislative

Trends in Sex Offender Management,

Cg SRR a: RATT 21

L.Song & R. Lieb, Adult Sex Offender Recidivism:

A Review of Studies, (Washington State Institute for

Bs Es MPU iccciscncecocccnncenesscesenecmscsessincstes 20

U.S. Dept. Of Justice, Bureau of Justice Statistics,

Sex Offenses and Offenders (1997) .............ccccsesceeees 20

U.S. Dept. of Justice, Bureau of Justice Statistics,

Recidivism of Prisoners Released in 1983 (1997).... 20

Appendix

1. Commonwealth v. Baker, 295 S.W.3d 437 (Ky.

RT NE a ae A Pe la

PETITION FOR A WRIT OF CERTIORARI

The Commonwealth of Kentucky respectfully

petitions for a writ of certiorari to review the judgment

of the Kentucky Supreme Court in this case.

OPINION BELOW

The Kentucky Supreme Court’s opinion is reported

as Commonwealth v. Baker, 295 S.W.3d 437, 2009 WL

3161371 (Ky. 2009). Petitioner’s Appendix (“App.”) la—

32a.

STATEMENT OF JURISDICTION

The Kentucky Supreme Court rendered the

judgment from which relief is sought on October 1,

2009. App. at la. This Court has jurisdiction pursuant

to 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Kentucky Revised Statute 17.545

Registrant prohibited from residing in certain areas;

violations; exception

(1) No registrant, as defined in KRS 17.500, shall reside

within one thousand (1,000) feet of a high school,

middle school, elementary school, preschool, publicly

owned playground, or licensed day care facility. The

measurement shall be taken in a straight line from

the nearest property line of the school to the nearest

property line of the registrant’s place of residence.

2

(2) For purposes of this section:

(a) The registrant shall have the duty to ascertain

whether any property listed in subsection (1) of

this section is within one thousand (1,000) feet

of the registrant’s residence; and

(b) If a new facility opens, the registrant shall be

presumed to know and, within ninety (90) days,

shall comply with this section.

(3) Any person who violates subsection (1) of this

section shall be guilty of:

(a) A Class A misdemeanor for a first offense; and

(b) A Class D felony for the second and each

subsequent offense.

(4) Any registrant residing within one thousand (1,000)

feet of a high school, middle school, elementary

school, preschool, publicly owned playground, or

licensed day care facility on July 12, 2006, shall

move and comply with this section within ninety

(90) days of July 12, 2006, and thereafter, shall be

subject to the penalties set forth under subsection

(3) of this section.

(5) This section does not apply to a youthful offender

probated or paroled during his or her minority or

while enrolled in an elementary or secondary

education program.

3

Article I, Section 10 of the United States Constitution

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.

4

STATEMENT OF THE CASE

1. The Kentucky General Assembly first enacted a

law placing residency restrictions on registered sex

offenders during the 2000 Regular Session as part of

Senate Bill 263. Codified as KRS 17.495, and effective

April 11, 2000, the original restriction provided as

follows:

No registrant, as defined in KRS 17.500, who is

placed on probation, parole, or other form of

supervised release, shall reside within one

thousand (1,000) feet of a high school, middle

school, elementary school, preschool, or licensed

day care facility. The measurement shall be

taken in a straight line from the nearest wall of

the school to the nearest wall of the registrant’s

place of residence.

In 2004, KRS 17.495 was amended by the General

Assembly to specifically exempt youthful offenders

from the residency restrictions.

During the 2006 Regular Session of the General

Assembly, House Bill 3 was enacted which repealed

KRS 17.495, amended the residency restriction statute,

and reenacted it as a new section of KRS 17.500 to

KRS 17.580. The current form of the statute,

KRS 17.545, became effective on July 12, 2006.

2. On March 31, 1995, respondent entered a plea of

guilty to a charge of third-degree rape in the Kenton

County, Kentucky, Circuit Court, case number 94-CR-

00427. App. 5a. As a result of his conviction,

respondent was required to register as a sex offender

5

for a period of ten years pursuant to Kentucky Revised

Statute (KRS) 17.520. For reasons that are unclear in

the record, respondent’s period of registration is to

expire on March 27, 2010. Id.

On February 2, 2007, respondent resided at

440 Merravay Drive in Elsmere, Kenton County,

Kentucky. On that date, he was arrested and charged

with being in violation of KRS 17.545 because his

residence was located within 1,000 feet of East Covered

Bridge Park. Id. Respondent subsequently moved the

trial court to dismiss the charge on the basis that

KRS 17.545 violated the following constitutional

protections: 1) The Equal Protection Clause of the

Fourteenth Amendment to the United States

Constitution; 2) Substantive Due Process as set forth

in the Fifth Amendment to the United States

Constitution; 3) The Ex Post Facto Clauses in Article

1, Section 10 of the United States Constitution and

Section 19(1) of the Kentucky Constitution; and 4) The

Inalienable Property Rights Provision as set forth in

Section 1(5) of the Kentucky Constitution. Jd.

On April 20, 2007, the trial court entered an opinion

and order granting respondent’s motion to dismiss on

the basis that KRS 17.545 constituted an ex post facto

punishment as applied to respondent whose triggering

sex offender conviction pre-dated the effective date of

the statute. App. 5a-6a. The trial court did not consider

any of the other grounds raised in the motion to dismiss

because they were mooted by its decision on the ex post

facto claim. App. 6a.

The Commonwealth then moved the Kentucky

Supreme Court for certification of the law, pursuant to

Kentucky Rule of Civil Procedure (CR) 76.37(10), as to

6

whether KRS 17.545 constituted an ex post facto

violation when applied to registered sex offenders who

committed the offense requiring registration prior to

July 12, 2006, the effective date of the statute. App.

6a. By a 5-2 vote, the Kentucky Supreme Court,

applying the two-part test established by this Court in

Smith v. Doe, 538 U.S. 84, 92 (2003), certified that the

statute did violate the ex post facto prohibition under

those circumstances. App. 19a.

The court first found the General Assembly had

intended KRS 17.545’s residency restriction to be a civil,

nonpunitive, regulatory scheme. App. 10a. In reaching

this conclusion, the court noted the General Assembly

had not expressly stated its intent in enacting the

statute, but its implied intent was nonpunitive based

on the manner of the statute’s codification and the fact

that penalties for violating the statute only attached if

the registrant failed to move. App. 9a-10a.

Applying the second part of the Smith test, however,

the court found the residency restriction to be so

punitive in effect as to negate the General Assembly’s

intent to create a civil regulatory scheme. App. 9a.

In making this determination, the court considered the

five factors from Kennedy v. Mendoza-Martinez, 372

U.S. 144, 168-169 (1963), that this Court found relevant

to its decision in Smith, 538 U.S. at 97. Those five

factors “are whether, in its necessary operation, the

regulatory scheme: [1] has been regarded in our history

and traditions as a punishment; [2] imposes an

affirmative disability or restraint; [3] promotes the

traditional aims of punishment; [4] has a rational

connection to a nonpunitive purpose; or [5] is excessive

with respect to this purpose.” Jd.; App. lla. The

7

Kentucky Supreme Court found that all five of these

factors weighed in favor of concluding KRS 17.545 was

punitive in effect. App. 18a.

Specifically, the Kentucky Supreme Court found the

residency restriction was “decidedly similar to

banishment” and, thus, had traditionally been regarded

as punishment in our history and traditions. App. 12a.

The Kentucky Supreme Court also found the residency

restriction promoted the traditional aims of

punishment because the restrictions applied solely

because prior convictions made a person a registered

sex offender, App. 13a, and the residency restriction

imposed an affirmative disability or restraint on

registered sex offenders because it prohibited them

from living within certain defined areas. App. 14a.

Next, the Kentucky Supreme Court concluded that

KRS 17.545 did not have a rational connection to the

nonpunitive purpose of protecting public safety because

the statute did not regulate any and all possible contact

between registered sex offenders and children.

App. 15a. Finally, the Kentucky Supreme Court found

KRS 17.545 was excessive with respect to the

nonpunitive purpose of protecting public safety because:

1) the statute applied to all registered sex offenders

without an individualized assessment of whether a

particular offender is a threat to public safety; and,

2) because of what the Kentucky Supreme Court said

was “fluidity” in the residency restrictions. App. 16a-

18a.

Two justices dissented from the court’s decision that

the retroactive application of thé statute constituted

an ex post facto violation. According to the dissent, the

majority of the court had “with respect to a most difficult

8

social problem, arrogated to itself the role of legislator

and ha[d] substituted its public policy judgment for that

of the General Assembly.” App. 19a. The dissent

further stated that the majority had failed to properly

defer to the General Assembly's intent in enacting the

statute and had erroneously been too strict in applying

the Meridoza-Maritinez factors. App. 21a, 23a, 27a, and

la. |

REASONS FOR GRANTING THE WRIT

This Court has never considered whether the

retroactive application of a statute imposing a residency

restriction on registered sex offenders constitutes

punishment prohibited by the ex post facto clause. The

framework for such a review, however, has been well

established. Smith, 538 U.S. at 92. Under that

framework, the Court must first ascertain whether the

legislature intended for “the statute to establish ‘civil’

proceedings.” Id. (quoting Kansas v. Hendricks, 521

U.S. 346, 361 (1997)). If the legislature did intend to

create a civil, nonpunitive, regulatory scheme, then that

scheme must be examined to determine whether it is

“so punitive either in purpose or effect as to negate

[the State’s] intention’ to deem it ‘civil.” Jd. (quoting

Hendricks, supra, at 361 (quoting United States v.

Ward, 448 U.S. 242, 248-49)).

In examining the purpose and effect of the

regulatory scheme, however, this Court has held that

deference must be given to the legislature’s intent to

enact a civil, nonpunitive, regulatory scheme. Id.

(citing Hendricks, supra, at 361). Further, “only the

clearest of proof’ will suffice to override legislative

9

intent and transform what has been denominated a

civil remedy into a criminal penalty.” Jd. (quoting

Hudson v. United States, 522 U.S. 93, 100 (1997)

(quoting Ward, supra, at 249)). Most courts that have

considered the issue have held that the retroactive

application of a residency restriction statute to

registered sex offenders does not constitute punishment

prohibited by the ex post facto clause. By contrast, the

Kentucky Supreme Court, following the lead of the

Indiana Supreme Court in Pollard v. State, 908 N.E.2d

1145 (Ind. 2009), held that Kentucky’s residency

restriction statute was so punitive in its purpose and/

or effect as to negate the Kentucky General Assembly’s

intent that the statute be part of a civil, nonpunitive,

regulatory scheme. Certiorari should be granted to

resolve this conflict among the courts and because the

Kentucky Supreme Court has refused to follow this

Court's directive in Smith, supra, that deference be

given to the legislature’s intent in the absence of the

clearest proof of a punitive purpose or effect.

A. THE KENTUCKY SUPREME COURT’S

DECISION CONFLICTS WITH DECISIONS

OF OTHER STATE SUPREME COURTS AND

A FEDERAL COURT OF APPEALS

The Kentucky Supreme Court recognized that its

decision conflicted with the decisions of several state

supreme courts, state courts of appeal, and a federal

court of appeals which had upheld residency restriction

statutes against ex post facto challenges. App. 6a, n. 2.

However, it also noted that one state supreme court

and a United States District Court had found the

10

retroactive application of such statutes did constitute

ex post facto violations. Only this Court can establish

a uniform rule on this constitutional issue.

In this case, the Kentucky Supreme Court

determined that KRS 17.545, which prohibits

registered sex offenders from residing within 1,000 feet

of a high school, middle school, elementary school,

preschool, publicly owned playground, or licensed day

care facility, constitutes a retroactive punishment in

violation of the ex post facto clause when applied to

registered sex offenders whose crimes were committed

prior to the effective date of the statute constitutes a

retroactive punishment in violation of the ex post facto

clause. Applying the test set forth in Smith, supra,

538 U.S. at 92, the Kentucky Supreme Court concluded

that, although the Kentucky General Assembly had

intended KRS 17.545 to be a civil, non-punitive,

‘regulatory scheme, App. 10a, the statute was so

punitive in effect as to negate the legislature’s intent.

App. 18a. The Indiana Supreme Court and the United

States District Court for the Northern District of Ohio

have likewise held that the retroactive application of

residency restriction statutes constitutes an ex post

facto violation. See Pollard, supra (application of

residency restriction statute to sex offender convicted

prior to effective date of statute violates ex post facto

clause contained in Indiana Constitution); See also

Mikaloff v. Walsh, No. 5:06-CV-96, 2007 WL 2572268

(N.D. Ohio 2007) (not reported in F.Supp.2d)

(retroactive application of Ohio’s residency restriction

statute violates the ex post facto clause contained in

the United States Constitution) In contrast to these

two decisions, other state supreme courts and courts

11

of appeal, as well as a federal court of appeals, have

reached the opposite conclusion. :

The United States Court of Appeals for the Eighth

Circuit has considered and rejected a claim that the

retroactive application of a state sex offender residency

restriction statute violates the ex post facto prohibition.

In Doe v. Miller, 405 F.3d 700 (8th Cir. 2005), that court

addressed such a challenge to Iowa’s sex offender

residency restriction statute, Iowa Code § 692A.2A.

In considering the question, the Eighth Circuit applied

the Smith framework and concluded that Iowa’s statute

was intended to be civil and was not so punitive in effect

as to override the legislature’s intent. The Eighth

Circuit specifically concluded that the residency

restriction was not the equivalent of banishment, and

that the fairly recent origin of such restrictions

suggested the restrictions did not involve a traditional

means of punishing. Id. at 719-720. The Eighth Circuit

recognized that a residency restriction statute does

impose a disability or restraint on a sex offender subject

to it. However, the Eighth Circuit concluded that the

presence of a disability or restraint merely served to

highlight the importance of the final two factors

analyzed under Smith: whether the law was rationally

related to a nonpunitive purpose and whether it was

excessive in relation to that purpose. Id. at 721.

In analyzing these two factors, the Eighth Circuit

noted that “[t]he requirement of a ‘rational connection’

is not demanding: [a] ‘statute is not deemed punitive

simply because it lacks a close or perfect fit with the

nonpunitive aims it seeks to advance.” Id. (quoting

Smith, supra, at 103). The Eighth Circuit concluded

the Iowa sex offender residency restriction statute

12

“no doubt” had a purpose other than punishing sex

offenders, and that the legislature could reasonably

conclude the statute would protect public safety. Id.

The Eighth Circuit also concluded the statute was not

excessive in relation to its nonpunitive purpose despite

the fact the statute did not make an individualized risk

assessment before it applied to a particular sex

offender. The Eighth Circuit stated:

The absence of a particularized risk assessment,

however, does not necessarily convert a

regulatory law into a punitive measure, for ‘[t]he

Ex Post Facto Clause does not preclude a State

from making reasonable categorical judgments

that conviction of specified crimes should entail

particular regulatory consequences.’

Id. (quoting Smith, supra, at 103).

The Eighth Circuit also stated that an argument

that the legislature must tailor a residency restriction

“to the individual circumstances of different sex

offenders” was inconsistent with this Court’s direction

“that the ‘excessiveness’ prong of the ex post facto

analysis does not require a ‘close or perfect fit’ between

the legislature’s nonpunitive purpose and the

corresponding legislation.” Id. at 722.

In view of the higher-than-average risk of

reoffense posed by convicted sex offenders, and

the imprecision involved in predicting what

measures will best prevent recidivism, we do not

13

believe the Does have established that Iowa’s

decision to restrict all such offenders from

residing near schools and child care facilities

constitutes punishment despite the legislature’s

regulatory purpose.

Id. at 722.

The Iowa Supreme Court has also considered

whether the retroactive application of Iowa Code

§ 692A.2A constituted an ex post facto violation in Siate

vu. Seering, 701 N.W.2d 655 (Iowa 2005). In considering

the issue, the lowa Supreme Court applied this Court’s

framework as set out in Smith. Id. at 666-669. The

lowa Supreme Court first concluded that the legislature

had intended the statute to be nonpunitive. Id. at 667.

The court then analyzed the effect of the statute under

the Mendoza-Martinez factors utilized by this Court in

Smith.

First, the lowa Supreme Court determined that the

residency restriction was “far removed from the

traditional concept of banishment” because it only

restricted sex offenders from residing in particular

areas and left them “free to engage in most community

activities.” Id. at 667-668. The Iowa Supreme Court

then acknowledged that the residency restriction

statute might have some deterrent effect, but noted |

that many “governmental restrictions, especially those

designed to protect the health and safety of children”

have some deterrent effect without imposing

punishment. Jd. at 668. The lowa Supreme Court also

recognized that the residency restriction statute

imposed a form of disability; but the nature of the

disability was not absolute. Jd. The statute did,

14

however, clearly have a rational connection to a

nonpunitive purpose - the protection of society, and it

was not excessive with respect to that purpose

“considering the special needs of children in this

particular area and the imprecise nature of protecting

children from the risk that convicted sex offenders

might reoffend.” Id. After considering the factors set

forth by this Court in Smith, the lowa Supreme Court

concluded the residency restriction statute was not so

punitive in its effect as to impose criminal punishment.

Id. |

The Georgia Supreme Court likewise held that

state’s sex offender residency restriction statute, OCGA

§ 42-1-13, did not violate the ex post facto clause when

applied retroactively. Thompson v. State, 603 S.E.2d

233 (Ga. 2004). Although the Georgia Supreme Court

did not specifically apply the Smith framework in

deciding the ex post facto claim, it still looked at whether

the statute applied retrospectively, whether the statute

was punitive or regulatory, and, if regulatory, whether

the effect of the statute was punitive. Jd. at 235 (citing

Weaver v. Graham, 450 U.S. 24, 36 (1981); United States

v. Ursery, 518 U.S. 267, 288-290 (1996); and Akins v.

Snow, 922 F.2d 1558 (11th Cir. 1991)).

Applying this analysis, the Georgia Supreme Court

determined that the state’s sex offender residency

restriction did not constitute an ex post facto violation

because the statute did not apply retrospectively, i.e.

the statute did not “alter[ }] the consequences for crimes

committed prior to its enactment.” Jd. (citing Miller v.

Florida, 482 U.S. 423, 430 (1987)). Rather, the

residency restriction statute “simply declares that

convicted sex offenders who currently reside within

15

certain well-defined areas are guilty of a felony. Ifa

convicted offender violates the statute, he can be

prosecuted (or have his probation revoked) for that

current violation.” Id. (citing Hawker v. New York, 170

U.S. 189 (1898) (new law criminalizing practice of

medicine by convicted felon was not ex post facto)).

’ In Lee v. State, 895 So.2d 1038 (Ala.Crim.App.

2004), the Court of Criminal Appeals of Alabama

considered whether the retroactive application of that

state’s sex offender residency restriction statute, § 15-

20-26(a), Ala.Code 1975, constituted an ex post facto

violation. Applying this Court’s Smith test, the

Alabama court held that the Alabama Legislature’s

intent in promulgating the statute was to create a civil,

nonpunitive regulatory scheme and that the statute

was not so punitive in its effect as to negate that intent.

Specifically, the Alabama court found that there was

no factual basis, much less “the clearest proof,” in the

record to support a finding, based on the five factors

considered by this Court in Smith, “that the effects of

the residency requirement. . . negate the Legislature’s

intention to protect the public, in particular children,

from convicted sex offenders.” Id. at 1044.

The Fifth District Appellate Court of Illinois

followed suit by determining the retroactive application

of that state’s sex offender residency restriction statute,

720 ILCS 5/11-9.4(b-5), which prohibits a child sex

offender from residing “within 500 feet of a playground

or facility providing programs or services exclusively

directed toward persons under 18 years of age,” did

not constitute an ex post facto violation. People v. Leroy,

828 N.E.2d 769 (Ill.App. 5 Dist. 2005). The Ilinois court

directly applied the Smith framework in deciding the

16

ex post facto claim and concluded the statute was not

so punitive in effect as to negate the Illinois legislature’s

intent to create a civil regulatory scheme. Id. at 778-

782.

Specifically, the [llinois court found that

application of the five Mendoza-Martinez factors did

not weigh in favor of concluding the effect of the

residency restriction was punitive, even though the

statute did impose some disability or restraint on those

persons subject to it, and because it might deter future

crimes. The Illinois court noted “that to hold that the

mere presence of a deterrent purpose renders a statute

criminal would severely undermine the government’s

ability to engage in effective regulation.” Jd. at 781

(citing Smith, 538 U.S. at 102) (“Any number of

governmental programs might deter crime without

imposing punishment.”). Further, the Illinois court

found that the imposition of a disability or restraint

alone was insufficient to create a punitive effect. Id.

See also, People v. Morgan, 881 N.E.2d 507 (Tll.App. 3

Dist. 2007) (retroactive application of 720 ILCS 5/11/

9.3(b-5), which prohibits a child sex offender from

residing “within 500 feet of a school building or the

real property comprising any school that persons under

the age of 18 attend,” does not constitute an ex post

facto violation).

17

B. The Kentucky Supreme Court Has Refused

To Follow This Court’s Directive In Smith That

Deference Be Given To The Legislature’s

Intent In The Absence Of The Clearest Proof

Of A Punitive Purpose Or Effect

Although all of the courts have agreed to a certain

extent that residency restriction statutes might

incidently promote a traditional aim of punishment and

impose some degree of disability or restraint on the

offender, the Kentucky Supreme Court veered from the

holdings of the courts cited above in its analysis of the

other three Mendoza-Martinez factors. Additionally,

the Kentucky Supreme Court’s decision conflicts with

this Court’s analysis of those factors in Smith in many

ways. In doing so, the Kentucky Supreme Court has

substituted its own policy judgment to override the

intent of the Kentucky General Assembly despite the

absence of any proof, much less the clearest proof, of a

punitive purpose or effect. First, the Kentucky Supreme

Court concluded the residency restriction was

“decidedly similar to banishment,” App. 12a, and that

such restrictions, even though of recent origin, “have

been regarded in our history and traditions as

punishment.” Jd. However, because the residency

restrictions contained in KRS 17.545 leave registrants

free to visit, work, and participate in the community

they are not a traditional form of punishment such as

banishment which this Court has defined as

“punishment inflicted upon criminals by compelling

them to quit a city, place, or country, for a specified

period of time, or for life.” United States v. Ju Toy, 198

U.S. 253, 269-70 (1905). The recent origin of these

18

restrictions refutes that they “have been regarded in

our history and traditions as punishment.”

Second, the Kentucky Supreme Court found

KRS 17.545 did not have a rational connection to the

nonpunitive purpose of protecting public safety because

the statute did not prohibit sex offenders from having

any and all contact with children but rather only

prohibited sex offenders from residing within certain

prohibited areas. App. 15a. “It is difficult to see how

public safety is enhanced by a registrant not being

allowed to sleep near a school at night, when children

are not present, but being allowed to stay there during

the day, when children are present.” Id. (footnote

omitted). The Kentucky Supreme Court, however,

applied far too strict of a standard in determining that

KRS 17.546 is not rationally connected to a valid non-

punitive purpose.

As this Court has stated, a statute’s “rational

connection to a non-punitive purpose is a ‘most

significant’ factor in our determination that the

statute’s effects are not punitive.” Smith, 538 U.S. at

102 (citation omitted). However, “[a] statute is not

deemed punitive simply because it lacks a close or

perfect fit with the non-punitive aims it seeks to

advance.” Smith, 538 U.S. at 103. The Kentucky

Supreme Court acknowledged that the residency

restrictions served the non-punitive purpose of public

safety, but concluded the statute was not rationally

connected to that purpose because the statute did not

do everything possible to keep registered sex offenders

from interacting with children. Jd. In order for a civil,

regulatory, statute to pass muster under such an

analysis, the statute would have to be “perfect” in the

19

eyes of the court. This is not the correct standard for

analyzing whether a statute “rationally serves” a valid

non-punitive purpose. App. 17a.

Finally, the Kentucky Supreme Court also relied

on the fact that KRS 17.545 lacks an individual risk

assessment as support for its finding that the statute

was excessive in relation to its nonpunitive purpose.

None of the statutes considered in the cases cited above

provided for an individual risk assessment of the sex

offenders before they would be subject to the restriction,

yet all of the statutes were found not to be excessive in

relation to their nonpunitive purpose. In Smith, 538

U.S. at103, this Court explained that “[tJhe Ex Post

Facto Clause does not preclude a State from making

reasonable categorical judgments that conviction of

specified crimes should entail particular regulatory

consequences.” This is precisely what the Kentucky

General Assembly has done when it enacted

KRS 17.545. There is nothing to support the conclusion

that the legislature’s “categorical judgment that

conviction of specified crimes” requiring registration

as a sex offender should entail a residency restriction

as a consequence is unreasonable. “The State’s

determination to legislate with respect to convicted sex

offenders as a class, rather than require individual

determination of their dangerousness, does not make

the statute a punishment under the Ex Post Facto

Clause.” Smith, 538 U.S. at 104.

The Kentucky Supreme Court also concluded that

the residency restriction in KRS 17.545 was excessive

because the restricted areas could change as protected

sites come and go. App. 18a. This conclusion is nothing

more than speculation on the part of the Kentucky

20

Supreme Court, as the dissenting opinion points out.

App. 30a. There is nothing in the record to suggest

protected sites change with undue frequency. Without

some evidence to demonstrate such “fluidity” places an

undue burden on registered sex offenders, the Kentucky

Supreme Court has merely replaced the Kentucky

General Assembly’s public policy determination with

its own despite the deference courts are supposed to

give to the legislature in making such determinations.

In the final analysis, the Kentucky Supreme Court

has split from the holdings of other courts considering

ex post facto claims to the retroactive application of

sex offender residency restriction statutes. In doing

so, as the dissent states, the Kentucky Supreme Court

has “arrogated to itself the role of legislator and has

substituted its public policy judgment for that of the

General Assembly.” App. 19a. The split of authority

on the question presented in this matter, as well as

the Kentucky Supreme Court’s erroneous application

of this Court’s precedent, should be settled by this

Court.

C. The Question Presented In This Matter Is One

Of National Importance Given The Prevalence

Of Sex Offender Residency Restriction Laws

This Court has recognized that “[t]he risk of

recidivism posed by sex offenders is ‘frightening and

high.” Smith, 538 U.S. at 1038. “When convicted sex

offenders reenter society, they are much more likely

than any other type of offender to be rearrested for a

new rape or sexual assault.” McKune v. Lile, 536 U.S.

24, 33 (2002) (citing U.S. Dept. of Justice, Bureau of

Justice Statistics, Sex Offenses and Offenders 27

21

(1997); U.S. Dept. of Justice, Bureau of Justice

Statistics, Recidivism of Prisoners Released in 1983,

p. 6 (1997)). Other studies of sex offender recidivism

indicate that rapists repeat their offenses at a rate up

to 35 percent; offenders who molest young girls, at a

rate up to 29 percent; and offenders who molest young

boys, at a rate up to 40 percent. L.Song & R. Lieb,

Adult Sex Offender Recidivism: A Review of Studies, 5-—

6 (Washington State Institute for Public Policy, Jan.

1994). Moreover, the recidivism rates do not

appreciably decline over time, and thus, in contrast with

other types of offenders, the tendency to reoffend does

not appear to decline with an offender’s increasing age.

Id.

The management of sex offenders is among the

principal topics facing legislatures across the nation.

See Center for Sex Offender Management, Legislative

Trends in Sex Offender Management, 2 (November

2008). In an attempt to protect the public and limit

the temptation for such recidivism on the part of sex

offenders, residency restriction statutes such as

KRS 17.545 have become a prevalent part of the

management scheme. As of 2008, well over half of the

states, and many local jurisdictions, have enacted some

type of sex offender residency restriction law. Jd. Due

to their prevalence, challenges to the retroactive

application of these statutes under the ex post facto

clause will be frequent and numerous. The division

that has now emerged among the lower courts on this

question leaves state legislatures uncertain as to

whether they may employ this important measure to

protect the public. Review of this issue by this Court is

necessary to settle this uncertainty.

22

CONCLUSION

For the foregoing reasons, the Commonwealth of

Kentucky prays this court to o grant the petition for writ

of certiorari.

JACK CONWAY

ATTORNEY GENERAL OF KENTUCKY

JASON B. MOORE*

MICHAEL L. HARNED

ASSISTANT ATTORNEYS GENERAL

(COUNSEL OF RECORD)

OFFICE OF CRIMINAL APPEALS

OFFICE OF THE ATTORNEY GENERAL

1024 CapriaL CENTER DRIVE

FRANKFORT, KENTUCKY 4060 |

(SO2) 696-5342

*COUNSEL OF RECORD

la

RENDERED OCTOBER 1, 2009

TO BE PUBLISHED

SUPREME COURT OF KENTUCKY

2006-SC—000347-—CL

COMMONWEALTH OF KENTUCKY APPELLANT

ON APPEAL FROM KENTON DISTRICT COURT

HONORABLE MARTIN J. SHEEHAN, JUDGE

NOS. 07-M-00604

MICHAEL BAKER APPELLEE

OPINION OF THE COURT

CERTIFYING THE LAW

I. INTRODUCTION

The question of law to be answered is whether KRS

17.545, which restricts where registered sex offenders

may live, may be app]ied to those who committed their

offenses prior to July 12, 2006, the effective date of the

statute. We hold that it may not. Even though the

General Assembly did not intend the statute to be

punitive, the residency restrictions are so punitive in

effect as to negate any intention to deem them civil.

Therefore, the retroactive application of KRS 17.545 is

an ex post facto punishment, which violates Article I,

Section 10 of the United States Constitution, and

Section 19(1) of the Kentucky Constitution.

2a

i. BACKGROUND

A. Kentucky’s Sex Offender Residency

Restrictions

On July 29, 1994, seven-year-old Megan Kanka

disappeared from her neighborhood in Hamilton —

Township, New Jersey. Soon after, police discovered

that Megan had been raped and murdered by a man

previously convicted of sex offenses. New Jersey

enacted what became known as “Megan’s Law,”

requiring sex offenders to register with the state, and

establishing notification procedures for those living

nearby. The same year, Congress passed the Jacob

Wetterling Crimes Against Children and Sexually

Violent Offenders Registration Act, which conditioned

certain law enforcement funding on states enacting

their own version of Megan’s Law.

Like every other state, Kentucky has enacted a

version of Megan’s Law. The General Assembly first

enacted sex offender registration requirements in 1994,

amending them in 1996 and again in 2000. The 2000

amendments to our Megan’s Law also included

residency restrictions on sex offenders as a condition

of their probation or parole. That restriction, codified

at KRS 17.495, read as follows:

No registrant, as defined in KRS 17.500, who is

placed on probation, parole, or other form of

supervised release, shall reside within one

thousand (1,000) feet of a high school, middle

school, elementary school, preschool, or licensed

cay care facility. The measurement shall be

taken in a straight line from the nearest wall of

3a

the school to the nearest wall of the registrant’s

place of residence.

This Court upheld the registration provisions of

Kentucky’s Megan’s Law in Hyatt v. Commonwealth,

72 S.W.3d 566 (Ky.2002). The next year, the United

States Supreme Court upheld Alaska’s sex offender

registration statute against an ex post facto challenge

in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155

L.Ed.2d 164 (2003).!

1 Doe subsequently challenged the registration

statute in state court on state law grounds, with

the Alaska Supreme Court holding that the

statute cannot be applied retroactively. Doe v.

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

In 2006, the General Assembly enacted House Bill 3,

which amended Kentucky’s residency restrictions to

their current form. 2006 Ky. Acts 182. The current

residency restriction statute, effective July 12, 2006,

codified at KRS 17.545, reads as follows:

(1) No registrant, as defined in KRS 17.500, shall

reside within one thousand (1,000) feet of a

high school, middle school, elementary school,

preschool, publicly owned playground, or

licensed day care facility. The measurement

shall be taken in a straight line from the

nearest property line of the school to the

nearest property line of the registrant’s place

of residence.

(2) For purposes of this section:

4a

(a) The registrant shall have the duty to

ascertain whether any property listed in

subsection (1) of this section is within one

thousand (1,000) feet of the registrant’s

residence; and

(b) If a new facility opens, the registrant shall

be presumed to know and, within ninety (90)

days, shall comply with this section.

(3) Any person who violates subsection (1) of this

section shall be guilty of:

(a) A Class A misdemeanor for a first offense;

and

(b) A Class D felony for the second and each

subsequent offense.

(4) Any registrant residing within one thousand

(1,000) feet of a high school, middle school,

elementary school, preschool, publicly owned

playground, or licensed day care facility on

July 12, 2006, shall move and comply with

this sectior within ninety (90) days of July

12, 2006, an:: thereafter, shall be subject to

the penalties set forth under subsection (3)

of this section.

(5) This section shall not apply to a youthful

offender probated or paroled during his or

her minority or while enrolled in an

elementary or secondary education program.

While the original residency restriction statute

applied only to those on probation, parole, or other form

of sunervised release, the current statute applies to all

registrants regardless of probation or parole status. In

addition, KRS 17.545 adds publicly owned playgrounds

5a

to the list of prohibited areas, and measures the

distance from the property line as opposed to the wall

of a building. The statute also places the burden on the

registrant to determine whether he is in compliance.

Violation of the residency restriction is a Class A

misdemeanor for the first offense, and a Class D felony

for subsequent offenses.

B. Procedural History

On March 31, 1995, Respondent Michael Baker

entered a guilty plea to a charge of third-degree rape

in Kenton Circuit Court. In addition to Respondent's

probated sentence of five years imprisonment, pursuant

to the version of KRS 17.520 in effect at the time,

Respondent was required to register as a sex offender

until March 27, 2010.

Respondent subsequently lived in Reading, Ohio

with his family. However, the City of Reading’s sex

offender residency restrictions forced Respondent to

move back to Kentucky. On February 2, 2007,

Respondent resided in Elsmere, Kentucky and was

arrested and charged with violating KRS 17.545 for

living within 1,000 feet of East Covered Bridge Park,

allegedly a public playground.

According to Respondent, the Division of Probation

and Parole provided him with a link to a website to

determine whether he was in compliance with KRS

17.545. The website did not show East Covered Bridge

Park and the surrounding area to be a prohibited zone.

In Kenton District Court, Respondent challenged

KRS 17.545 on a number of constitutional grounds and

moved to dismiss the charges against him. On April 20,

2007. the Kenton District Court granted Respondent’s

6a

motion and dismissed the charges.

‘The district court concluded that KRS 17.545, as

applied to Respondent, violated the ex post facto clauses

of the United States and Kentucky Constitutions. In

its thorough opinion, the district court found that the

General Assembly had intended KRS 17.545 to be

punitive. The district court also found that, even if

KRS 17.545 were not clearly punitive, its effect was

punitive. Upon finding the statute to be

unconstitutional as applied to Respondent, the district

court declined to address the remaining constitutional

challenges. !

The Commonwealth then moved this Court for

certification of law to determine whether KRS 17.545

is an ex post facto punishment. See Ky. Const. § 115,

CR 76.37(10). We granted certification to resolve this

important constitutional issue.?

2 The Indiana Supreme Court recently held that,

as applied to those who committed their crimes

before the statute was enacted, Indiana’s sex

offender residency restriction statute constitutes

retroactive punishment forbidden by the ex post

facto clause of the state’s constitution. State v.

Pollard, 908 N.E.2d 1145 (Ind.2009).

See also Mikaloff v. Walsh, No. 5:06-CV-96, 2007

WL 2572268 (N.D.Ohio Sept.4, 2007) (holding

that retroactive application of Ohio’s residency

restriction statute violates the federal Ex Post

Facto Clause). The Mikaloff appeal was

dismissed at the State’s request, presumably

because the Ohio Supreme Court subsequently

Ta

prohibited retroactive application of the

residency restriction statute on grounds that the

Ohio legislature had not expressly made the law

retroactive. See Hyle v. Porter, 117 Ohio St.3d

165, 882 N.E.2d 899 (2008).

But see, e.g., Doe v. Miller, 405 F.3d 700 (8th

Cir.2005); State v. Seering, 701 N.W.2d 655 (Iowa

2005); Thompson v. State, 278 Ga. 394, 603

S.E.2d 233 (2004); People v. Leroy, 357 T.App.3d

530, 293 Ill.Dec. 459, 828 N.E.2d 769 (2005); Lee

v. State, 895 So.2d 1038 (Ala.Crim.App.2004) (all

upholding residency restriction statutes against

ex post facto challenges).

Ii. ANALYSIS

The United States Constitution and the Kentucky

Constitution, through their respective ex post facto

clauses,’ prohibit the enactment of any law that imposes

or increases the punishment for criminal acts

committed prior to the law’s enactment. The Ex Post

Facto Clause of the United States Constitution “forbids

... the States to enact any law ‘which imposes a

punishment for an act which was not punishable at

the time it was committed; or imposes additional

punishment to that then prescribed.’ ” Weaver v.

Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17

(1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.)

277, 325-26, 18 L.Ed. 356 (1866)).

5° U.S. Const. Art. 1, § 10; KY. Const. § 19(1).

As a threshold question, for a law to be considered

8a

ex post facto, “it must be retrospective, that is, it must

apply to events occurring before its enactment, and it

must disadvantage the offender affected by it.” Hyatt,

72 S.W.3d at 571 (quoting Weaver, 450 U.S. at 29, 101

S.Ct. 960). There is no question that KRS 17.545 applies

to conduct by Respondent that occurred well before the

law’s enactment. In addition, Respondent is

disadvantaged by the law, as it restricts where he may

live. However; to violate the ex post facto clause, the

statute must also be punitive. Martin v. Chandler, 122

S.W.3d 540, 547 (Ky.2003) (citing California Dept. of

Corr. v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597,

131 L.Ed.2d 588 (1995)).

In determining whether, with regard to those like

Respondent, KRS 17.545 constitutes retroactive

punishment forbidden by the ex post facto clauses, we

are guided by the United States Supreme Court’s two-

part test from Smith v. Doe, 538 U.S. 84, 123 S.Ct.

1140, 155 L.Ed.2d 164 (2003). First, we must determine

whether the legislature intended to establish a civil,

nonpunitive, regulatory scheme, or whether the

legislature intended to impose punishment. Id. at 92,

123 S.Ct. 1140 (citing Kansas v. Hendricks, 521 U.S.

346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)). If

the legislature intended to impose punishment, our

inquiry ends. Smith, 538 U.S. at 92, 123 S.Ct. 1140. If,

however, the legislature intended to enact a civil,

nonpunitive, regulatory scheme, then we must

determine “whether the statutory scheme is so punitive

either in purpose or effect as to negate the State’s

intention to deem it ‘civil.’ ” Jd. (quoting Hendricks,

521 U.S. at 361, 117 S.Ct. 2072) (internal quotations

and citations omitted).

9a

A. Whether the General Assembly Intended KRS

17.545 to be Punitive

We must first determine whether the General

Assembly intended to establish a civil, nonpunitive,

regulatory scheme, or whether the legislature intended

to impose punishment. In determining the legislature’s

intent, this Court “must first ask 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, 123 S.Ct.

1140 (quoting Hudson v. United States, 522 U.S. 93,

99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)). Therefore,

we look to the General Assembly’s expressed and

implied intent. In determining the General Assembly’s

implied intent, we look to, as discussed in Smith,

“{olther formal attributes of a legislative enactment,

such as the manner of its codification or the

enforcement procedures it establishes.” 538 U.S. at 94,

123 S.Ct. 1140.

We begin by examining the General Assembly’s

expressed intent in enacting KRS 17.545. The

legislative history of House Bill 3 is extremely sparse.

The bill was entitled “AN ACT related to sex offenses

and the punishment thereof.” 2006 Ky. Acts 182. This

title suggests that the General Assembly intended KRS

17.545 to be punitive. However, while the title of an

act may be used as an aid in statutory construction,

Wheeler & Clevenger Oil Co., Inc. v. Washburn, 127

S.W.3d 609, 613 (Ky.2004), we do not believe that it

should be determinative in this situation.

We therefore look to the General Assembly’s implied

intent in enacting KRS 17.545. First, we consider the

manner of its codification. Kentucky’s original sex

10a

offender residency restrictions, which were codified at

KRS 17.495, were part of the 2000 amendments to

Kentucky's Megan’s Law.* 2000 Ky. Acts 401. In Hyatt

v. Commonwealth, this Court, addressing the sex

offender registration portions of our Megan’s Law

(including the 2000 amendments), concluded that those

statutes “are directly related to the nonpunitive goals

of protecting the safety of the public.” 72 S.W.3d at

572.

* KRS Chapter 17 is entitled “Public Safety.”

Second, we look at the penalties established by

KRS 17.545. Violation of residency restrictions is a

crime: a Class A misdemeanor for the first offense and

a class D felony for subsequent offenses. KRS 17.545(3).

However, criminal liability attaches only if the offender

fails to move. This is similar to the criminal liability

under KRS 17.510(11) for failing to register as a sex

offender, which we upheld in Hyatt, 72 S.W.3d at 573.

See also Smith, 538 U.S. at 101-02, 123 S.Ct. 1140 (“A

sex offender who fails to comply with the reporting

requirement may be subjected to a criminal prosecution

for that failure, but any prosecution is a proceeding

separate from the individual’s original offense.”).

We conclude that the General Assembly intended

KRS 17.5465 to be a civil, nonpunitive, regulatory

scheme. Therefore, we now consider the second part of

the Smith test.

B. Whether MRS 17.545 is Punitive in Purpose or

Effect

Because we conclude that the General Assembly did

lla

not intend KRS 17.545 to be punitive, we must now

determine “whether the statutory schemie 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, 123

S.Ct. 1140 (quoting Hendricks, 521 U.S. at 361, 117

S.Ct. 2072) (internal quotations and citations omitted).

In making such a determination, courts are guided by

seven factors originally discussed in Kennedy uv.

Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554,

9 L.Ed.2d 644 (1963). Smith, 538 U.S. at 97, 123 S.Ct.

1140.

As in Smith, the five factors relevant here are,

“whether, in its necessary operation, the regulatory

scheme” (1) has been regarded in our history and

traditions as punishment, (2) promotes the traditional

aims of punishment, (3) imposes an affirmative

disability or restraint, (4) has a rational connection to

a nonpunitive purpose, or (5) is excessive with respect

to the nonpunitive purpose. Jd.

1. Historically Regarded as Punishment

We first address whether the scheme established

by KRS 17.545 has been regarded in our history and

traditions as punishment. Traditionally, the colonial

era practice of banishing an offender from the

community has been regarded as a form of punishment.

Smith, 538 U.S. at 98, 123 S.Ct. 1140. Banishment has

been defined as “punishment inflicted upon criminals

by compelling them to quit a city, place, or country, for

a specified period of time, or for life.” United States v.

Ju Toy, 198 U.S. 253, 269-70, 25 S.Ct. 644, 49 L.Ed.

1040 (1905).

As the district court noted, courts reviewing sex

12a

offender residency restrictions have avoided or

sidestepped the issue of whether these restrictions

constitute banishment, and “dissenting judges have

been far more intellectually honest concluding that

residency restrictions constitute banishment.” While

KRS 17.5465 is not identical to traditional banishment,®

it does prevent the registrant from residing in large

areas of the community. It also expels registrants from

their own homes, even if their residency predated the

statute or arrival of the school, daycare, or playground.

Such restrictions strike this Court as decidedly similar

to banishment. We therefore conclude that the

residency restrictions in KRS 17.545 have been

regarded in our history and traditions as punishment.

5 It is, of course, not identical to traditional

banishment, because the registrant may still

return to the house during the day, when

children are present, so long as he does not make

the house his permanent home.

2. Promotion of the Traditional Aims of

Punishment

Next, we address whether KRS 17.545 promotes the

traditional aims of punishment: retribution and

deterrence. Mendoza-Martinez, 372 U.S. at 168, 83

S.Ct. 554. KRS 17.545 promotes general deterrence

through the threat of negative consequences, i.e.

eviction or restriction of where a person may live in

the future. More significant, however, is the statute’s

retributive effect.

KRS 17.545 makes no individualized determination

of the dangerousness of a particular registrant. Even

18a

those registrants whose victims were adults are

prohibited from living near an area where children

gather. 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. In his concurring opinion in Smith, Justice

Souter expressed his unease with the absence of

individualized risk assessment:

Ensuring public safety is, of course, a

fundamental regulatory goal ... and this objective

should be given serious weight in the analyses.

But, at the same time, it would be naive to look

no further, given pervasive attitudes toward sex

offenders.... The fact that the Act uses past crime

as the touchstone, probably sweeping in a

significant number of people who pose no real

threat to the community, serves to feed suspicion

that something more than regulation of safety

is going on; when a legislature uses prior

convictions to impose burdens that outpace the

law’s stated civil aims, there is room for serious

argument that the ulterior purpose is to revisit

past crimes, not prevent future ones.

Smith, 538 U.S. at 108-09, 123 S.Ct. 1140 (Souter, J.,

concurring). By imposing restraints based solely upon

prior offenses, KRS 17.545 promotes and furthers

retribution against sex offenders for their past crimes.

We therefore conclude that KRS 17.545 promotes the

traditional aims of punishment.

l4a

3. Affirmative Disability or Restraint

Next, we address whether KRS 17.545 imposes an

affirmative disability or restraint. We find it difficult

to imagine that being prohibited from residing within

certain areas does not qualify as an affirmative

disability or restraint. In Hyatt, this Court upheld

registration requirements, noting that registration does

“not place limitations on the activities of the offender....”

72 S.W.3d at 572 (citing Collie v. State, 710 So.2d 1000

(Fla.Ct.App.1998)). In Smith, the U.S. Supreme Court

found it significant that “offenders subject to the Alaska

[registration] statute are free to move where they wish

and to live and work as other citizens, with no

supervision.” 538 U.S. at 101, 123 S.Ct. 1140.

By contrast, KRS 17.545 places significant

limitations on where a registrant may live. With this

limitation come significant collateral consequences. As

the district court noted, the restrictions could, for

example, “impact where an offender’s children attend

school, access to public transportation for employment

purposes, access to employment opportunities, access

to drug and alcohol rehabilitation programs and even

access to medical care and residential nursing home

facilities for the aging offender.”

The registrant also faces a constant threat of

eviction “because there is no way for him or her to find

@ permanent home in that there are no guarantees a

school or [other facility] ... will not open within 1,000

feet of any given location.” State v. Pollard, 908 N.E.2d

1145 at 1150 (Ind.2009). As such, a registrant cannot

establish a permanent home. KRS 17.545 clearly

imposes affirmative disabilities and restraints upon

registrants.

15a

4. Rational Connection to a Nonpunitive Purpose |

We next consider whether KRS 17.545 has a rational

connection to a legitimate nonpunitive public purpose.

The Commonwealth argues that residency restrictions

serve the nonpunitive purpose of public safety, which

is undoubtedly a legitimate purpose. The question is

therefore whether KRS 17.545 bears a rational

connection to public safety. |

KRS 17.545 prohibits registrants from residing (i.e.

sleeping at night, when children are not present) within

1,000 feet of areas where children congregate, but it

does not prohibit registrants from spending all day at

a school, daycare center, or playground (when children

are present). It allows registered sex offenders to sit

across the street and watch children, and even to work

near children. KRS 17.545 does not even restrict an

offender from living with the victim, so long as they

live and sleep outside of the prohibited area. All KRS

17.545 prohibits is residing in a home within the

prohibited zone. It does not regulate contact with

children. It is difficult to see how public safety is

enhanced by a registrant not being allowed to sleep

near a school at night, when children are not present,

but being allowed to stay there during the day, when

children are present.®

® These same questions were raised by the

dissent in People v. Leroy, 357 Ill.App.3d 530,

293 Ill.Dec. 459, 828 N.E.2d 769, 793 (2005)

(Kuehn, J., dissenting).

KRS 17.5465 is connected to public safety. However,

the statute’s inherent flaws prevent that connection

from being “rational.” Therefore, we conclude that KRS

16a

17.545 does not have a rational connection to a

nonpunitive purpose.

5. Excessive with Respect to a Nonpunitive

Purpose |

Finally, we address whether KRS 17.5465 is

excessive with respect to the nonpunitive purpose of

public safety. In making that determination, we pote

the lack of individualized risk assessment, combined

with the statute’s fluidity.

First, as noted previously, KRS 17.545 does not

make any type of individualized assessment as to

whether a particular offender is a threat to public

safety. KRS 17.545 crohibits all registrants-regardless

of whether the registrant’s victim was an adult,

teenager, or child, and regardless of whether the crime

was violent, nonviolent, or statutory-from living within

1,000 feet of a school, playground, or daycare facility.

There is absolutely no individual determination.

The Commonwealth correctly points out that a

“statute is not deemed punitive simply because it lacks

a close or perfect fit with the nonpunitive aims it seeks

to advance.” Smith, 538 U.S. at 103, 123 S.Ct. 1140.

In Smith, the U.S. Supreme Court concluded that

individual assessment was not necessary for sex

offender registration requirements, and that “[t]he

State’s determination to legislate with respect to

convicted sex offenders as a class, rather than require

individual determination of their dangerousness, does

not make the statute a punishment under the Ex Post

Facto Clause.” Jd. at 104, 123 S.Ct. 1140.

In Kansas v. Hendricks, the U.S. Supreme Court

upheld involuntary civil commitment of sex offenders

17a

who had completed their period of incarceration. 521

US. 346, 117 S.Ct. 2072, 1388 L.Ed.2d 501. The Kansas

law at issue required individual assessment of offenders

prior to commitment. Id. at 352-53, 117 S.Ct. 2072. The

Smith court noted that, while individual assessment

is not required for sex offender registration, in

Hendricks, “(t]he magnitude of the restraint made

individual assessment appropriate.” Smith, 538 U.S.

at 104,123S.Ct.1140. —

The residency restrictions found in KRS 17.545 are

more onerous than the registration requirements at

issue in Hyatt and Smith, but less onerous than the

involuntary commitment in Hendricks. We believe that

the “magnitude of the restraint” involved in residency

restrictions is sufficient for a lack of individual

assessment to render the statute punitive.

The record before us does not reveal whether or not

Respondent might be a threat to children and to public

safety. But this is exactly why KRS 17.545 is excessive.’

Given the drastic consequences of Kentucky’s residency

restrictions, and the fact that there is no individual

determination of the threat a particular registrant

poses to public safety, we can only conclude that KRS

17.545 is excessive with respect to the nonpunitive

purpose of public safety.

1 See Pollard, 908 N.E.2d at 1153 (“Restricting

the residence of offenders based on conduct that

may have nothing to do with crimes against

children, and without considering whether a

particular offender is a danger to the general

public, the statute exceeds its non-punitive

purposes.”).

18a

Second, as the district court stated, “(t]he

excessiveness of Kentucky’s residency restrictions is

further heightened by their fluidity.” While a sex

offender may be permitted one day to live in a particular

home, he may the next day find himself prohibited by

the opening of a school, daycare facility, or playground.

Perhaps even more troublesome is the fact that a city

could easily designate an area a playground, and the

statute provides no guidance as to what exactly

qualifies as a “playground.”

While such fluidity may provide little problem for

registrants in rural areas of Kentucky, it should be easy

to see why this becomes a serious burden in areas such

as Louisville, Lexington, or Respondent’s home of

Northern Kentucky, with its dozens of tightly clustered

municipalities. Furthermore, the statute places the sole

burden on the registrant in determining whether or

not he is in compliance. KRS 17.545(2). This fluidity

and uncertainty makes KRS 17.545 excessive with

’espect to the purpose of public safety.

Of the five Smith factors, all five weigh in favor of

concluding that KRS 17.545 is punitive in effect.

Therefore, we conclude that KRS 17.545 is so punitive

in effect as to negate the General Assembly’s intention

to deem it civil.

IV. CONCLUSION

Although the General Assembly did not intend KRS

17.545 to be punitive, the residency restrictions are so

punitive in effect as to negate any intention to deem

them civil. Therefore, the statute may not

constitutionally be applied to those like Respondent,

who committed their crimes prior to July 12, 2006, the

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effective date of the statute. To do so violates the ex

post facto clauses of the United States and a

constitutions. The law is so certified.

CUNNINGHAM, NOBLE, SCHROEDER, SCOTT, and

VENTERS, J.J., concur. ABRAMSON, J., dissents by

separate opinion in which MINTON, C.J., joins.

ABRAMSON, JUSTICE, DISSENTING:

Virtually alone among appellate courts to consider

the issue, the majority has invalidated the retroactive

application of legislation forbidding convicted sex

offenders from residing near the schools, day care

centers, and playgrounds where potential child victims

congregate. In so doing the majority has, with respect

to a most difficult social problem, arrogated to itself

the role of legislator and has substituted its public policy

judgment for that of the General Assembly. Because

our democratic system leaves such policy choices to the

legislature, and because I agree with the several other

courts that have held that retroactive sex offender

residency restrictions do not exceed legislative

authority to address vital public safety concerns, I

respectfully dissent.

RELEVANT FACTS

As the majority notes, since 1994, when it adopted

Kentucky’s initial version of Megan’s Law, the General

Assembly has engaged in an evolving effort to address

the profoundly serious and vexing problem of sex

offenders, particularly those who offend against

children. As part of this effort, Megan’s Law, or the

Sex Offender Registration Act, KRS 17.500 to 17.540,

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requires convicted sex offenders and offenders against

minors to register their addresses with the local

probation and parole office. In 2000, the General

Assembly sought further to protect potential child

victims by forbidding registrants during the course of

their probation or parole from residing within 1,000

feet of day care centers and elementary, middle, and

high schools. In 2006, the General Assembly again

expanded its protective efforts by enacting House Bill

3, the legislation at issue here, which, inter alia, extends

the previously enacted residential restrictions. The

amended restrictions, currently codified at KRS 17.545,

apply to all registrants, not just to probationers and

parolees, and add public playgrounds to the list of

protected sites.

Michael Baker, who was convicted in 1994 of third-

degree rape and so came under KRS 17.510’s

registration requirement, was living within 1,000 feet

of a public playground in Elsmere, Kentucky, when he

was notified that he was in violation of the amended

residency restrictions. In February 2007 he was

charged in Kenton District Court with a class A

misdemeanor. Baker challenged KRS 17.545 as

violative of the federal and state Ex Post Facto Clauses,

constitutional provisions that forbid the state from

either punishing or increasing punishment

retroactively. By Order entered April 20, 2007, the

district court agreed with Baker and declared the

statute’s retroactive application invalid. Pursuant to

Section 115 of our Constitution and CR 76.37(10), the

Commonwealth then moved this Court for a

certification of law on the following issue: “Whether

KRS 17.545 was enacted with the intent to punish sex

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offenders or is so consequentially excessive as to negate

any inferred contrary intent to regulate sex offender

recidivism.”

ANALYSIS

Resolution of this case, as the majority notes,

requires consideration of the two-part test the United

States Supreme Court has applied to ex post facto

issues in such cases as Kansas v. Hendricks, 521 U.S.

346, 117 S.Ct. 2072, 138 L.Ed.2d 601 (1997) (upholding

the retroactive application of a Kansas statute

providing for the civil commitment of dangerous sex

offenders) and Smith v. Doe, 638 U.S. 84, 123 S.Ct. 1140,

155 L.Ed.2d 164 (2003) (upholding the retroactive

application of Alaska’s version of the Sex Offender

Registration Act). Under that test, a statute may be

deemed punitive, and thus subject to the Ex Post Facto

Clause’s prohibition against retroactive punishment,

if the legislature evidenced a punitive intent, or, even

where the legislature intended a civil, non-punitive,

regulatory statute, if “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, 123 S.Ct. 1140 (citations and internal quotation

marks omitted). Because courts generally defer to

legislative intent, however, “ only the clearest proof will

suffice to override legislative intent and transform what

has been denominated a civil remedy into a criminal

penalty.” Id. at 92, 123 S.Ct. 1140 (emphasis supplied,

citations and internal quotation marks omitted). The

transformation the majority has worked in this case is

contrary to this deferential standard.

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L The General Assembly Intended KRS 17.545 To

Be Civil Rather Than Punitive.

The majority correctly concedes that the General

Assembly intended KRS 17.545’s residence restrictions

to serve a regulatory, non-punitive, public safety

function. Indeed, the residence restrictions have been

codified in the “Public Safety” Chapter of the Kentucky

Revised Statutes, Chapter 17, immediately following

the Sex Offender Registration Act, an Act held to be

non-punitive and thus not subject to the Ex Post Facto

Clause, in Hyatt v. Commonwealth, 72 S.W.3d 566

(Ky.2002). Nevertheless, the majority concludes that

KRS 17.545’s residence restrictions are so punitive in

effect as to belie the General Assembly’s apparently

regulatory intent and to render KRS 17.645

inapplicable to the many registered sex offenders whose

crimes were committed prior to the statute’s effective

date of July 12, 2006. This ruling obviously deals a

severe blow to the statute’s effectiveness and reflects,

in my judgment, this Court’s failure to give due

deference to the General Assembly’s contrary intent.

Il. The Effect of KRS 17.545 Is Not So Punitive As

To Negate the General Assembly’s Intention.

As the majority correctly notes, in assessing the

punitive effect of legislation intended to be merely

regulatory, the United States Supreme Court has

considered the following factors: “whether, in its

necessary operation, the regulatory scheme: has been

regarded in our history and traditions as a punishment;

imposes an affirmative disability or restraint; promotes

the traditional aims of punishment; has a rational

connection to a nonpunitive purpose; or is excessive

23a

with respect to this purpose.” Smith, 538 U.S. at 97,

123 S.Ct. 1140. Several appellate courts have addressed

the retroactive application of sex offender residency

restrictions in light of these factors, and all but one of

them have held that the restrictions, some far more

severe than Kentucky's 1,000 foot buffer zone, were

primarily regulatory, not punitive, and thus did not

implicate ex post facto limitations. Doe v. Miller, 405

F.3d 700 (8th Cir.2005) (Iowa’s 2,000 foot, buffer zone

regulatory, not punitive); State v. Seering, 701 N.W.2d

655 (Iowa 2005) (upholding 2,000 foot buffer zone);

Salter v. State, 971 So.2d 31 (Ala.Civ.App.2007)

(approving 2,000 foot buffer zone); People v. Leroy, 357

Dl.App.3d 530, 293 Ill.Dec. 459, 828 N.E.2d 769 (2005)

(approving 500 foot buffer zone). See also 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, 2006 WL 906368 (N.D.Ga.2006) (upholding

1,000 foot buffer zone). See generally Marjorie A.

Shields, “Validity of Statutes Imposing Residency

Restrictions on Registered Sex Offenders,” 25 ALR 6th

227 (2007). But see State v. Pollard, 908 N.E.2d 1145

(Ind.2009) (residence restriction deemed punitive in

large part because it applies without a particularized

assessment of dangerousness). As these courts have

noted, residence restrictions are not a traditional form

of punishment and their punitive effects are not undue

in light of their important public safety objective. In

my view, the majority's application of the Supreme

Court’s factors fails at several points to defer, as we

are obliged to do, to permissible legislative judgments,

and amounts thus to judicial legislating under the guise

of constitutional analysis.

24a

A. Residence Restrictions Are Not, and Do Not

Resemble, Traditional Forms of Punishment.

Contrary to the majority's assertion, for example,

KRS 17.545’s residence restriction does not resemble

banishment in either purpose or effect. Banishment,

of course, was a means of removing dangerous

individuals from the community in days when prisons

did not exist or were inadequate to serve that purpose.

KRS 17.545, by contrast, leaves registered sex and child

offenders completely free to live, work, and participate

in the community. It seeks only to lessen the contact,

and hence the opportunity for tragedy, between known

sex offenders and some of the community’s most

vulnerable members. The statute’s potential

requirement that a registered sex offender change

residence is not unlike a zoning change with a like

effect, a far cry from banishment or any other

traditional form of punishment.

In other cases it has been argued that the buffer

zones around protected sites left little or no residential

opportunities available to registrants, and thus did tend

to force registrants outside the community. We have

not been referred to any similar showing in the record

before us, however, and the buffer zones under

Kentucky’s statute are smaller than those at issue in

most of those other cases. Even in those cases, the

courts have held that because the residence restrictions

left registrants free to visit, work, and otherwise

conduct their affairs throughout the community, they

did not resemble banishment in any but a superficial

sense. See, e.g. Doe v. Miller, supra. The record here

suggests only that Baker has been inconvenienced by

being forced to move.* The majority’s claims

25a

notwithstanding, he has not been banished.

®° Baker’s counsel notes that he moved to

Kentucky shortly before the charges were filed

when residency restrictions in Reading, Ohio,

prohibited him from residing in his former

residence there.

B. Although KRS 17.545 Imposes A Burden, That

Burden Is Not Retributive.

Baker has been burdened, however. There is no

doubt but that residence restrictions are a form of

disability. That fact alone, however, does not render

KRS 17.545 punitive. The vast majority of civil

regulatory statutes impose some sort of disability or

restraint. The questions, rather, are whether the

disability here serves punitive ends and whether it is

so excessive with regard to the civil ends it is meant to

serve as not to be rational. The majority maintains that

KRS 17.545 is both punitive and irrational.

It is punitive, the majority contends, because it

applies only to convicted sex offenders. Because the

regulation is based on a prior offense, the majority

concludes that it amounts to additional retribution for

that offense. As the United States Court of Appeals for

the Eighth Circuit in Doe uv. Miller explained, however,

residence restrictions single out prior offenders not

because their past conduct is to be further punished,

but because that conduct is an indicator of future

dangerousness, which the legislature hopes to mitigate.

The regulation looks not to the past crime, but to the

danger of future recidivism.

The majority contends that that forward looking

26a

focus is belied by the fact that the regulation does not

attempt to distinguish the more from the less dangerous

offenders, but the record before us provides no basis

for that distinction. As the United States Supreme

Court noted six years ago in Smith v. Doe, there is data

suggesting that “[t]he risk of recidivism posed by sex

offenders is ‘frightening and high.’ ” 538 'J.S. at 103,

123 S.Ct. 1140. It may well be, of course, that as more

data is gathered important differences among different

types of offenders will emerge, differences which could

have a bearing on legislative choices. That, however,

is precisely the sort of information law makers, not

courts, are designed to assess. There is nothing in the

record before us which would preclude the General

‘Assembly from treating sex offenders as a class, or

would compel it to make the distinctions the majority

favors. Neither Baker nor the majority, in sum, has

shown that KRS 17.545 is a retributive statute, and

most assuredly they have not shown retribution by the

“clearest proof.”

C. KRS 17.545 Reasonably Advances A Vital

Public Safety Aim.

The final questions, then, are whether KRS 17.546

rationally serves a valid non-punitive purpose, and

whether the disabilities it creates are excessive in light

of that purpose. As our sister courts have held,

residence restrictions have the vital, non-punitive

purpose of protecting children from sexual assaults and

other crimes. In Smith, supra, the Supreme Court noted

that a statute’s “rational connection to a nonpunitive

purpose is a ‘most significant’ factor in our

determination that the statute’s effects are not

27a

punitive.” 538 U.S. at 102, 123 S.Ct. 1140 (citation

omitted). The majority acknowledges, as it must, the

General Assembly’s legitimate, regulatory concern with

public safety, but opines that KRS 17.545 is an

irrational means to serve the public safety end because

it does not solve the recidivism problem by eliminating

any and all opportunities for a sex offender to reoffend.

_ The majority has applied far too strict a standard.

The General Assembly is not obligated to fashion

perfect statutes, Cornelison v. Commonwealth, 52

S.W.3d 570 (Ky.2001), nor is it precluded from

addressing part of a problem and leaving other parts

for another day. Holbrook v. Lexmark International

Group, Inc., 65 S.W.3d 908 (Ky.2001). As the United

States Supreme Court stated in Smith, “{a] statute is

not deemed punitive simply because it lacks a close or

perfect fit with the nonpunitive aims it seeks to

advance.” 538 U.S. at 103, 123 S.Ct. 1140. Asin Smith,

the imprecision the majority relies upon “does not

suggest that [KRS 17.545]’s nonpunitive purpose is a

sham or mere pretext.” Jd. at 103, 123 S.Ct. 1140

(citation and internal quotation marks omitted). On

the contrary, while residential restrictions cannot

eliminate all contacts between potential recidivists and

their potential child victims, particularly where

perpetrator and victim are related, they are clearly a

rational means of decreasing those contacts, and thus

the General Assembly could reasonably believe that

they would enhance the overall safety of children. In

denying the reasonableness of that belief, the majority

disregards the General Assembly’s right to address

problems in part, rather than comprehensively, and

improperly substitutes its policy judgment for that of

28a

the General Assembly.

D. The Disability KRS 17.545 Imposes Is Not

Excessive In Light Of Its Vital Purpose.

Under Smith, even if a regulation rationally serves

a non-punitive purpose, it may still be deemed punitive

if the disability or restraint it imposes is excessive with

respect to that purpose. The majority characterizes

KRS 17.546’s disability-its potential requirement that

registrants move away from protected buffer zones-as

“drastic,” and deems that disability excessive for a

couple of reasons. The disability is excessive first,

according to the majority, because it applies to all

registrants without an individualized assessment of

future dangerousness, It. is also excessive, the majority

opines, because it is “fluid,” i.e., because the protected

buffer zones can change as schools, day care centers,

and playgrounds open or relocate.

As the majority acknowledges, the Supreme Court

rejected the first argument in Smith v. Doe. Upholding

the retroactive application of Alaska’s Sex Offender

Registration Act against that very argument, the Court

explained that

[tlhe Ex Post Facto Clause does not preclude a

State from making reasonable categorical

judgments that conviction of specified crimes

should entail particular regulatory

consequences. We have upheld against ex post

facto challenges laws imposing regulatory

burdens on individuals convicted of crimes

without any corresponding risk assessment. See

De Veau, 363 U.S. at 160, 80 S.Ct. 1146 ...

29a

Hawker, 170 U.S. at 197, 18 S.Ct. 573.... As

stated in Hawker: “Doubtless, one who has

violated the criminal law may thereafter reform

and become in fact possessed of a good moral

character. But the legislature has power in cases

of this kind to make a rule of universal

application....” Ibid. The State’s determination

to legislate with respect to convicted sex

offenders as a class, rather. than require

individual determination of their dangerousness,

does not make the statute a punishment under

the Ex Post Facto Clause.

Smith v. Doe, 538 U.S at 103-04, 123 S.Ct. 1140.

The majority seeks to distinguish Smith by noting

that KRS 17.545 imposes a more onerous burden than

- the mandatory registration at issue in that case. It cites

Kansas v. Hendricks, supra, in which the Supreme

Court upheld the retroactive-application of a Kansas

statute providing for the civil commitment of dangerous

sex offenders. That statute passed constitutional

muster, the Court explained, in part because the

statutory scheme included individualized assessments

of dangerousness. The majority asserts that the

residence restrictions at issue here are more like civil

commitment than mandatory registration, and that

without individualized assessments of dangerousness

those restrictions are excessive.

The flaw here is that residence restrictions are even

less like civil commitment than they are like

banishment. Registrants are not being confined against

their wills, they are merely being told not to reside in

certain areas and at worst to move from where they

80a

already reside. The majority characterizes this

imposition as “drastic,” but in fact, having to move,

whether as a result of eviction, foreclosure, eminent

domain, or zoning change, is a common legal

consequence and does not serve to render the -

underlying laws punitive. Far from being involuntarily

confined, Baker has at most been significantly

inconvenienced, and, in light of the fact that convicted

sex offenders are more likely to offend against children

than the general population, our sister courts have

found this inconvenience not such as to remove

residence restrictions such as KRS 17.545 from the

legislature’s authority to “legislate with respect to

convicted sex offenders as a class.” Smith, 538 U.S. at

104, 123 S.Ct. 1140. Doe v. Miller, supra.

The majority also finds the regulatory effect of

KRS 17.545 excessive because the restricted areas can

change as protected sites come and go. We have not

been referred to anything in the record, however,

suggesting that protected sites change with undue

frequency or that Baker has been subjected to such

changes. Absent that record, the majority’s speculation

on this point amounts again to nothing but its

usurpation of the General Assembly’s public policy

prerogative.

CONCLUSION

In sum, I strongly disagree with the majority’s

conclusion that KRS 17.5465 is a punitive statute subject

to ex post facto limitations. The statute does not impose

a traditional punishment; it is forward looking, not

3la

retributive; it rationally serves the vital public safety

function of reducing contacts between potential child

victims and potential sex offense recidivists; and it does

so without imposing disproportionate civil disabilities.

I find the majority’s strained analysis to the contrary

unconvincing, and I am dismayed both by its disregard

of the nearly unanimous precedent upholding the

retroactive application of similar legislation in other

states and by its invasion of the General Assembly’s

sphere of expertise and authority. Accordingly, I

respectfully dissent.

Minton, C.J., joins.

COUNSEL FOR PETITIONER:

Jack Conway

Attorney General

Jason Bradley Moore

Assistant Attorney General

Office of Criminal Appeals

Attorney General’s Office

1024 Capital Center Dr.

Frankfort, KY 40601

Christopher S. Nordloh

28 West 5th St.

Covington, KY 41011

32a

COUNSEL FOR RESPONDENT:

Bradley Wayne Fox

Fox & Scott, PLLC

517 Madison Ave.

Covington, KY 41011