Petition for Writ of Certiorari — Kiansas v. Myers

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Ren ae

FILED

96 823 NOV 21 1996;

No. 9rice OF THE CLERK

\ \

In The

Supreme Court of the United States

October Term, 1996

STATE OF KANSAS,

Petitioner,

vs.

KYM MYERS,

Respondent.

On Petition For Writ Of Certiorari

Tc The Supreme Court Of The State Of Kansas

PETITION FOR WRIT OF CERTIORARI

Carta J. STOVALL

Attorney General of the

State of Kansas

301 S.W. 10th Avenue

Topeka, Kansas 66612

(913) 296-2215

Counsel of Record

STEPHEN R. MCALLISTER

Special Assistant Attorney

General

University of Kansas School

of Law

Green Hall

Lawrence, Kansas 66045

(913) 864-4550

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. After this Court’s decisions in Kennedy v. Men-

doza-Martinez, 372 U.S. 144 (1963), United States v. Halper,

490 U.S. 435 (1989), Austin v. United States, 509 U.S. 602

(1993), Department of Revenue v. Kurth Ranch, 511 U.S. 767

(1994), California Department of Corrections v. Morales, 115

S.Ct. 1597 (1995) and United States v. Ursery, 116 S.Ct.

2135 (1996), what is the test to be used in determining

what constitutes punishment for the purposes of ex post

facto analysis?

2. Does the Kansas Sex Offender Registration Act,

Kan.Stat.Ann 22-4901, et seq. (1995), which allows mem-

bers of the general public to access registrant information

upon request, violate the Ex Post Facto Clause of Art. I,

§ 10 of the United States Constitution?

ii |

TABLE OF CONTENTS

Page )

OPIN MEOW: iis Se 1 |

STATEMENT OF JURISDICTION...............-05. 1

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS TREVOLVED 6 05a Ea Oe ES eee 1

STATEMENT OF THEE CARB ic ccc scicecanssascaques 2

Procedural. History 6s icc ics ces ccivsaivcvessvars 2

The Kansas Sex Offender Registration Act ....... 3

The Kansas Supreme Court Decision............. 5

REASONS FOR GRANTING THE WRIT ........... 9

I. THIS CASE RAISES IMPORTANT, UNRE-

SOLVED QUESTIONS WHICH HAVE

DIVIDED THE LOWER FEDERAL AND STATE

COURTS CONCERNING THE CONSTITU-

TIONALITY OF SEX OFFENDER ACCESS

AND/OR NOTIFICATION SCHEMES......... 9

A. This Court Should Clarify the Test to Be

Utilized In Determining Whether a Regula-

tory Scheme Imposes Punishment in Viola-

tion of Constitutional Ex Post Facto

PrN ss 6k a in.s da vas cee hana ei tees 10 :

B. The Ex Post Facto Issues Raised Are Impor-

taset andl Wecesvinn <2 6 sid iseyseis esses 15 ;

1. All Fifty States, As Weil As the United

States, Have Enacted Sex Offender Reg-

istration Statutes And Most Have Also

Enacted Access And/Or Notification

eer rere ree re Te ne 17

eee

iii

TABLE OF CONTENTS ~- Continued

Page

2. The Lower Federal and State Courts

Already Have Begun To Reach Differ-

ing Conclusions Regarding the Consti-

tutionality Of Such Statutes........... 24

NN 5055-05 wir a's & ele 0 uk db i awe Keen s co 27

APPENDIX A

Opinion of the Kansas Supreme Court, August.

MRSA EES ENS knw ales ves beverwkerCin ck la

APPENDIX B

Kansas Sex Offender Registration Act,

Kan.Stat.Ann. 22-4901, et Oe SEP Nes cai Te cee woul: 48a

APPENDIX C

Excerpt from Lyon County, Kansas District

Court Case No. 90-CR-432, Transcript of Sen-

tencing, pp. 42-45, August 15, 1994.............. 54a

APPENDIX D

Journal Entry, Lyon County, Kansas District

Court Case No. 90-CR-432, R. II, pp. 77-78, Jan-

EO PG GKY xceeWuny se be cred unk ss shb¥ssxeec cv Oe

TABLE OF AUTHORITIES

CASES

Artway v. Attorney General of New Jersey, 81 F.3d

SEBO CG Ce BON kan kk kc be iene ehtess 6, 11, 13

Artway v. Attorney General of New Jersey., 876

Pomp. GG CANE. T90G) osc cer cncsccvcencs 11, 24, 25

Austin v. United States, 509 U.S. 602 (1993)...11, 12, 13

California Department of Corrections v. Morales, 115

De. BOP COU 6008 4460 ees ps hadbbaisissanere 12, 13 i

Department of Revenue v. Kurth Ranch, 511 U.S. 767

2) Se eer pe en Pree Ste he ope eT 11, 12, 13

DeVeau v. Braisted, 363 U.S. 144 (1960) ........... 11, 12

Sik, ey tener kh Ope

Doe v. Pataki, 919 F.Supp. 691 (S.D.N.Y. 1996)........ 11

Doe v. Pataki, 1996 WL 539830 (S.D.N.Y.)......... 24, 25

Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (N.J. 1995)

\itucesbipeaw ee owen Teese 6, 8, 11, 13, 24, 25

Hendricks v. State, No. 95-9075 (to be argued

Docemiier 30, WORE. wos ods ieee sh eeescken 9, 15, 77 i

In Re Reed, 191 Cal.Rptr. 658, 663 P.2d 216 (1983)...11, 24

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

(00 eke deed e dear ae nae eek 6, 10, 11, 13, 14

Louisiana v. Payne, No 93-KA-0495, 633 So.2d 701

Cathe GR i TI iis ah ds was whnns ceavecacnc ass 24

Nitz v. Otte, No. A95-486 CI (JWS) (1996)........... 26

Opinion of the Justices to the Senate, 423 Mass. 1201,

GOR PERI Fae COP 5 66 0055 oo apee rattles 8, 15, BG

People v. Adams, 144 I11.2d 381, 581 N.E.2d 637 (Ill.

SNE oi ns KARR IKAN ED eRe kya FREE Oe Iehe Ie 10, 24 ’

TABLE OF AUTHORITIES - Continued

People v. Starnes, 273 Ill.App.3d 911, 653 N.E.2d 4

ERA a aki oh cei diwetes weitere 8, 24

Roe v. Office of Adult Probation, 1996 WL 494770 (D.

Gai fo ks ho arise iWadals dedi eks EE ee 11, 25

De eee Ee SEER ET CT SEE? OTE a a eee eA a Oty 11, 24, 26

Snyder v. State, No. 95-174, 912 P.2d 1127 (Wyo.

PO iAH ea ARGS ARE OCT Ek Se 7, 24

State v. Costello, 138 N.H. 587, 643 A.2d 531

ERMWNE 88s ipvesigs iede ic ak ceo re ees 8, 10, 24

State v. Hendricks, No. 95-1649 ................ 9,15, 27

State v. Manning, No. C7-94-2242, 532 N.W. 2d 244

D ccapen cs, ath cai PRET OEE Pe peg a ae 8, 11, 24

State v. Myers, Unpublished Opinion No. 67,626

I, NE ocd) vi vedas hoe a ee 2

State v. Myers, 255 Kan. 3, 872 P.2d 236 {3 | ree 2

State v. Myers, 260 Kan. 669, 923 P.2d 1024

3. RES warp ab mt a cent iaM akienian 7 1.3, 24, 2

State v. Sorrell, No. 95-136, 656 So.2d 1045 (La.

UN FO Sab 5 6k hte iw bee ee ee 24

State v. Ward, 123 Wash.2d 488, 869 P2d 1062

1, > PRMBRM Renan gh Ark te ae ear as 8, 11, 24, 25

Stearns v. Gregoire, No. C95-1486 (D. Wash. 1996) ...11, 25

United States v. Halper, 490 U.S. 435 (1989) vee Bp ee ee

United States v. Ursery, 116 S.Ct. 2135 (1996) ...... 6, 13

W.P. v. Poritz, 931 FSupp. 1199 (D.N J. SPPB) so 0's 13, 25

TABLE OF AUTHORITIES - Continued

Page

STATUTES

H.R. 2137, Pub.L. 104-145 (1996) ....... Rees cave 15

Pe Meine IE BH 5 60.0 00s webb de ave kd eke ce 1

Oe Sepia: TG CO ook ss acaden bos cxckaae es 15

Ala.Code § 13A-11-200 et seq. (1994) ................ 17

Ala.Code § 13A-11-201 (1994) ............ccccceeecee 18

AlaKode § TRAdT+208: (1900 oo i.oe ends vansawiicecas 18

Alaska Stat. § 12.63.010 et seq. (Michie 1995) ........ 17

Alaska Stat. § 18.65.087 (Michie 1994)............... 17

Ariz.Rev.Stat.Ann. § 13-3821 et seq. (West 1996)...... 17

Ariz.Rev.Stat.Ann. § 13-3825 (West 1996) ............ 22

Ark.Code Ann. § 12-12-901 et seq. (Michie 1995)..... 17

Ark.Code Ann. § 12-12-909 (Michie 1995) ........... 18

Cal.Penal Code § 290 et seq. (West Supp. 1996)...... 17

Cal.Penal Code § 290.4 (West Supp. 1996)........ 19, 20

Colo.Rev.Stat.Ann. § 18-3-412.5(6.5) (West Supp.

PP as 55-0 0 ber beds + eed AE Ove Lake be 17, 22

Conn.Gen.Stat.Ann. § 54-102r (1996).............. ee |

Del.Code Ann. tit. 11 § 4120 (1995) ................, 17

Del.Code Ann. tit. 11 § 4120(i) (1995) ............... 21

Fla.Stat.Ann. § 775.21 et seq. (West Supp. 1997)...17, 19

Fla.Stat.Ann. § 944.606 (West Supp. 1997) ........ 17, 19

Ga.Code Ann. § 42-9-44.1 (Michie 1994).......... 17, 19

nee eee ab othe de dh

ee at ee Ca ae

Vii

TABLE OF AUTHORITIES - Continued

Page

Ha.Rev.Stat. § 707-743 (Michie Supp. 1996).......... 17

Idaho Code § 18-8301 et seq. (Michie 1996)....... 17, 19

Idaho Code § 9-340(11)(f)(ii) (Michie 1996) .......... 19

730 Ill.Comp.Stat. 150/1 et seq. (West Supp. 1996).... 17

730 Ill.Comp.Stat. 150/9 (West Supp. 1996).......... 22

730 Ill.Comp.Stat. 152/120 (West Supp. 1996)... ..19, 22

730 Ill.Comp.Stat. 152/125 (West Supp. 1996)........ 21

Ind.Code Ann. § 5-2-12-1 et seq. (West Supp. 1996) .... 17

Ind.Code Ann. § 5-2-12-11 (West Supp. 1996)........ 21

sowa Code § GIZA (1998)... ....55 0:00 17

Kan.Stat.Ann. § 21-3502 (1983) ....................... 2

nan. Stat.Ann. § 21-3517 (1963) ...........5...66. 2

Kan.Stat.Ann. § 21-3518 (1983) ....................... 2

Kan.Stat.Ann. § 22-4901 et RO: Cae 6 cdseavces hye

Kan.Stat.Ann. § 22-4901 et WR SEN i dav otet Gos es 1, 3

Kan.Stat.Ann. § 22-4902(a) SWS Cibo 655 6) ean es 3

Kan.Stat.Ann. § 22-4902(b) (1995)..................... 4

Kan.Stat.Ann. § 22-4904 SE Ss as eas Se ec 4

Kan.Stat.Ann. § 22-4906 (1995) ....................... +

Kan.Stat.Ann. § 22-4907 (1995) ....................... 4

Kan.Stat.Ann. § 22-4908 (1995) ....................... t

Kan.Stat.Ann. § 22-4909 FORE vavdeN es dbacc ue: 5, 19

Vili

TABLE OF AUTHORITIES - Continued

Kan.Stat.Ann. § 45-215 et seq. (1995)............4..

Kan.Stat.Ann. § 59-29a01 et seq. (1995) ...........

Ky.Rev.Stat.Ann. § 17.500 et seg. (Michie Supp.

| ee ree eer nr er prer arr ror r TTT Tye rrr

Ky.Rev.Stat.Ann. § 17.510(11) (Michie Supp. 1996) ....

La.Rev.Stat.Ann. § 15:540 et seq. (West Supp. 1996) ....

La.Rev.Stat.Ann. § 15:546 (West Supp. 1996)......

Me.Rev.Stat.Ann. tit. 34-A § 11101 et seg. (West

Saas BOGGS) oe cccsivccceveccasuscsessccensess

Md.Ann.Code art. 27, § 792 (1996) ...............

Mass.Gen.Laws Ann. ch. 6, § 178 et seq. (West

Deer. TSG) osc ccs cccctuinevavnnsdscee tasasues

Mass.Gen.Laws Ann. ch. 6 § 1781 (West Supp.

EES RIE SR eT Fe RE LO MRE it Sp

OE. ccs ee ee

ee ene ia ee lee

Mich.’ tat.Ann. § 4.475(1) et seq. (Law. Co.op.

| | PE errr errr err Torre. ary

Mich.Stat.Ann. § 4.475(10) (Law. Co.op. Supp.

1996)..... RPP Peg Ee re Meng ye ies

Minn.Stat.Ann. § 243.166 (West Supp. 1997)......

Minn.Stat.Ann. § 244.052, subd. 4 (West Supp.

1997)

—s . 7

TABLE OF AUTHORITIES — Continued

Page

Miss.Code Ann. § 45-33-1 et seq. (Law. Co.op.

PU: FRE Kia cer kecadebevatidyh teed nvecdanasaes 18

Miss.Code. Ann. § 45-33-17 et seq. (Law. Co.op.

Re) EPPO ttre Pee Ree ME Pe pire ere 22

Mo.Rev.Stat. § 566.600 et seq. (1996).............04.. 18

Mont.Code Ann § 46-23-501 et seq. (1994) ........... 18

Mont.Code Ann. § 46-23-508(1) (1995)............... 20

Mont.Code Ann. § 46-23-508(2) (1994)............... 22

Neb.Rev.Stat. § 29-4001 et seq. (R.S. Supp. 1996)..... 18

Neb.Rev.Stat. § 29-4009 (R.S. Supp. 1996)............ 19

Nev.Rev.Stat. § 207.151 et seq. (Michie Supp. 1995).... 18

Nev.Rev.Stat. § 207.155 (Michie Supp. 1995) ......... 21

N.C. Gen.Stat. § 14-208.5 et seg. (Michie 1996)....... 18

N.D. Cent.Code § 12.1-32-15 et seq. (Butterworth

RE wS0 7s noe RS eRe cae ad Oe VARS Lownie sees 5 18

N.D.Cent.Code § 12.1-32-15(10) (Butterworth

DO TINE oc cia bb tcds Cigercedvavecepeibedtses 20, 22

N.H.Rev.Stat.Ann. § 106-B:14 (Butterworth Supp.

EN 6d 0s Kandace WOR EKE Dc Sie dw SAS es DERE TSK 20

N.H.Rev.Stat.Ann. § 632-A:11 et seq. (1996).......... 18

N.H.Rev.Stat.Ann. § 632-A:17 (1996)................. 20

N.J.Stat.Ann. § 2-C:7-2 (West Supp. 1996) ........... 18

Wejoent. Asm. © 2-7-7 C988) occ icctictccvcnceeve 23

N.M.Stat.Ann. § 29-11A-1 et seq. (Michie Supp.

| ERR RP tly top eet Mel BORIS TOF 18

TABLE OF AUTHORITIES —- Continued

Page

N.M.Stat.Ann. § 29-11A-6 (Michie Supp. 1996)....... 19

N.Y. Correct.Law § 168 (1996). .........:ceeeeeeeeees 18

N.Y. Correct.Law § 168-1 (1996)..........0cceeeeeees 23

N.Y. Correct.Law § 168-p (1996)............--eeeeees 20

N.Y. Correct.Law § 168-q (1996)............0eeeeeeoe 20

Ohio Rev.Code.Ann. § 2950.01 (Baldwin 1995)....... 18

Ohio Rev.Code.Ann. § 2950.08 (Baldwin 1995)....... 19

Okla.Stat.Ann. tit 57 § 581 et seq. (West Supp.

SOEFD onc ncvccdapudadsvavakineisser bintweakctnabees 18

Okla.Stat.Ann. tit. 57 § 584 E (West Supp. 1997)..... 21

Or.Rev.Stat. § 181.585 (Michie Supp. 1996)........ 18, 20 ©

Pa.Stat.Ann. tit. 42 § 9793 (West Supp. 1996)..... 18, 19

R.I. Gen.Laws § 11-37.1-1 et seq. (Michie Supp.

TODS). cecccvwescceccensvenesseeetseves Sepessysegs 18

R.I. Gen.Laws § 11-37.1-12 (Michie Supp. 1996)...... 23

S.C.Code Ann. § 23-3-400 et seq. (Law. Co.op.

Supp. 1995) .....ccvccccccccvsscsccessvstcessveses 18

S.C.Code Ann. § 23-3-490 (Law. Co.op. Supp.

MOOD oa incvccdocesunsvanrkgussbe pinvdenesworenadenus 19

S.D.Codified Laws Ann. § 22-22-30 et seq. (Michie

Supp. 1996) ......ccecccccccccscccsvevevssescseses 18

S.D. Codified Laws Ann. § 22-22-33 (Michie Supp.

WOOO icc cccebecvescdundstunyVacthebnveesseweneons: 19

Tenn.Code Ann. § 40-39-101 et seq. (Michie Supp.

| PP rererrr Tyr rrr iriver ctr Tite rere. ie 18

we de i, See CR, SLs OFT a

Saget Stns MB te

hs aie Bale Ge dt

hte hee Teil ter ADRS Cir whl ine

TABLE OF AUTHORITIES — Continued

Page

Tenn.Code Ann. § 40-39-106(c) (Michie Supp.

MEE 3 60 ia Cp oues deem vaheseseedesseichiacndsaces on 22

Tex.Rev.Civ.Stat.Ann. art. 6252-13 1 (West Supp.

SRT EWR een pine Wah aed pieeenr aiken dat hana waseees 18

Tex.Rev.Civ.Stat.Ann. art. 6252-13c.1 § 5 (West

DI. BPE) 6 ore 4 one co pandned tan duresnaweysgines yi 20

Utah Code Ann. § 77-27-21.5 (Michie Supp. 1996).... 18

Utah Code Ann. § 77-27-21.5(13) (Michie Supp.

A chien dats cannes daca wed is tanbale ahs Heese 19

Va.Code Ann. § 19.2-390.1 (Michie Supp. 1996)...... 18

Va.Code Ann. § 61-8F-5 (1994) .............. ccc cuee. 21

Wash.Rev.Code Ann. § 9A.44.130 et seg. (West

DIN CUE Sxtve ce cecdnavageucakeeses oeensuvarced 18

Wash.Rev.Code Ann. § 4.24.550 (West Supp. 1997) ..18, 22

W.Va.Code § 61-8F-1 et seq. (Michie Supp. 1996)..... 18

Wis.Stat.Ann. § 175.45 (West Supp. 1995)............ 18

Wis.Stat.Ann. § 175.45(7) (West Supp. 1995) ......... 19

Wyo.Stat. § 7-19-101 et seq. (1995)............. cece 18

WHO.SUME. | Fo1S-TOG (IIIS. oc cise cccecvccnvenseves 19

FUP Seee. & F-EODES CIGION a vce vccvscctcrvcsvesses 19

MISCELLANEOUS

Abril R. Bedarf, Comment, Examining Sex Offender

Community Notification Laws, 83 Calif. L. Rev.

Oe GHONUE Sees he oide Chebeechasheslrotendeeubebaves 16

Ryan A. Boland, Note, Sex Offender Registration

and Community Notification: Protection, Not Pun-

ishment, 30 New. Eng. L. Rev. 183 (1995).......... 16

xii

TABLE OF AUTHORITIES - Continued

Page

Comment, Megan’s Law: The New Jersey Supreme

Court Navigates Unchartered Waters, 26 Seton

Flats L.Weev. FOG CIGPG in ccc cccvecssascovgwecccenes 16

Kenneth Crimaldi, Note, “Megan's Law”: Election-

Year Politics and Constitutional Rights, 27 Rutgers

Cds TOD CIF vcs vn ccstdennsaciesnoyenepaeerens: 17

Michelle Pia Jerusalem, Note, A Framework for

Post-Sentence Sex Offender Legislation: Perspec-

tives on Prevention, Registration, and the Public's

“Right” to Know, 48 Vand. L. Rev. 219 (1995)...... 16

Christine M. Kong, Comment, The Neighbors Are

Watching: Targeting Sexual Predators with Com-

munity Notification Laws, 40 Vill. L. Rev. 1257

CROU vcs Sac deced vencvbsadns babs hewass vide ee eane 16

Jenny A. Montana, Note, An Ineffective Weapon in

the Fight Against Child Sexual Abuse: New Jersey's

Megan's Law, 3 J.L. & Pol’y 569 (1995)......... 16, 17

Note, Prevention versus Punishment: Toward a Prin-

cipled Distinction in the Restraint of Released Sex

Offenders, 109 Harv. L. Rev. 1711 (1996)........... 16

Patricia L. Petrucelli, Comment, Megan’s Law:

Branding the Sex Offender or Benefitting the Com-

munity, 5 Seton Hall Const. L.J. 1127 (1995)....... 16

Simeon Schopf, Megan’s Law: Community Notifica-

tion and the Constitution, 29 Colum. J.L. & Soc.

Poston: 357 CIGSS oii 6 vik ba Kea CO eRe ss 16

Tracy L. Silva, Comment, Dial “1-900-Pervert” and

Other Statutory Measures that Provide Public Noti-

fication of Sex Offenders, 48 S.M.U. L. Rev. 1961

CPR r airy Piers geet ke Fyre ere ST 16

Ve ee Oe ee

OPINIONS BELOW

The August 23, 1996, decision of the Kansas Supreme

Court holding that the public access provision of the

Kansas Sex Offender Registration Act is punishment in

violation of the Ex Post Facto Clause of Art. I, § 10, as

applied to any person whose offense occurred before the

effective date of the Act, is reported at 260 Kan. 669, 923

P.2d 1024 (1996), and is included as Appendix A.

STATEMENT OF JURISDICTION

The Court’s jurisdiction is invoked pursuant to 28

U.S.C. § 1257(a). The Kansas Supreme Court issued its

decision on August 23, 1996. This petition was filed

within ninety (90) days of that date as required by

Supreme Court Rule 13.1.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Ex Post Facto Clause of the United States Consti-

tution applicable to the states provides: “No State shall

. +. pass any... ex post facto Law.” U.S. Const. Art. I

§ 10.

The Kansas Sex Offender Registration Act,

Kan.Stat.Ann. 22-4901 et seq. (1995), is set forth in full in

Appendix B.

STATEMENT OF THE CASE

Procedural History

Respondent was convicted in 1991 of one count of

rape, Kan.Stat.Ann. § 21-3502 (1983), and one count of

sexual battery, Kan.Stat.Ann. § 21-3517 (1983). The Kansas

Court of Appeals reversed and remanded the case due to

trial court error. State v. Myers, Unpublished Opinion No.

67,626 (Kan.App. 1993); aff'd, State v. Myers, 255 Kan. 3,

872 P.2d 236 (1994). Upon remand, the respondent pled

no contest to one count of aggravated sexual battery,

Kan.Stat.Ann. § 21-3518 (1983), on August 15, 1994.

At the time of the August 15 sentencing, respondent

was ordered to register as a sex offender under the Kan-

sas Sex Offender Registration Act, Kan.Stat.Ann.

§ 22-4901 et seq. (1994). Respondent objected to the impo-

sition of the Act, arguing that it was inapplicable to him

because his underlying offense occurred prior to its date

of enactment. Lyon County District Court Case No. 90-

CR-432, Transcript of Sentencing, Appendix C at 54-55a.

His objection was noted for the record and was over-

ruled. Id. at 55a. Respondent was given credit for time

served and was placed on probation.

Approximately four months later, respondent filed a

motion to modify the conditions of his probation, arguing

again that the Act should not be applied retroactively ai d

that ordering him to register constituted additional pun-

ishment in violation of the Ex Post Facto Clause of Article

I, § 10. Respondent’s motion was once again overruled.

Lyon County District Court Case No. 90-CR-432, R. IL, pp.

77-78, Appendix D.

On September 14, 1995, respondent filed an appeal

with the Kansas Court of Appeals alleging that the Kan-

sas Sex Offender Registration Act., Kan.Stat.Ann.

§ 22-4901 et seq. (1994), violated the Ex Post Facto Clause

of Article I, § 10, the Cruel and Unusual Punishments

Clause of the Eighth Amendment and his procedural due

process rights under the Fourteenth Amendment. A

motion to transfer was granted by the Kansas Supreme

Court on November 3, 1995. On August 23, 1996, the

Kansas Supreme Court upheld the Act’s registration

requirement but invalidated on ex post facto grounds its

public access provision as applied to those persons whose

offenses were committed prior to the effective date of the

Act. See App. A. The Court declined to address the

respondent’s cruel and unusual punishment and due pro-

cess claims. Id. at 44-46a.

The Kansas Sex Offender Registration Act

The Kansas Sex Offender Registration Act,

Kan.Stat.Ann. § 22-4901 et seq. (1995), set forth in full in

Appendix B, mandates the registration of any person,

who after the effective date of the Act, is convicted of a

“sexually violent crime.” Kan.Stat.Ann. § 22-4902(a)

(1995). The term “sexually violent crime” encompasses

the following: rape; indecent liberties with a child; aggra-

vated indecent liberties with a child; criminal sodomy;

aggravated criminal sodomy; indecent solicitation of a

child; aggravated indecent solicitation of a child; sexual

exploitation of a child; aggravated sexual battery; any

conviction for a felony offense in effect prior to the effec-

tive date of the Act that is comparable to a sexually

violent crime; any federal or state conviction for a felony

offense that under the laws of the State of Kansas would

be a sexually violent crime; an attempt, conspiracy or

criminal solicitation of a sexualiy violent crime; or any act

which is determined at sentencing beyond a reasonable

doubt to have been “sexually motivated.” Kan.Stat.Ann.

§ 22-4902(b) (1995).

Pursuant to the Act, any person convicted of a sexu-

ally violent crime must register with the local sheriff

within fifteen (15) days of coming into any county where

the offender resides or is temporarily domiciled.

Kan.Stat.Ann. § 22-4904 (1995). Registrants must provide

the following information: name; date of birth; offense or

offenses committed, date of convictions; city or county of

conviction or convictions; a >. otograph; fingerprints; and

social security number. Kay %¢it.Ann. § 22-4907 (1995).

The registration term is for a period of ten years

upon the offender’s first conviction and for life upon a

second or subsequent conviction. Kan.Stat.Ann. § 22-4906

(1995). A registrant may apply to the court for an order

relieving him/her of the duty to register at any time. If,

after a court hearing in which the sex offender is allowed

to present witnesses and other evidence, the court finds

by a preponderance of the evidence that the sex offender

is rehabilitated, he/she is relieved of the duty to register.

Kan.Stat.Ann. § 22-4908 (1995).

Information provided pursuant to the Act is open

public record and is specifically subject to the provisions

of the Kansas Open Records Act, Kan.Stat.Ann. § 45-215

DOTA IIE A OP Che eB Pret AAP OB TMD Se re. ne

et seq. (1995).1 Members of the public can access the

registrant information, if they choose to do so, by

requesting it at their local sheriff’s office. Kan.Stat.Ann

§ 22-4909 (1995). The Act does not require or authorize

any public agency or official to engage in any affirmative

public disclosure of registrant information.

The Kansas Supreme Court Decision

On August 23, 1996, the Kansas Supreme Court held

that the public access provision of the Kansas Sex

Offender Registration Act constitutes punishment in vio-

lation of the Ex Post Facto Clause of Art. I, § 10 of the

United States Constitution. State v. Myers, 260 Kan. 669,

923 P.2d 1024 (1996), App. A. The court ultimately con-

cluded as follows: “To prevent an ex post facto violation,

each sheriff’s office shall adopt a record system that

prevents public access or disclosure of the statements or

any other information required by KSORA of any sex

offender required to register whose offense occurred

before April 14, 1994. Any such statements or other infor-

mation shail neither be open to the public nor subject to

the provisions of the Kansas Open Records Act,

Kan.Stat.Ann. 45-215 et seq. [1995]” Id. at 46-47a.

1 The Kansas Sex Offender Registration Act was initially

enacted in 1993 and was amended to its present form in 1994.

Prior to the amendment, the Act applied only to habitual sex

offenders, i.e. those convicted a second or subsequent time of

certain enumerated sex offenses. Registrant information was

not open to public inspection and was specifically exempt from

the provisions of the Kansas Open Records Act, Kan.Stat.Ann.

45-215 et seq. (1995).

In reaching its conclusion, the court discussed at

length the debate among lower federal and state courts

over what test to apply in determining punishment for

purposes of ex post facto analysis. Id. at 17-26a. The court

observed that this Court has not developed a stan-

dardized test to be employed in considering ex post facto

challenges to sex offender registration/notification stat-

utes. While many courts have utilized the factors set forth

in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169

(1963), the court remarked that several lower federal and

state courts have found the Mendoza-Martinez factors to

be completely inapplicable to ex post facto analysis. See

Artway v. Attorney General of New Jersey, 81 F.3d 1235, 1262

(3rd Cir. 1996); Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 405

(N.J. 1995).2 Id. at 17-20a. Nonetheless, the Kansas

Supreme Court concluded: “Ursery [United States v. Urs-

ery, 116 S.Ct. 2135 (1996)] has endorsed the Mendoza-

Martinez factors for consideration in the punitive/non-

punitive analysis.” Id. at 26a.

Using the Mendoza-Martinez factors, 372 U.S. at

168-169, the Kansas Supreme Court struck down the pub-

lic access provision as applied to those registrants who

committed their offense before the effective date of the

Act. Id. at 46-47a. In so doing, the Court placed particular

emphasis on three Mendoza-Martinez factors: (1) whether

the Act imposed an affirmative disability or restraint; (2)

2 The issue before the Court in Mendoza-Martinez was the

constitutionality of a federal statute that provided for the

automatic relinquishment of citizenship for draft evaders

without due process of law. The Artway, 81 F.3d at 1262, and

Doe, 662 A.2d at 405, courts found the Mendoza-Martinez factors

to be relevant only within that limited context.

NS ees eee

whether the public disclosure provision advanced the

goals of retribution and deterrence; and (3) whether the

act was excessive in relation to its underlying goals. Id. at

37-44a.

The court found that public access to registrant infor-

mation imposes an affirmative disability on the registrant

because “the information could be routinely published in

the newspaper or otherwise voluntarily disseminated by

anyone.” Id. at 37-38a. It commented that such dissemina-

tion would potentially subject the registrant to public

stigma and ostracism and could make it impossible for a

registrant to procure housing and/or employment. Id. at

38a.

The court then found that the public access provision

serves both retributive and deterrent purposes. Id. at 38a.

In the court’s view, “registration has an obvious deterrent

effect” in that registrants may not commit an offense if

they know that their information is on file with the local

sheriff. Id. Further, “the stigma that will accompany pub-

lic exposure of the registered information could be

viewed as a form of retribution.” Id.

The court, however, placed primary emphasis on

whether the statute was excessive in relation to its under-

lying goal. Id. at 39-44a. The court had previously noted,

at pp. 6a, 26-36a that there is a “trend toward limited

public disclosure” in state sex offender registration stat-

utes but that none of the statutes that have survived ex

post facto challenges have provided for unlimited access

to registrant information. Citing Snyder v. State, No.

95-174, 912 P.2d 1127 (Wyo. 1996) (only those authorized

by law to receive criminal history information are

allowed access); State v. Noble, 171 Ariz. 171, 829 P.2d 1217

(Ariz. 1992) (information provided was available to non-

criminal justice agencies for the purpose of evaluating

prospective employees; public officials and volunteers;

governmental licensing agencies; prospective employers

and volunteer youth-service agencies whose activities

involved regular conduct with minors; the department of

economic security; and the superior court); Doe v. Poritz,

142 N.J. 1, 662 A.2d 367 (1995) (tier notification statute

categorized level of notification according to risk of

recidivism); Opinion of the Justices to the Senate, 423 Mass.

1201, 668 N.E.2d 738 (1996) (notification dependent upon

risk of recidivism); State v. Costello, 138 N.H. 587, 643

A.2d 531 (1994) (registrant information was confidential);

State v. Ward, 123 Wash.2d 488, 869 P.2d 1062 (Wash. 1994)

(information released when necessary to protect the pub-

lic); People v. Starnes, 273 Ill.App.3d 911, 653 N.E.2d 4

(1995) (information kept confidential); State v. Manning,

No. C7-94-2242, 543 N.W. 2d 244 (Minn.App. 1995) (infor-

mation limited to law enforcement).

While holding that the legislative aim was not to

punish and that retribution was not an intended purpose

of the Act, the court reasoned that the repercussions were

great enough to be considered punishment. Id. at 43a.

Without addressing the argument that much of the infor-

mation required by the Kansas Sex Offender Registration

Act is public record, the court held that the unrestricted

public access to registrant information was excessive and

went beyond what was necessary to promote the public

safety. Id.

REASONS FOR GRANTING THE WRIT

I. This Case Raises Important, Unresolved Questions

Which Have Divided the Lower Federal and State

Courts Concerning the Constitutionality of Sex

Offender Access And/Or Notification Schemes.

Sex offender notification statutes have become a tool

in the nationwide effort to address effectively the public

safety concerns created by sex offender recidivism. As

states are increasingly exploring this avenue of regula-

tion, they unfortunately lack the necessary guidelines

from this Court by which to adjudge the constitutionality

of their efforts, particularly as applied to sex offenders

whose crimes were committed prior to the enactment of

such legislation. Indeed, the lower federal and state

courts are divided on what constitutional test to apply

and, therefore, on what forms of registration and notifica-

tion, if any, pass constitutional muster as a valid exercise

of the states’ regulatory, non-punitive police powers.

Because of the timeliness and importance of this

topic and the fact that confusion abounds in this area of

the law, this Court should grant plenary review of this

case to establish parameters by which lawmakers can

evaluate the constitutionality of their respective statutes.

At the very least, this Court should hold the petition in

this case for resolution following its decision regarding

the constitutionality of the Kansas Sexually Violent Pred-

ator Act in State v. Hendricks, No. 95-1649, and Hendricks

v. State, No. 95-9075 (to be argued December 10, 1996), the

latter of which involves, among other issues, an ex post

facto challenge to a civil commitment system for certain

sex offenders.

A. This Court Should Clarify the Test To Be Uti-

lized In Determining Whether a Regulatory

Scheme Imposes Punishment In Violation of

Constitutional Ex Post Facto Prohibitions.

Lower federal and state courts are in conflict over

what factors are to be considered in determining whether

an access and/or notification statute constitutes punish-

ment for ex post facto purposes. The courts have agreed

that if the legislature’s subjective intent is to punish the

registrant, ex post facto concerns are implicated. However,

if the legislature’s intent is to regulate in the interest of

public safety, the lower courts have struggied with the

question of whether and, if so, when a law’s effect is

sufficiently punitive in nature so as to negate the regula-

tory intent.?

In considering this issue, the courts have divided on

the test to be employed in determining whether a law’s

punitive effect negates a proper and otherwise regulatory

purpose. The majority of courts have applied some or all

of the factors set forth in Kennedy v. Mendoza-Martinez, 372

U.S. 144, 168-169 (1963): (1) whether the sanction involves

an affirmative disability or restraint; (2) whether it has

been historically regarded as punishment; (3) whether it

comes into play only on a finding of scienter; (4) whether

its operation will promote the traditional aims of punish-

ment, retribution and deterrence; (5) whether the behavior

* At least two courts have ended their inquiry upon finding

that the legislature’s subjective intent was to regulate rather

than punish. See State v. Costello, 138 N.H. 587, 643 A.2d 531, 533

(N.H. 1994); People v. Adams, 144 Ill.2d 381, 581 N.E.2d 637, 641

(Ill. 1991).

to which it applies is already a crime; (6) whether an

alternative purpose to which it may rationally be con-

nected is assignable for it; and (7) whether it appears

excessive in relation to the alternative purpose assigned.

See Doe v. Pataki, 1996 WL 539830 (S.D.N.Y.); Roe v. Office of

Adult Probation, 1996 WL 494770 (D. Conn.); Stearns v.

Gregoire, No. C95-1486 (D. Wash. 1996); Doe v. Pataki, 919

F.Supp. 691, 700 (S.D.N.Y. 1996); Artway v. Attorney General

of New Jersey, 876 F.Supp. 666, 673 (D.N.J. 1995); Rowe v.

Burton, 884 F.Supp. 1372, 1378 (D. Alaska 1994); State v.

Ward, 123 Wash.2d 488, 869 P.2d 1062, 1068 (1994); State v.

Manning, No. C7-94-2242, 532 N.W. 244, 247 (Minn. App.

1995); State v. Noble, 171 Ariz. 171, 829 P.2d 1217, 1221

(1992); In re Reed, 191 Cal.Rptr. 658, 663 P.2d 216, 218

(1983).

Others, however, have questioned the relevance of

Mendoza-Martinez to ex post facto analysis. For example, in

Artway v. Attorney General of New Jersey, 81 F.3d 1235, 1262

(3rd Cir. 1996), the Third Circuit stated: “Nevertheless,

like the New Jersey Supreme Court in Doe,4 142 NJ. at

63-73, we think it wise to heed the Supreme Court's

advice. Mendoza-Martinez is inapplicable outside the con-

text of determining whether a proceeding is sufficiently

criminal in nature to warrant criminal procedural protec-

tions of the Fifth and Sixth Amendments.” Although find-

ing that the public notification issue was not yet ripe for

review, the Third Circuit proposed a three prong test to

be used for ex post facto purposes. Based upon its syn-

thesis of this Court’s opinions in United States v. Halper,

490 U.S. 435 (1989); DeVeau v. Braisted, 363 U.S. 144 (1960);

Austin v. United States, 509 U.S. 602 (1993); Department of

4 Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 405 (N.J. 1995).

Revenue v. Kurth Ranch, 511 U.S. 767 (1994) and California

Department of Corrections v. Morales, 115 $.Ct. 1597 (1995),

the court stated:

A measure must pass a three prong analysis -

(1) actual purpose, (2) objective purpose, and (3)

effect — to constitute non-punishment. We must

look to actual purpose to see “whether the legis-

lative aim was to punish.” See DeVeau, 363 US.

at 160. If the legislature intended Megan’s Law

to be “punishment,” . . . it must fail constitu-

tional scrutiny . . . If the legislature’s actual

purpose does not appear to be to punish, we

next look to its “objective” purpose. This prong,

in turn has three subparts. First, can the law be

explained solely by a remedial purpose? See

Halper, 490 U.S. at 448 . . . Second, even if some

remedial purpose can solely explain the mea-

sure, does a historical analysis show that the

measure has traditionally been regarded as pun-

ishment? See Austin, 113 S.Ct. at 2806... . Third,

if the legislature did not intend a law to be

retributive but did intend it to serve some mix-

ture of deterrent and salutary purposes, we

must determine (1) whether historically the

deterrent purpose of such a law is a necessary

complement to its salutary operation and (2)

whether the measure under consideration oper-

ates in its “usual” manner, consistent with its

historically mixed purposes. See Kurth Ranch,

114 S.Ct. at 1946-[19]48 ... Finally, if the pur-

pose tests are satisfied, we must then turn to the

effects of the measure. If the negative repercus-

sions — regardless of how they are justified — are

great enough, the measure must be considered

punishment. See Morales,115 S.Ct. at 1603. Art-

way, 81 F.3d at 1263.

10 ay re Tilt CS BO ahs Reis deo eins RE Tent ls ee Fae

Sis! Pate tans ate

Rett wd OAL

While sharing the Third Circuit’s belief that Mendoza-

Martinez is inapplicable to ex post facto challenges, the

New Jersey Supreme Court in Doe, 662 A.2d at 405, found

only Halper, 490 U.S. at 435, and Austin, 509 U.S. at 602, to

be relevant:

We note that the dissent continues the misap-

plication of Mendoza-Martinez despite its clear

rejection by the Supreme Court in Halper and

Austin. Those two cases provide the test, used in

this opinion, for determining whether the provi-

sions of a statute impose punishment in viola-

tion of the additional punishment part of the Ex

Post Facto Clause, the multiple punishment part

of the Double Jeopardy Clause, the Cruel and

Unusual Punishment Clause; and the Excessive

Fines and Penalties Clause; and they explicitly

reject the Mendoza-Martinez test for that pur-

pose... 142 NJ. 1, 662 A.2d 367, 405, fn. 17

(Stein, J., dissenting).

In contrast, in W.P. v. Poritz, 931 F.Supp. 1199, 1209

(D.N.J. 1996), the court found neither the test enunciated

in Artway, 81 F.3d at 1235, nor Doe, 662 A.2d at 405, to be

persuasive due to this Court’s holding in United States v.

Ursery, 116 S.Ct. 2135 (1996):

The Supreme Court has now stated that Halper,

Austin, Kurth Ranch, (by implication Morales),

and now Ursery cannot be employed to establish

a “synthesis” that generates a universal frame-

work for defining “punishment” in all cases

. . . What Ursery teaches us, hewever, is that

such considerations may not be transformed

into a rigid series of hurdles which must be

surmounted, one after the other, before the leg-

islation can survive an ex post facto or double

jeopardy challenge. Rather this Court, in an

analysis similar to that in Kennedy v. Mendoza-

Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d

644 (1963) (although the factors considered are

not identical), must weigh these considerations

in a less structured fashion to reach its decision.

The Kansas Supreme Court, likewise, after examining

the foregoing opinions, concluded:

Although often re-labeled, the Mendoza-Martinez

factors continue to reappear in some form in ex

post facto and double jeopardy analysis. Certain

factors are given more weight in the analysis

and others totally disregarded, depending on

the context. We conclude that Ursery has

endorsed the Mendoza-Martinez factors for con-

sideration in the punitive/nonpunitive analysis.

App. A at 26a.

The status quo is one of confusion. The lower courts

need guidance in determining what test is to be applied

in the ex post facto punitive / non-punitive analysis. Even if

this Court is of the opinion that the Kansas Supreme

Court’s resort to the Mendoza-Martinez factors, 372 U.S. at

168-169, is proper, the lower courts require guidance from

this Court concerning the weight to be given to each

component:

Any of these tests must avoid the evident dan-

ger of circularity, defining a penal or regulatory

effect or intent in terms of the very concepts to

be explained. The Mendoza-Martinez factors seek

to overcome that danger by identifying indepen-

dently recognizable criteria for making the criti-

cal distinction . . . Without some indication of

the weight and priority of these factors, how-

ever, that test risks an unmanageable indefinite-

ness. Opinion of the Justices To the Senate, 423

Mass. 1201, 668 N.E.2d 738, 749-750 (1996).

The State of Kansas urges the Court to grant this

petition for a writ of certiorari to clarify the test to be

used in determining what constitutes punishment for

purposes of ex post facto analysis or, alternatively, to hold

this petition for resolution pending this Court's decision

in State v. Hendricks, No. 95-1649, and Hendricks v. State,

No 95-9075 (to be argued Dec. 10, 1996).

B. The Ex Post Facto Issues Raised are Important

and Recurring.

Pursuant to the Violent Crime Control and Law

Enforcement Act of 1994, commonly known as the Jacob

Wetterling Act, 42 U.S.C. § 14071 (1994), states were given

financial incentives to establish registration systems for

those convicted of certain crimes against minors and

sexually violent offenses. The newly enacted federal

Megan’s Law, H.R. 2137, Pub.L. 104-145 (May 17, 1996),

further conditions receipt of federal funds upon the

establishment of state sex offender notification systems.5

In addition, President Clinton has directed the Federal

5 Megan’s Law, H.R. 2137, Pub.L. 104-145 (1996) amended

the Wetterling Act, 42 U.S.C. § 14071(d), to provide for the

release of “relevant information” concerning a person who is

required to register under the Wetterling Act when “necessary

to protect the public.” The United States Department of Justice

has not promulgated rules and regulations concerning Megan’s

Law as of this date.

Bureau of Investigation to develop a nationwide sex

offender registration system, which is expected to be in

place by 1999.

As state legislatures respond to this newly enacted

federal legislation, conscientious state lawmakers must

grapple with the question of what types of disclosure /

access/notification schemes, if any, are constitutionally

permissible. Commentators have generated a number of

articles addressing the constitutionality of notification

laws. See, e.g., Note, Prevention versus Punishment: Toward

a Principled Distinction in the Restraint of Released Sex

Offenders, 109 Harv. L. Rev. 1711 (1996); Ryan A. Boland,

Note, Sex Offender Registration and Community Notification:

Protection, Not Punishment, 30 New. Eng. L. Rev. 183

(1995); Comment, Megan’s Law: The New Jersey Supreme

Court Navigates Unchartered Waters, 26 Seton Hall L. Rev.

764 (1996); Patricia L. Petrucelli, Comment, Megan’s Law:

Branding the Sex Offender or Benefitting the Community, 5

Seton Hall Const. L.J. 1127 (1995); Simeon Schopf,

Megan's Law: Community Notification and the Constitution,

29 Colum. J.L. & Soc. Probs. 117 (1995); Abril R. Bedarf,

Comment, Examining Sex Offender Community Notification

Laws, 83 Calif. L. Rev. 885 (1995); Michelle Pia Jerusalem,

Note, A Framework for Post-Sentence Sex Offender Legisla-

tion: Perspectives on Prevention, Registration, and the Pub-

lic’s “Right” to Know, 48 Vand. L. Rev. 219 (1995);

Christine M. Kong, Comment, The Neighbors are Watching:

Targeting Sexual Predators with Community Notification

Laws, 40 Vill. L. Rev. 1257 (1995); Tracy L. Silva, Com-

ment, Dial “1-900-Pervert” and Other Statutory Measures

that Provide Public Notification of Sex Offenders, 48 S.M.U.

L. Rev. 1961 (1995); Jenny A. Montana, Note, An Ineffective

ee eae eee gE

Weapon in the Fight Against Child Sexual Abuse: New Jer-

sey’s Megan’s Law, 3 J.L. & Pol’y 569 (1995); Kenneth

Crimaldi, Note, “Megan's Law”: Election-Year Politics and

Constitutional Rights, 27 Rutgers L.J. 169 (1995). However,

commentators and courts alike are divided on whether

sex offender registration/access/disclosure provisions

will pass constitutional muster.

1. All Fifty States, As Well As the United

States, Have Enacted Sex Offender Registra-

tion Statutes And Most Have Also Enacted

Access And/Or Notification Statutes.

To date, the United States and all fifty states have

enacted sex offender registration statutes. See Ala.Code

§ 13A-11-200 et seq. (1994); Alaska Stat. §§ 12.63.010 et seq.

(Michie 1995), 18.65.087 (Michie 1994); Ariz.Rev.Stat.Ann.

§ 13-3821 et seq. (West 1996); Ark.Code Ann. § 12-12-901 et

seq. (Michie 1995); Cal.Penal Code § 290 et seq. (West

Supp. 1996); Colo.Rev.Stat.Ann. § 18-3-412.5 (West Supp.

1996); Conn.Gen.Stat.Ann. § 54-102r (1996); Del.Code

Ann. tit. 11 § 4120 (1995); Fla.Stat.Ann. §§ 944.606, 775.21

et seq. (West Supp. 1997); Ga.Code Ann. § 42-9-44.1 (Mic-

hie 1994); Haw.Rev.Stat. § 707-743 (Michie Supp. 1996);

Idaho Code § 18-8301 et seg. (Michie 1996); 730

Ill.Comp.Stat. 150/1 et seq. (West Supp. 1996); Ind.Code

Ann. § 5-2-12-1 et seq. (West Supp. 1996); Iowa Code

§ 692A (1995); Kan.Stat.Ann. § 22-4901 ef seq. (1994);

Ky.Rev.Stat.Ann. § 17.500 et seq. (Michie Supp. 1996);

La.Rev.Stat.Ann. § 15:540 et seq. (West Supp. 1996);

Me.Rev.Stat.Ann. tit. 34-A § 11101 et seq. (West Supp.

1996); Md.Ann.Code art. 27, § 792 (1996); Mass.Gen.Laws

Ann. ch. 6, § 178 et seq. (West Supp. 1996); Mich.Stat.Ann.

§ 4.475(1) et seq. (Law. Co.op. Supp. 1996); Minn.Stat.Ann.

§ 243.166 (West 1997); Miss.Code Ann. § 45-33-1 et seq.

(Law. Co.op. Supp. 1997); Mo.Rev.Stat. § 566.600 et seq.

(1996); Mont.Code Ann § 46-23-501 et seq. (1994);

Neb.Rev.Stat. § 29-4001 et seq. (R.S. Supp. 1996), eff. Janu-

ary 1, 1997; Nev.Rev.Stat. § 207.151 et seq. (Michie Supp.

1995); N.H.Rev.Stat.Ann. § 632-A:11 ef seq. (1996);

N.J.Stat.Ann. § 2c:7-2 (West Supp. 1996); N.M.Stat.Ann.

§ 29-11A-1 et seq. (Michie Supp. 1996); N.Y. Correct.Law

§ 168 (1996); N.C. Gen.Stat. § 14-208.5 et seq. (Michie

1996); N.D. Cent.Code § 12.1-32-15 et seq. (Butterworth

Supp. 1995); Ohio Rev.Code.Ann. § 2950.01 (Baldwin

1995); Okla.Stat.Ann. tit. 57 § 581 et seq. (West Supp.

1997); Or.Rev.Stat. § 181.585 (Michie Supp. 1996);

Pa.Stat.Ann. tit. 42 § 9793 (West Supp. 1996);

R.LGen.Laws § 11.37.1-1 et seq. (Michie Supp. 1996); S.C.

Code Ann. § 23-3-400 et seq. (1994); S.D.Codified Laws

Ann. § 22-22-30 et seq. (Michie Supp. 1996); Tenn.Code

Ann. § 40-101 et seq. (Michie Supp. 1996);

Tex.Rev.Civ.Stat.Ann. art. 6252-13c.1 (West Supp. 1997);

Utah Code Ann. § 77-27-21.5 (Michie Supp. 1996);

Va.Code Ann. § 19.2-390.1 (Michie Supp. 1996);

Wash.Rev.Code Ann. §§ 9A.44.130, 4.24.550 (West Supp.

1997); W.Va.Code § 61-8F-1 et seq. (Michie Supp. 1996);

Wis.Stat.Ann. § 175.45 (West Supp. 1995); Wyo.Stat.

§ 7-19-101 et seq. (1995).

While registration statutes are, for the most part,

similar throughout the states, the states differ greatly on

the extent to which members of the public are allowed

access to registrant information. A number of states allow

registrant information to be distributed to law enforce-

ment officers or agents only. See Ala.Code 8§ 13A-11-201,

13A-11-202 (1994); Ark.Code Ann. § 12-12-909 (Michie

1995); Ky.Rev.Stat.Ann. § 17.510(11) (Michie Supp. 1996);

saat eea te eae Be | ees

Mich.Stat.Ann. § 4.475(10) (Law. Co.op. Supp. 1996);

Neb.Rev.Stat. § 29-4009 (R.S. Supp. 1996); N.M.Stat.Ann.

§ 29-11A-6 (Michie Supp. 1996); Ohio Rev.Code.Ann.

§ 2950.08 (Baldwin 1995); Pa.Stat.Ann. tit. 42 § 9793 (West

Supp. 1996); S.C.Code Ann. § 23-3-490 (1994); S.D. Cod-

ified Laws Ann. § 22-22-33 (Michie Supp. 1996); Utah

Code Ann. § 77-27-21.5(13) (Michie Supp. 1996);

Wis.Stat.Ann. § 175.45(7) (West Supp. 1995); Wyo.Stat.

§§ 7-19-303, 7-19-106 (1995).

The others allow for varying degrees of notification.

Several states, including Kansas, have what has been

described as a “passive” system of notification. Regis-

trant information is either open for public inspection at

the registering agency or is available to the public upon

request. See Cal.Penal Code § 290.4 (West Supp. 1996)

(creates a subdirectory of “sexual habitual violators” who

are a threat to the public safety; photograph, name, phys-

ical description, age and distinctive markings are access-

ible to the public); Fla.Stat.Ann. § 944.606 (West Supp.

1997) (For those determined to be “sexual predators”

under Fla.Stat.Ann. § 775.21 et seq., law enforcement offi-

cials must inform the community and the public of the

predators presence in the community. This section is

applicable to all other sex offenders.); Ga.Code Ann.

§ 42-9-44.1 (Michie 1994) (registrant’s name and address

is open to public inspection at the sheriff’s office; regis-

tration applies only to child sex offenders); Kan.Stat.Ann.

§ 22-4909 (1994) (registrant information is open to public

inspection at the sheriff’s office); Idaho Code §§ 18-8301,

9-340(11)(f)(ii) (Michie 1996) (registrant information is

available upon written request; requesting party must

provide name, date of birth and social security of regis-

trant in order to access the information); 730

Ill.Comp.Stat. 152/120 (West Supp. 1996) (information on

child sex offenders whose offense was committed after

the effective date of the act is open to public inspection);

Mass.Gen.Laws Ann. ch. 6 §§ 1781, 178] (West Supp. 1996)

(information available upon written request); Mont.Code

Ann. § 46-23-508(1) (1995) (the name of a sex offenders is

public record); N.Y.Correct.Law § 168-q (1996) (a sub-

directory of “sexually violent predators” is maintained at

local village, town or city police departments; the

requesting party must “express a purpose in writing” in

order to gain access); N.D.Cent.Code § 12.1-32-15(10)

(“nonregistration information” including the offender's

name, last known address, offense or offenses committed,

date of judgment or order, court imposing the judgment

or order, sentence imposed and disposition is available to

the public); Tex.Rev.Civ.Stat.Ann. art 6252-13c.1 § 5 (West

Supp. 1997) (registrant information is public record; the

registrant’s photograph, social security number, driver’s

license number, numeric street address or telephone

number is confidential).

Three states have established “900” lines that allow

members of the public to access registrant information by

telephone. See Cal.Penal Code § 290.4 (West Supp. 1996)

(caller must furnish first, middle and last name and pro-

vide six identifying characteristics of the registrant, i.e.,

birth date, ethnicity, height, etc., in order to gain access to

the information); N.Y.Correct.Law § 168-p (1996) (part of

a comprehensive package that includes subdirectory

access, as noted above, and tier notification); Or.Rev.Stat.

§ 181.585 (Michie Supp. 1996) (accessible to crime victims

only).

Others allow disclosure of registrant information

only to certain specified groups and law enforcement

agencies. See Del.Code Ann. tit. 11 § 4120(i) (1995)

(employers in “sensitive area(s) dealing with children”

can access registrant information); 730 Il].Comp.Stat.

152/125 (West Supp. 1996) (information concerning child

sex offenders whose offense or adjudication occurred

after the effective date of the act is released to children

and family services, school boards and child care facili-

ties); Ind.Code § 5-2-12-11 (West Supp. 1996) (registrant

information is provided to school corporations, public

schools, state agencies that license individuals who work

with children, the state personnel department, child care

entities licensed by or registered in the state, and to other

agencies that provide services to children (upon request);

registrant’s home address is not available to those entities

falling within the last two categories); Nev.Rev.Stat.

§ 207.155 (Michie Supp. 1995) (registrant data is provided

to the “board of trustees of the county school district in

which the sex offender expects to reside” if the victim

was under eighteen; the board may release the data to

educational personnel if the release is “reasonably neces-

sary” for the protection of the public); Okla.Stat.Ann. tit.

57 § 584 E (West Supp. 1997) (registrant information is

available to public and private elementary schools within

the jurisdiction, child care facilities licensed by the state

within the jurisdiction, any state agency that licenses

individuals to work with children; the State Office of

Personnel Management, and other entities that provide

services to children; registrant’s home address is made

available only to public and private elementary schools);

Va.Code Ann. § 61-8F-5 (Michie Supp. 1996) (notification

is given to local law enforcement, the county superinten-

dent of schools where the registrant is expected to reside,

child protective services and all community organizations

or religious organizations which regularly provide ser-

vices to youths in the county where the registrant is

expected to reside; others may petition the court for

access to registrant information.)

A number allow information to be disseminated at

the discretion of local law enforcement officials when

determined to be in the interest of public safety.

Ariz.Rev.Stat.Ann § 13-3825 (West 1996);

Colo.Rev.Stat.Ann. § 18-3-412.5(6.5) (West Supp. 1996)

(“basic identification information” including photograph

and criminal history information); 730 Il.Comp.Stat.

§§ 150/9, 152/120 (West Supp. 1996) (information may be

released to those “likely to encounter” child sex

offenders); La.Rev.Stat.Ann. § 15:546 (1995); Miss.

45-33-17 (Law. Co.op. Supp. 1996); Mont.Code Ann

§ 46-23-508(2) (1994) (department must petition the court

for an order allowing the release of information);

N.D.Cent.Code § 12.1-32-15(10) (Butterworth Supp. 1995);

Tenn.Code Ann. § 40-39-106(c) (Michie Supp. 1996);

Wash.Rev.Code Ann § 4.24.550 (West Supp. 1997).

Six states have enacted tier notification systems.

Under the tier notification scheme, an offender’s risk of

recidivism is evaluated and categorized, typically as fall-

ing into one of three levels: low, moderate or high. The

level of access and/or notification to the public depends

upon the category into which the offender is placed. See

Conn.Gen.Stat.Ann. § 54-102r (1996); Mass.Gen.Laws Ann.

ch. 6 § 178K (West Supp. 1996) (if the risk is low, the public

can gain access to the information upon request; if the risk

is moderate, law enforcement officials must notify organi-

zations in the community who are likely to encounter the

individual; if the risk is high, law enforcement officials

must notify organizations in the community and members

of the public who are likely to encounter the individual);

Minn.Stat.Ann. § 244.052, subd. 4 (West Supp. 1997), effec-

tive January 1, 1997 (if the risk is low, law enforcement

may disclose registrant information to victims or witnesses

to the offense; if the risk is moderate, information may be

disclosed to agencies or groups likely to encounter the

individual and to establishments and organizations that

serve those likely to be victimized; if the risk is high,

information may be disclosed to members of the commu-

nity who are likely to encounter the individual);

N.J.Stat.Ann. § 2-C:7-7 (1995) (if the risk is low, registrant

information is released only to law enforcement agencies;

if the risk is moderate, law enforcement must notify orga-

nizations in the community; if the risk is high, law enforce-

ment must notify organizations in the community and

individual members of the public who are likely to

encounter the offender); N.Y.Correct.Law § 168-1 (1996) (if

the risk is low, notice shall be given to law enforcement

agencies;* if the risk is moderate, law enforcement officials

may disseminate the registrant’s approximate address

(based on his/her zip code), the crime for which the

registrant was required to register, his/her modus of oper-

ation, the type of victim and any other special conditions

relevant to the registrant; if the risk is high, law enforce-

ment officials may disseminate the registrant’s actual

address, photograph, crime, modus of operation, type of

victim and special conditions); R.I. Gen. Laws § 11-37.1-12

(Michie Supp. 1996) (substantially similar to the New Jer-

sey provision).

2. The Lower Federal and State Courts Already

Have Begun To Reach Differing Conclu-

sions Regarding the Constitutionality Of

Such Statutes.

Successful challenges to the imposition of sex

offender registration statutes have been rare. The lower

federal and state courts have consistently found registra-

tion to be a valid regulatory measure rather than a

method of increased punishment for the registrant. See

State v. Myers, App. A; Doe v. Pataki, 1996 WL 539830

(S.D.N.Y.); Artway v. Attorney General of New Jersey, 876

F.Supp. 666, 688 (D.N.J. 1995); Doe v. Poritz, 142 N.J. 1, 662

A.2d 367, 405 (N.J. 1995); State v. Manning, No.

C7-94-2242, 532 N.W.2d 244, 249 (Minn. App. 1995); People

v. Starnes, 273 Ill.App.3d 911, 653 N.E.2d 4, 7 (Ill. 1995);

Snyder v. State, No. 95-174, 912 P.2d 1127, 1132 (Wyo.

1996); State v. Costello, 138 N.H. 587, 643 A.2d 531, 534

(N.H. 1994); State v. Ward, 123 Wash.2d 488, 869 P.2d 1062,

1074 (Wash. 1994); Rowe v. Burton, 884 F.Supp. 1372, 1385

(D.Alaska 1994); State v. Sorrell, No. 95-136, 656 So.2d

1045, 1048 (La. App. 5 Cir. 1995) (upholding registration

as a condition of probation); State v. Noble, 171 Ariz. 171,

829 P.2d 1217, 1224 (Ariz. 1992); People v. Adams, 144 Ill.2d

381, 581 N.E.2d 637, 644 (Ill. 1991). But see In re Reed, 191

Cal.Rptr. 658, 663 P.2d 216, 222 (Cal. 1983) (registration

requirement for sex offenders convicted under misde-

meanor lewd and lascivious statute constituted cruel and

unusual punishment); Louisiana v. Payne, No. 93-KA-0495,

633 So.2d 701, 703 (La. Ct. App. 1993).

However, there is a considerable divergence of opin-

ion in the lower courts regarding the constitutionality of

the various notification and disclosure provisions. Proac-

tive notification systems (those in which governmental

officials have either a duty or the discretion to notify

specified persons of the registrant's presence in the com-

munity) have faced constitutional challenges with differ-

ing results. See e.g. Roe v. Office of Adult Probation, 1996

WL 494770 (D.Conn.) (Granting preliminary injunction

against the retroactive application of a two tiered system

of notification); Opinion of the Justices to the Senate, 423

Mass. 1201, 668 N.E.2d 738, 753 (Mass. 1996) (proposed

three tiered system of notification was not facially

invalid); Doe v. Pataki, 1996 WL 539830 (S.D.N.Y.) (three

tiered system is punishment in violation of the Ex Post

Facto Clause); Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 405

(N.J. 1995) (three tiered system does not impose punish-

ment); Artway v. Attorney General of New Jersey, 876

F.Supp. 666, 692 (1995) (tiers two and three, which

involve notification to persons other than law enforce-

ment officials, are punishment in violation of the Ex Post

Facto Clause); W.P. v. Poritz, 931 F.Supp. 1199, 1219 (D.N.J.

1996) (three tiered system does not impose punishment

for due process or ex post facto purposes); State v. Ward,

123 Wash.2d 488, 869 P.2d 1062, 1074 (Wash. 1994) (discre-

tionary notification not punishment when scope of dis-

closure is limited to degree of threat posed); Stearns v.

Gregoire, No. C95-1486 (D.Wash. 1996) (denying prelimi-

nary injunction against public notification portions of the

Washington act).

On the opposite end of the spectrum, passive noti-

fication systems (those in which government officials

have no affirmative duty to notify members of the public

but make the information available upon request), such

as the Kansas scheme, have likewise not escaped consti-

tutional scrutiny. See State v. Myers, App. A (public access

to registrant information is punishment in violation of the

Ex Post Facto Clause); Rowe v. Burton, 884 F.Supp. 1372,

1385 (1994) (granting preliminary injunction against

imposition of registration act which allowed disclosure of

registrant’s name, address, birth date, photograph, place

of employment, underlying reason for registration, crime

of conviction, date, place and court of conviction and

length of sentence). But see Nitz v. Otte, No. A95-486 CI

(JWS) (1996), in which the court reassessed its ruling in

Rowe and refused to enjoin application of the Alaska

registration act because the balance of hardships weighed

in favor of the public. The court stated that it “found it

less likely than it did in Rowe that the Registration Act

will be held to violate the Ex Post Facto Clause.” Id. at 17.

Because of the positions already taken by the lower

federal and state courts, it has become increasingly diffi-

cult for state lawmakers to determine what access/noti-

fication/disclosure systems will pass constitutional

muster. Due to the considerable litigation and uncertainty

surrounding this area and the unquestionably important

impact on both the rights of the public and particular

individuals, this Court should grant plenary review of

this case to provide guidance and clarity in this important

and difficult area of law.

CONCLUSION

For the foregoing reasons, the State of Kansas

respectfully requests that this Court grant this petition

for a writ of certiorari and set this case for plenary

review. In the alternative, and at a minimum, this Court

should hold this petition for decision following its deci-

sion on the merits of State v. Hendricks, No. 95-1649, and

Hendricks v. State, No. 95-9075 (to be argued December 10,

1996), which, among other issues, involves an ex post facto

challenge to the Kansas Sexually Violent Predator Act,

Kan.Stat.Ann. § 59-29a01 et seq. (1995).

Respectfully Submitted,

Carta J. STOVALL

Attorney General of the

State of Kansas

301 S.W. 10th Avenue

Topeka, Kansas 66612

(913) 296-2215

Counsel of Record

STEPHEN R. McALLISTER

Special Assistant Attorney

General

University of Kansas School

of Law

Green Hall

Lawrence, Kansas 66045

(913) 864-4550

Attorneys for Petitioner

pe ee ee eee eee

Cel

APPENDIX A

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 74,078

STATE OF KANSAS,

Appellee,

KYM E. MYERS,

Appellant.

Appeal from Lyon district court; PAUL W. CLARK,

assigned judge. Opinion filed August 23, 1996. Affirmed

in part and reversed in part.

The Opinion of the court was delivered by

SIX, J.: This difficult case resolves the claim of defen-

dant Kym Myers that the Kansas Sex Offender Registra-

tion Act (KSORA), K.S.A. 22-4901 et seq., as applied to

him, violates the Ex Post Facto Clause of the United

States Constitution. The determinative issue is whether

KSORA constitutionally may be applied to Myers, whose

offense was committed before April 14, 1994, the date

KSORA took effect.

Myers was convicted in 1991 of one count of sexual

battery, K.S.A. 21-3517 (Ensley 1988) and one count of

rape, K.S.A. 21-3502 (Ensley 1988). The Court of Appeals

reversed his convictions and remanded the case for a new

trial in an unpublished opinion filed September 3, 1993.

We affirmed the Court of Appeals. See State v. Myers, 255

Kan. 3, 872 P.2d 236 (1994). After remand, Myers pleaded

no contest on August 15, 1994, to the aggravated sexual

battery (K.S.A. 21-3518 [Ensley 1988] ) of his 17-year-old

victim, who was assisting her mother in cleaning Myers’

law office. Myers was ordered to be processed under

KSORA as a “sex offender.” A KSORA sex offender is any

person convicted of a named offense on or after July 1,

1993. Aggravated sexual battery is a named offense.

K.S.A. 22-4902(a), (b)(9), and K.S.A. 22-4910. We note that

if Myers’ 1991 convictions had been affirmed, he would

not be subject to KSORA classification as a sex offender.

After his plea in 1994, Myers filed a motion to eliminate

the requirement of KSORA registration. He challenged

the constitutionality of KSORA as ex post facto legislation

violating Art. I, § 10 of the United States Constitution.

My .s’ motion was denied, and he appealed. Our juris-

diction is under K.S.A. 20-3017. (We granted Myers’

motion to transfer to this court.)

We deny Myers’ ex post facto claim as to registration.

The registration requirements of KSORA (K.S.A. 22-4904,

K.S.A. 22-4906, and K.S.A. 22-4907) are remedial and thus

constitutional. As applied to Myers, the public disclosure

provision, K.S.A. 22-4909, imposes punishment in viola-

tion of the Ex Post Facto Clause. Myers is required to

not be open to public inspection and shall not be subject

to the provisions of the Kansas Open Records Act, K.S.A.

45-215 et seq.

Myers asserts, for the first time on appeal, two addi-

tional constitutional issues that were not argued before

the district court, i.e, KSORA (1) constitutes cruel and

unusual punishment and (2) violates due process guaran-

tees. We do not reach these additional issues.

FACTS

Myers was sentenced to 2 to 5 years after his August

1994 no contest plea. He was given credit for time served

in prison and was placed on probation for 1 year. Myers

had no prior convictions. The district court ruled, over

Myers’ objection, that KSORA applied.

Myers raised the ex post facto issue in his pro se brief

supporting his motion to modify probation conditions to

eliminate registration under KSORA:

“The defendant did thereafter register at the

Johnson County Sheriff’s Office. Since that time

the Defendant’s name and address have

appeared both on television and in local news-

papers naming him as a convicted sex offender.

As a result of this the Defendant has been evic-

ted from a rental unit occupied by his family,

and is currently on the verge of being evicted

and forced to leave his current residence.”

The Record Below

At the hearing in the district court, both sides agreed

that Myers’ motion to eliminate the requirement to com-

ply with KSORA presented a question of law and could

be handled by oral argument. The judge responded:

“Well, to me if we can handle it by argument and proffers

through oral statement, unless you all have some evi-

dence that you want to present on the other side... . ”

After Myers’ attorney advanced the ex post facto argu-

ment and presented Myers’ pro se brief on that issue,

Myers requested permission to address the court. The

judge admonished him: “Well, Mr. Myers, I'll allow you

to speak. Reserve it to whatever legal matter in rebuttal

that you might wish to make and that in addition to your

brief.” Despite the admonishment, during his argument,

Myers described his life as a registered sex offender:

“Now, [registration] has caused me more

problems than going to prison. I was evicted

from my mother’s apartment; left me virtually

homeless. I had nowhere to go. I didn’t have

anyone to rent to me. I didn’t know what to do.

I had to go to a halfway house. I’ve been on

television. I’ve been in —- Overland Park pub-

lishes this every Friday. “I can’t live like this

and every morning I get up to look at the paper

— I’m paranoid.

I can’t take this. I’m about ready to crack,

okay? I live with 12 other guys. They are about

ready to kick me out on the street. I have no

money. I don’t know what I’m going to do. At

least in prison I knew I had a place to sleep. I

would rather go back to prison. I can’t do this.”

Myers’ statements, which were not under oath, went

beyond the restrictions that the judge imposed. The State

neither objected to nor disputed the statements. The State

did not request that Myers testify under oath. Both sides

had agreed, and the judge specifically mentioned, that

oral proffers could be made.

Although Myers did not specifically designate his

statements concerning his housing difficulties as a prof-

fer, under the circumstances, we view them as such.

Myers’ statements about the consequences he suffered

because of registration provide a sufficient record to con-

sider the ex post facto issue.

DISCUSSION

The State asserts that KSORA is not an ex post facto

law because it is neither punitive in nature or effect.

According to the State, KSORA is a regulatory statute

designed for the legitimate governmental goals of public

safety and law enforcement assistance. The State claims

that any stigma or ostracism faced by Myers in his per-

sonal or professional life is due not to registration and

disclosure, but to his underlying conviction as a sex

offender.

The Federal Statute

42 U.S.C. § 14071 (1994), the Jacob Wetterling Crimes

Against Children and Sexually Violent Offender Registra-

tion Program Act (the Act), was enacted as part of the

federal Violent Crime Control and Law Enforcement Act

of 1994. The Act encourages states to implement registra-

tion programs for sex offenders against children in order

for the state to be eligible for certain federal funds for

drug control. However, the Act does not require that

states apply their sex-offender registration laws retroac-

tively. The Act was amended May 17, 1996 (to be cited as

Megan’s Law), authorizing disclosure for any purpose

permitted under state law: A law enforcement agency

“shall release relevant information that is necessary to

protect the public concerning a specific person required

to register.” Pub.L. No. 104-145, 110 Stat. 1345 (1996).

Sex Offender Registration Laws in Other States

A review of the laws of other states concerning sex

offenders and their public disclosure provisions, if any, is

helpful in considering the constitutionality of KSORA as

applied to Myers. All 50 states have enacted sex offender

registration laws of varying scope. For a listing of 50

states and their sex offender registration laws see People

v. Ross, No. 681/93, 1996 WL 393282, *3, (N.Y.Sup. July 2,

1996).

Although the laws in a heavy majority of the states

still require that the registry information be kept confi-

dential and made available for use only by law enforce-

ment agencies, some of the more recently enacted

registration laws (such as in lowa, North Carolina, and

Vermont) show a trend toward limited public disclosure.

For example, the lowa and North Carolina statutes allow

disclosure of registry information for a specifically

requested name to the person making the request. lowa

Code Ann. § 692A.13(6) (West 1996 Supp.); N.C. Gen.

Stat. § 14-208.10(a) (1995 Supp.). In Vermont, when the

newly enacted statute becomes effective on September 1,

1996, certain authorized employers can request registry

information when necessary to protect the public. 1996

Vt. Laws P.A. 124, § 1 (to be codified at Vt. Stat. Ann. tit.

13, § 5402[3]).

Many registration laws apply to persons committing

sex offenses before the effective dates of the laws. See,

e.g., Mich. Comp. Laws Ann. § 28.723 (West 1996 Supp.)

(sex offenders convicted after October 1, 1995, or con-

victed on or before that date but on probation or parole

or in jail on that date required to register).

In a few states, such as New Jersey and New York,

the laws provide for community notification concerning

certain registered sex offenders, depending on the risk

level of the offender. See N.J. Stat. Ann. §§ 2C: 7-6, 7-8

(West 1995); N.Y. Correct. Law § 168-1(6) (McKinney 1996

Supp.). The New Jersey provisions apply to persons com-

mitting certain sex offenses whose conduct is charac-

terized by compulsive, repetitive behavior, regardless of

when the offenses were committed. N.J. Stat. Ann. § 2C:

7-2(b)(1) (West 1995). See Opinion of the Justices to the

Senate, No. SJC-07224, 1996 WL 406208 (Mass., July 18,

1996) in which the Supreme Judicial Court of Massa-

chusetts answered questions concerning the constitu-

tionality of pending S.B. 2276 proposing a sex offender

community notification law modeled after New Jersey’s.

In Pennsylvania, the newly enacted community noti-

fication provisions expressly apply only to persons com-

mitting sex offenses after the effective date of the law,

thus avoiding an ex post facto challenge. 42 Pa. Cons.

Stat. Ann. § 9793 (1996 Supp.).

Myers points out that, besides the Kansas statute,

only the Georgia and South Dakota statutes allow unre-

stricted public access to registrant information and South

Dakota does not permit publication of the information.

Ga. Code Ann. §§ 42-9-44.1(e) (1994); S.D. Codified Laws

Ann. § 1-27-1 (1996 Supp.); and S.D. Codified Laws Ann.

§ 22-22-40 (1996 Supp.). Also, Georgia’s statute applies

only to child sex offenders, Ga. Code Ann. § 42-9-44.1(a)

(1994), and South Dakota limits the offender’s duty to

Laws Ann. § 22-22-30 (1996 Supp.). Myers contends he

would not have been required to register under either the

Georgia or South Dakota acts.

We observe that Illinois has enacted a child sex

offender community notification law which became effec-

tive June 1, 1996. Ill. Comp. Stat. Ann. ch. 730, 152/101 et

seq. (Smith-Hurd 1996 Supp.). That law provides for ret-

roactive application, limited community notification, and

public access to registry information on child sex

offenders. Ill. Comp. Stat. Ann. ch. 730, 152/125(c)

(Smith-Hurd 1996 Supp.).

Myers suggests that KSORA’s disclosure provision is

the broadest in the country. The State characterizes

KSORA, which allows public access as opposed to man-

dating dissemination of such information, as being in the

“middle” regarding disclosure. We have found no other

state’s disclosure statute to be broader than KSORA’s.

The Ex Post Facto Clause of the

United States Constitution

Myers contends that KSORA is criminal in nature

because it is punitive in both purpose and effect. Because

KSORA is punitive, Myers reasons, its application to him

is ex post facto and unconstitutional. Myers’ offense

occurred before April 14, 1994, the date KSORA took

effect. See L. 1994, ch. 107, § 10.

The constitutionality of a statute is a question of law;

thus, we exercise an unlimited, de novo standard of

review. See State v. Mertz, 258 Kan. 745, 748, 907 P.2d 847

(1995).

——— a

We are mindful of the frequently stated rules applied

when a statute is questioned as unconstitutional:

“The constitutionality of a statute is pre-

sumed. All doubts must be resolved in favor of

its validity, and before the act may be stricken

down it must clearly appear that the statute

violates the constitution. In determining consti-

tutionality, it is the court’s duty to uphold a

statute under attack rather than defeat it. If

there is any reasonable way to construe the stat-

ute as constitutionally valid, that should be

done. A statute should not be stricken down

unless the infringement of the superior law is

clear beyond substantial doubt.” State v. Bryan,

259 Kan. 143, Syl. ¥ 1,910 P2d 212 (1996).

Our focus is upon the application of KSORA to

Myers’ factual situation. Article I, Section 10, of the

United States Constitution provides: “No State shall

‘++ Pass any... ex post facto Law.”

The Ex Post Facto Clause encompasses:

“Ist. Every law that makes an action done

before the passing of the law, and which was

innocent when done, criminal; and punishes

such action. 2d. Every law that aggravates a

crime, or makes it greater than it was, when

committed. 3d. Every law that changes the pun-

ishment, and inflicts a greater punishment, than

the law annexed to the crime, when committed.

4th. Every law that alters the legal rules of evi-

dence, and receives less, or different, testimony,

than the law required at the time of the commis-

sion of the offence, in order to convict the

offender.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1

L.Ed. 648 (1798).

10a

The Calder categories were rephrased in Beazell v. Ohio,

269 U.S. 167, 169-70, 70 L. Ed. 216, 46 S. Ct. 68 (1925):

“[A]ny statute which punishes as a crime an act

previously committed, which was innocent

when done, which makes more burdensome the

punishment for a crime, after its commission, or

which deprives one charged with crime of any

defense available according to law at the time

when the act was committed, is prohibited as ex

post facto.” (Emphasis added.)

In Collins v. Youngblood, 497 U.S. 37, 50, 111 L. Ed. 2d 30,

110 S. Ct. 2715 (1990), the Court re-adopted the Calder

categories, as rephrased in Beazell. Kring v. Missouri, 107

U.S. 221, 228-29, 27 L. Ed. 506, 2 S. Ct. 443 (1882), was

overruled to the extent Kring had broadened those cate-

gories to include any change which “alters the situation

of a party to his disadvantage.” Our analysis in Myers’

case concerns whether KSORA “makes more burdensome

the punishment for a crime, after its commission.” Ex

post facto laws are particularly objectionable because

they deprive their object of all notice. See, e.g., Miller v.

Florida, 482 U.S. 423, 429-30, 96 L. Ed. 2d 351, 107 S. Ct.

2446 (1987); Weaver v. Graham, 450 U.S. 24, 30, 67 L. Ed. 2d

17, 101 S. Ct. 960 (1981).

“These [including the Ex Post Facto Clause] are tow-

ering constitutional provisions of great importance to

individual dignity, freedom, and liberty.” John Doe v. Por-

itz, 142 N.J. 1, 43, 662 A.2d 367 (1995).

“James Madison emphasized their fundamental

role in our Constitution:

‘Bills of attainder, ex post facto laws, and

laws impairing the obligations of contracts,

—

lla

are contrary to the first principles of the

social compact, and to every principle of

sound legislation. The two former are

expressly prohibited by the declarations

prefixed to some of the State Constitutions,

and all of them are prohibited by the spirit

and scope of these fundamental charters.

Our own experience has taught us neverthe-

less, that additional fences against these

dangers ought not to be omitted. Very prop-

erly therefore have the Convention added

this constitutional bulwark in favor of per-

sonal security and private rights.’

[The Federalist No. 44, at 301 (James

Madison) (Jacob E. Cooke ed., 1961).]” 142

N.J. at 113 (Stein, J., dissenting).

The constitutional prohibition on ex post facto laws

applies only to penal statutes which disadvantage the

offender affected by them. Collins, 497 U.S. at 41. In State

v. Nunn, 244 Kan. 207, 219, 768 P.2d 268 (1989), we

applied the following two-step analysis prescribed in

Graham, 450 U.S. at 29, for determining whether a statute

is an ex post facto law: “ ‘For a criminal or penal law to

be ex post facto, two elements must be present: the law

“must be retrospective, that is, it must apply to events

occurring before its enactment, and it must disadvantage

the offender affected by it.” [Citations omitted.]’ ”

The State concedes that the statute applies retroactively to

Myers. Thus, we concentrate on the penal element of the

ex post facto test as modified by Collins: Does KSORA

impose punishment on Myers?

The Court in De Veau v. Braisted, 363 U.S. 144, 160, 4

L. Ed. 2d 1109, 80 S. Ct. 1146 (1960), held that a statute

12a

barring certain unions on the New York waterfront from

collecting dues if any union officers or agents were ex-

felons was not an ex post facto law, reasoning:

“The question in each case where unpleasant

consequences are brought to bear upon an indi-

vidual for prior conduct, is whether the legisla-

tive aim was to punish that individual for past

activity, or whether the restriction of the indi-

vidual comes about as a relevant incident to a

regulation of a present situation... . ”

If the legislative intent of the statute is to punish, then the

inquiry is ended. See Trop v. Dulles, 356 U.S. 86, 95-96, 2 L.

Ed. 2d 630, 78 S. Ct. 590 (1958) (statute revoking citizen-

ship for military desertion held invalid as cruel and

unusual punishment).

We turn now to an examination of legislative intent.

Legislative Intent

The State concedes that KSORA contains no express

statement of legislative intent or purpose. However, both

parties have cited legislative history. Myers argues that

the legislative history shows punitive intent. The State

counters that the intent is regulatory. We agree with the

State.

The Habitual Sex Offender Registration Act was first

enacted in 1993 as K.S.A. 1993 Supp. 22-4901 et seq. L.

1993, ch. 253, § 17. It was amended in 1994 and renamed

the “Sex Offender Registration Act” (KSORA). L. 1994, ch.

107, § 1. The 1993 version applied to “habitual sex

offenders,” defined at K.S.A.1993 Supp. 22-4902(a) as

those convicted a “second or subsequent time” after the

13a

effective date of the act for a sexually violent crime.

Myers, who had no previous conviction, would not be a

sex offender required to register under the 1993 act.

K.S.A.1993 Supp. 22-4909 provided:

“The statements or any other information

required by this act shall not be open to inspection

by the public and specifically are not subject to

the provisions of the Kansas open records act,

K.S.A. 45-215 et seq., and amendments thereto,

nor may this data be obtained by any person

other than a law enforcement officer or other indi-

vidual as may be authorized specifically by law.”

(Emphasis added.)

KSORA defined “sex offender” as anyone convicted

of a sexually violent crime after the effective date of the

act. K.S.A. 22-4902(a). Although K.S.A. 22-4910 states that

July 1, 1993, is the effective date, L. 1994, ch. 107, § 10

provides: “This act shall take effect and be in force from

and after its publication in the Kansas register.” KSORA

was published in the Kansas Register on April 14, 1994.

The offender is required to register within 15 days of

coming into any county of residence or where tempo-

rarily domiciled more than 15 days. K.S.A. 22-4904. The

offender is required to register for 10 years from the first

conviction or release from confinement, and upon a sec-

ond or subsequent conviction, for life. K.S.A. 22-4906. The

most significant change was the elimination of confidentiality

of the information required with registration.

K.S.A. 22-4909 provides:

“The statements or any other information

required by this act shall be open to inspection

l4a

in the sheriff’s office by the public and speci-

fically are subject to the provisions of the Kan-

sas open records act, K.S.A. 45-215 et seq., and

amendments thereto.”

KSORA was passed in the wake of public outcry

following the tragic July 1993 murder of Stephanie

Schmidt by Donald Ray Gideon, a co-worker who had

prior convictions for rape and aggravated sodomy. See

State v. Gideon, 257 Kan. 591, 595-96, 614, 894 P.2d 850

(1995).

After the murder, Stephanie’s parents helped form an

ad hoc task force which proposed legislation concerning

sex offenders, including H.B. 2661 (which became -

KSORA). Several people from the task force testified

before the House Committee on Judiciary in favor of H.B.

2661, as did the Attorney General. Excerpts from the

Minutes of the House Committee on Judiciary for January

26, 1994 show that the overriding concern behind H.B.

2661 was promotion of public safety with public access to

information on the criminal history of released sex

offenders.

“Our final work product is for Stephanie, but

more importantly our work and the work of

others will hopefully prevent future trage-

dies. ...

“These bills will make more information

available to the public in order to help protect

them from a class of criminal which is very

likely to repeat and repeat its crimes.” Statement

of Representative Gary Haulmark.

15a

“It is up to you to take bold steps forward in the

prevention and awareness required to save

lives: lives like Stephanie’s . . . lives like your

children’s and. . . lives of your families and the

lives of all Kansans.

“Stephanie’s death was the second offense

of her rapist/murderer. Now that she has been

killed, the law says her assailant should register.

Had he been registered in the first place, Step-

hanie might be alive today... .

“The two bills before you will make a difference.

[The second bill, H.B. 2660, would have required

probation officers to notify employers by mail if

they have hired a sexually violent felon. H.B.

2660 was not enacted.] They will allow the liv-

ing to take precautionary steps: to make deci-

sions that would save their lives.” Statement of

Stephanie’s mother, Peggy Schmidt.

“I would encourage you to pass these bills

[H.B. 2660 and 2661] and to step forward boldly

and proudly. Make these protective steps to help

the public through awareness of any sex

offender’s release; protective steps to promote

the rights of employers to know who they are

hiring, and protective steps that would hold the

rights of public safety over and above the rights

of convicted felons, murderers, and rapists.”

Statement of Stephanie’s father, Gene Schmidt.

“Another problem with the current law is

that the registration information is only open to

law enforcement agencies, not the community.

For it to be available to the public is an invasion

of the criminals’ right to privacy. But isn’t it an

l6a

invasion of rights when those criminals turn

around and rape or murder innocent individ-

uals?” Statement of Stephanie’s sister, Jeni

Schmidt.

“The current law requires sex offenders to

studies have shown that more often than not a

sex offender’s ‘first’ offense is actually just the

first time he or she has been caught. Why give

them yet another opportunity to cause more

damage and destroy more lives?

“The registration information needs to be

open to the public, not just to law enforcement

agencies as it is under the current law. The

purpose of the registration is to protect the pub-

lic, but how can we do that if the public doesn’t

have the right to know when a convicted

offender is residing in their community — in fact

may be their next door neighbor, or someone

they work with?” Statement of Robert T. Step-

han, Attorney General.

The Senate Committee on Judiciary also held hear-

ings on H.B. 2661. Statements similar to those made

before the House Committee on Judiciary were presented.

Minutes of Senate Committee on Judiciary, March 21,

1994.

A representative of the American Civil Liberties

Union expressed constitutional concerns in opposing H.B.

2661 and H.B. 2660.

We conclude that the legislative history suggests a

nonpunitive purpose — public safety. However, our anal-

ysis does not end with our “public safety” conclusion.

Even when the legislative intent behind the statute is

17a

nonpunitive, we should ask whether the “statutory

scheme was so punitive either in purpose or effect as to

negate that intention.” United States v. Ward, 448 U.S. 242,

248-49, 65 L. Ed. 2d 742, 100 S. Ct. 2636 (1980). “ ‘[O]nly

the clearest proof could suffice to establish the uncon-

Stitutionality of a statute on such a ground.’ ” 448 U.S. at

249 (quoting Flemming v. Nestor, 363 U.S. 603, 617, 4 L. Ed.

2d 1435, 80 S. Ct. 1367 [1960]). The legislation must be

examined to determine if, in Myers’ situation, KSORA

has a punitive effect sufficient to negate the nonpunitive

purpose.

The Punitive/Nonpunitive Effect Review

In many cases involving ex post facto challenges to

sex offender registration statutes, courts have applied the

factors enumerated in Kennedy v. Mendoza-Martinez, 372

U.S. 144, 168-69, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963), to

determine whether the statute’s effect is punitive. Men-

doza-Martinez held that divesting American citizenship

for draft evasion or military desertion was “punishment”

and the procedural protections of the Fifth and Sixth

Amendments applied. 372 U.S. at 167. The factors are:

“{1] [w]Jhether the sanction involves an

affirmative disability or restraint, [2] whether it

has historically been regarded as punishment,

[3] whether it comes into play only on a finding

of scienter, [4] whether its operation will pro-

mote the traditional aims of punishment - retri-

bution and deterrence, [5] whether the behavior

to which it applies is already a crime, [6]

whether an alternative purpose to which it may

rationally be connected is assignable for it, and

[7] whether it appears excessive in relation to

18a

the alternative purpose assigned. ... ” 372 US.

at 168-69.

See Doe v. Pataki, 919 F.Supp. 691, 700 (S.D.N.Y.1996);

Rowe v. Burton, 884 F.Supp. 1372, 1378 (D.Alaska 1994);

State v. Noble, 171 Ariz. 171, 175, 829 P.2d 1217 (1992);

State v. Manning, 532 N.W.2d 244, 247 (Minn.App.1995);

State v. Ward, 123 Wash.2d 488, 499, 869 P.2d 1062 (1994).

Courts have applied the Mendoza-Martinez factors when

the legislature has not indicated whether the statute is

intended to be punitive or regulatory, Manning, 532

N.W.2d at 247, or when conclusive evidence of legislative

intent is unavailable. Ward, 123 Wash.2d at 500. The Men-

doza-Martinez factors have been applied even when the

statutory design was found to display a purpose to regu-

late and not to punish. Burton, 884 F.Supp. at 1377-78.

Other courts, in considering ex post facto challenges

to sex offender registration statutes, have rejected the

Mendoza-Martinez factor analysis. See Artway v. Attorney

General of State of N.J., 81 F.3d 1235, 1262, reh. denied 83

F.3d 594 (3d Cir.1996):

“Nevertheless, like the New Jersey Supreme

Court in Doe [v. Poritz], 142 N.J. at 63-73, 662

A.2d 367, we think it wise to heed the Supreme

Court’s advice: Mendoza-Martinez is inapplicable

outside the context of determining whether a

proceeding is sufficiently criminal in nature to

warrant criminal procedural protections of the

Fifth and Sixth Amendments. See Austin [v.

United States, 509 U.S. 602, 610 n. 6, 125 L. Ed. 2d

488, 113 S. Ct. 2801, 2806 n. 6 (1993)].”

See also Opinion of the Justices, 1996 WL 406208, *12

(“without some indication of the weight and priority of

19a

these [Mendoza-Martinez] factors, however, that test risks

an unmanageable indefiniteness.”).

The New Jersey Supreme Court in John Doe con-

cluded that the Mendoza-Martinez test was not relevant to

an ex post facto analysis. John Doe observed that the

Mendoza-Martinez Court “nowhere suggest[ed] that con-

sideration of all of the factors together is somehow the

legally required method of resolving the issue” of

whether a statute was penal or regulatory. 142 N_J. at 65.

John Doe, after rejecting the Mendoza-Martinez factors,

describes the method of determining “punitive impact”:

“We do not hold that legislative intent is the

sole determinant of ‘punishment’ despite the

dissent’s claim that we do. Obviously, what the

Legislature does is as important as what it says.

Characterization of a provision or sanction as

punishment depends, as we have noted, not

only on the legislative purpose but on the

implementing provisions. If the implementing

provisions go beyond that regulatory purpose -

if they are ‘excessive’ in fact - and have a puni-

tive impact, punishment results, regardless of

claimed regulatory intent. That is the central

thrust of Austin [v. United States, 509 U.S. 602,

125 L. Ed. 2d 488, 113 S. Ct. 2801 (1993),] and

[United States v.] Halper [,490 U.S. 435, 104 L. Ed.

2d 487, 109 S. Ct. 1892 (1989),] and of our anal-

ysis in this opinion.” 142 N.J. at 75.

In resolving whether a statute has such a punitive

impact as to make it punishment, the Artway court speak-

ing through Judge Becker, in a scholarly analysis, synthe-

sized several recent United States Supreme Court cases

(California Dept. of Corrections v. Morales, 514 US. wast

20a

L. Ed. 2d 588, 115 S. Ct. 1597 [1995]; Montana Dept. of Rev.

v. Kurth Ranch, 511 U.S. __, 128 L. Ed. 2d 767, 114 S. Ct.

1937 [1994]; Austin v. United States, 509 U.S. 602, 125 L.

Ed. 2d 4881, 113 S. Ct. 2801 [1993]; and Halper, 490 U.S.

435). 83 F.3d at 1254-61. The Third Circuit in Artway

dev: ‘oped a three-prong test for declaring when a legisla-

tive act constitutes “punishment” for ex post facto and

double jeopardy purposes: whether (1) the actual purpose

of the law is punitive or remedial, (2) the objective pur-

pose is punitive or remedial, and (3) its effect is suffi-

ciently punitive. The objective purpose prong, in turn,

had three subparts. Applying this three-prong test to

New Jersey’s sex offender registration law, known as

Megan’s Law, Artway determined that the registration

requirements of the law did not violate the Ex Post Facto

Clause or the Double Jeopardy Clause. 81 F.3d at 1264-67.

The claims concerning the notification portion of the law

were not 7ipe for review because Artway had left New

Jersey ard had yet not been classified as an offender

subject to notification. 81 F.3d at 1246-53.

W.P. v. Poritz, No. CIV. A. 96-97, 1996 WL 374036

(D.N.J. July 1, 1996), addressed ex post facto and double

jeopardy claims concerning the notification provisions in

Megan's Law. W.P. arose from a class action filed by New

Jersey sex offender registrants who had been notified of

their classifications as Tier II (moderate risk) or III (high

risk) offenders for sex offenses committed before the

effective date of the law. Upholding the notification pro-

visions against those claims, W.P. followed the outlines of

the test set forth in Artway, but noted that Linited States v.

livery, .... US. ts Ba M16 8 Ce 20

(1996), decided after Artway, “alters the analysis to be

a ee ee

Pe a eee Tae ees

2la

employed in the case at bar.” W.P.,, 1996 WL 374036, 6.

The W.P. court said:

“Ursery expressly rejects the philosophical foun-

dation of Artway: that a universal rule for the

definition of ‘punishment’ can and should be

derived through a ‘synthesis’ achieved from

analyzing the Supreme Court’s recent decisions

in Halper, Austin, Kurth Ranch and Morales... .

“The Supreme Court has now stated that

Halper, Austin, Kurth Ranch, (by implication

Morales), and now Ursery cannot be employed to

establish a ‘synthesis’ that generates a universal

analytical framework for defining ‘punishment’ in

all cases.” 1996 WL 374036, 7.

However, W.P. observed that certain considerations com-

mon to those cases should be employed in deciding

whether the notification Provisions imposed “punish-

ment”;

“These common considerations are the

expressed intent of the legislature as reflected in

the legislation itself and the legislative history;

the ‘purpose’ of that legislation, viewed objec-

tively, particularly if that demonstrates a poten-

tial for a more punitive objective; a balancing of

remedial and punitive goals; an analysis of how

such laws have been considered historically, if

there is any clear historical analogue; and a

review of the ‘effect’ of such legislation, if that

effect is extreme or severe.” 1996 WL 374036, 7.

W.P. noted further:

“What Ursery teaches us, however, is that such

considerations may not be transformed into a

22a

rigid series of hurdles which must be sur-

mounted, one after the other, before the legisla-

tion can survive an ex post facto or double

jeopardy challenge. Rather this Court, in an

analysis similar to that in Kennedy v. Mendoza-

Martinez, 372 U.S. 144 (1963) (although the fac-

tors considered are not identical), must weigh

these considerations in a less structured fashion

to reach its decision.” 1996 WL 374036, 7.

Because of the importance of Halper and Austin in the

punitive/nonpunitive analysis of sex offender registra-

tion and disclosure statutes advanced in John Doe and

Artway, we turn to a review of Ursery. Ursery considered

the Mendoza-Martinez factors in its double jeopardy anal-

ysis. In Ursery, the Court considered whether civil forfei-

ture proceedings under 21 U.S.C. § 881(a)(6) and (7)

(1994) violated the Double Jeopardy Clause. The Court

reviewed two cases. In the Sixth Circuit case, United

States v. Ursery, 59 F.3d 568 (6th Cir. 1995), the govern-

ment initiated civil forfeiture proceedings against Urs-

ery’s house, alleging it had been used to facilitate illegal

drug transactions. Ursery was later convicted of a drug

charge. In U.S. v. $405,089.23 U.S. Currency, 33 F.3d 1210

(9th Cir. 1994), civil in rem proceedings were filed against

certain items, including currency allegedly involved in a

money laundering scheme and felonious drug transac-

tions. The owners were later convicted on drug and

money laundering charges, and forfeiture was granted

against their property. The Sixth Circuit reversed Ursery’s

conviction, and the Ninth Circuit in $405,089.23 reversed

the forfeiture judgment, both courts relying on Halper and

Austin. In a split decision (Justice Stevens dissenting;

Justices Kennedy, Scalia, and Thomas concurring), the

23a

Supreme Court reversed, distinguishing Halper, Austin,

and Kurth Ranch and relying instead upon United States v.

One Assortment of 89 Firearms, 465 U.S. 354, 79 L. Ed. 2d

361, 104 S. Ct. 1099 (1984).

The Court observed that Halper considered whether a

civil penalty constituted “punishment” for double jeop-

ardy purposes. In Halper, a fine of $130,000 was suffi-

ciently disproportionate to the government’s damages

and expenses, estimated at $585, as to constitute a second

punishment in violation of double jeopardy. 490 US. at

437, 452. The Ursery Court noted the historical distinction

between civil forfeiture and civil penalties and that the

balancing test used in Halper (value of the fine versus

amount of the government’s damages) had never been

applied in forfeiture cases. 116 S. Ct. at 2145.

The Ursery Court also distinguished Austin: “The

holding of Austin was limited to the Excessive Fines

Clause of the Eighth Amendment, and we decline to

import the analysis of Austin into our double jeopardy

jurisprudence.” 116 S. Ct. at 2147. Kurth Ranch was distin-

guished because it dealt “with a tax proceeding under the

Double Jeopardy Clause.” 116 S. Ct. at 2147.

After distinguishing Halper, Austin and Kurth Ranch,

the Ursery Court stated: “[T]his Court consistently has

found civil forfeitures not to constitute punishment under

the Double Jeopardy Clause.” 116 S. Ct. at 2147. The

Court then applied the two-part test used in 89 Firearms

(taken from Ward, 448 US. at 248-49) to determine

whether a forfeiture proceeding is civil or criminal in

nature:

24a

“First, we ask whether Congress intended pro-

ceedings under 21 U.S.C. § 881, and 18 U.S.C.

§ 981, to be criminal or civil. Second, we turn to

consider whether the proceedings are so puni-

tive in fact as to ‘persuade us that the forfeiture

proceeding|[s] may not legitimately be viewed as

civil in nature,’ despite Congress’ intent. 89 Fire-

arms, 465 U.S. at 366.” 116 S. Ct. at 2147.

Finding intent that the proceedings are civil, the Court in

Ursery moved to the second stage and found little evi-

dence “suggesting that forfeiture proceedings . . . are so

punitive in form and effect as to render them criminal

despite Congress’ intent to the contrary.” 116 S. Ct. at

2148.

Ursery then identified the nonpunitive goals of the

forfeiture provisions (encouraging property owners not

to permit their property to be used for illegal purposes;

ensuring people do not profit from illegal acts). 116 S. Ct.

at 2148-49. The Court ended its analysis with the follow-

ing:

“Other considerations that we have found

relevant to the question whether a proceeding is

criminal also tend to support a conclusion that

§ 981(a)(1)(A) and §§ 881(a)(6) and (a)(7) are

civil proceedings. See Ward, [448 U.S. at]

247-248, n. 7, 249 (listing relevant factors and

noting that they are neither exhaustive nor dis-

positive).” 116 S. Ct. at 2149.

The cite to Ward refers specifically to the Mendoza-Mar-

tinez factors. The Court then discussed four of those

factors, finding that (1) in rem civil forfeiture has histori-

cally not been regarded as punishment; (2) the govern-

ment need not demonstrate scienter to establish

25a

forfeiture; (3) though forfeiture may serve the purpose of

deterrence, that purpose may serve civil as well as crimi-

nal goals; and (4) though the statutes are tied to criminal

activity, this was not sufficient to render the statutes

punitive. 116 S. Ct. at 2149. Ursery blunted deterrence as a

factor pointing toward penal effect, at least in the forfei-

ture context.

Because Ursery was decided on the grounds that civil

in rem forfeiture was determined not to impose punish-

ment for double jeopardy purposes, the majority’s use of

the two-part test from 89 Firearms (including the Mendoza-

Martinez factors) for determining whether a proceeding is

criminal in nature implies that the Mendoza-Martinez fac-

tors should be considered as part of the determination of

whether punishment has been imposed. Ursery leaves

open the question of whether that same test should be

used as part of ex post facto analysis.

The majority in Ursery labeled the sweeping language

in Halper to the effect that “[a] civil sanction that cannot

fairly be said solely to serve a remedial purpose, but

rather can only be explained as also serving either

retributive or deterrent Purposes, is punishment” as dic-

tum. Halper was confined to the narrow context of its own

facts: a civil penalty vastly disproportionate to the gov-

ernments damages and expenses. 116 S. Ct. at 2145, n. 2.

The W.P. court read Ursery as changing the approach

the Third Circuit used in Artway to a less rigid one. The

“considerations” used in W.P. to determine if the Megan’s

Law notification provision imposed punishment, 1996

WL 374036, 7, are similar to the two-part test in Ward, 89

Firearms, and Ursery, with a few of the Mendoza-Martinez

26a

factors added. Although often re-labeled, the Mendoza-

Martinez factors continue to reappear in some form in ex

post facto and double jeopardy analysis. Certain factors

are given more weight in the analysis and others totally

disregarded, depending on the context. We conclude that

Ursery has endorsed the Mendoza-Martinez factors for con-

sideration in the punitive/nonpunitive effect analysis.

Ex Post Facto Challenges in Other Jurisdictions

Sex offender registration and disclosure statutes have

been constitutionally challenged, often on the grounds

that such statutes are ex post facto laws. KSORA’s dis-

closure section, K.S.A. 22-4909, appears to be the broadest

provision to receive an ex post facto challenge. Neither

the parties in this case nor our independent research have

located a case upholding the constitutionality of a sex

offender statute providing for unlimited public dis-

closure. Statutes held constitutional when challenged on

ex post facto grounds have provided for: no public dis-

closure, see, e. g., Snyder v. State, 912 P.2d 1127, 1129

(Wyo.1996) (Wyoming statute allows access only to those

already authorized by law to receive criminal history

information); limited disclosure, see, e.g., Noble, 171 Ariz.

at 176 (in Arizona, information only available in stat-

utorily specified circumstances where it serves regulatory

purpose); or carefully tailored community notification,

see, ¢.g., John Doe v. Poritz, 142 N.J. 1, 74, 662 A.2d 367

(1995) (New Jersey statute tailors scope of notification to

offender’s risk level).

Of the sex offender registration laws that have suc-

cessfully overcome ex post facto challenges, none have

27a

provided for unlimited public access to the registered sex

offender information. See, e.g., Opinion of the Justices, 1996

WL 406208, *15 (pending Massachusetts legislation pro-

posing community notification law not facially punitive);

John Doe, 142 NJ. at 73-75 (under New Jersey law, com-

munity notification appropriate only after a due process

hearing involving judicial review determining that the

offender poses sufficient risk); State v. Costello, 138 N.H.

587, 590, 643 A.2d 531 (1994) (New Hampshire registered

information kept confidential by authorities); Ward, 123

Wash. 2d at 502 (Washington law authorizes release of sex

offender registration information to the public when nec-

essary for public protection); People v. Starnes, 273 Il.

App. 3d 911, 653 N.E.2d 4 (1995) (Illinois child sex

offender registration information kept confidential; Ill.

Cons. Stat. Ann. ch. 730, 150/9 [Smith-Hurd 1996 Supp.]);

Manning, 532 N.W.2d at 246 (Minnesota registered infor-

mation kept private and used only for law enforcement

Purposes).

The Arizona sex offender registration act was upheld

in Noble, 171 Ariz. 171. The Arizona Supreme Court

reviewed two confli_cing Court of Appeals panel deci-

sions, after each panel had applied the Mendoza-Martinez

factors to determine if the registration requirement was

punishment. The Arizona registration requirements were

similar to those in KSORA. See Ariz. Rev. Stat. Ann.

§ 13-3821 (1989). Although the law contained no notifica-

tion provisions, it did provide for release of information

concerning the registered sex offender’s record to

“noncriminal justice agencies for evaluating

Prospective employees, public officials, or vol-

unteers; governmenial licensing agencies for

28a

evaluating prospective licensees; prospective

employers and volunteer youth-service agencies

whose activities involve regular contact with

minors; and the department of economic secu-

rity and the superior court for determining the

fitness of prospective custodians of juveniles.”

171 Ariz. at 176 n. 8 (citing Ariz. Rev. Stat. Ann.

§ 41-1750[B}[8], [9], [11], [13] [1992]).

Noble reasoned that registration did not impose any affir-

mative disability or restraint on the offender. Registration

did not restrain or inhibit the offender’s movement or

activities, although it did make information available in

“statutorily specified circumstances where it serves a

clearly regulatory purpose.” 171 Ariz. at 176. Noble

observed that registration has traditionally been viewed

as punitive (referencing Nathaniel Hawthorne’s The Scar-

let Letter), but noted that the provisions limiting access to

the information “dampen[ed] its stigmatic effect.” 171

Ariz. at 177. The registration requirement served a regu-

latory purpose by facilitating law enforcement and aiding

in investigative work, and as applied to child sex

offenders (because of more significant risk of recidivism),

was not excessive in relation to the nonpunitive purpose.

171 Ariz. at 177-78, Noble implies that if disclosure of the

information had not been statutorily limited, it would be

regarded as the kind of affirmative disability or restraint

usually associated with criminal punishment. 171 Ariz. at

176.

The constitutionality of the Washington sex offender

registration and disclosure law also withstood an ex post

facto challenge. Ward, 123 Wash. 2d 488. The appellants in

Ward attacked the disclosure provisions, which provided

that “[pJublic agencies are authorized to release relevant

i< ain et, Regn, = Roe CE Stine ate AR ten 0 Hee

29a

and necessary information regarding sex offenders to the

public when the release of the information is necessary

for public protection.” 123 Wash. 2d at 502 (quoting

Wash. Rev. Code § 4.24.550[1] [1994]). Ward noted that

existing law already provided for public disclosure of

conviction information. 123 Wash. 2d at 501.

In interpreting the statutory disclosure provisions,

Ward judicially imposed the following restrictions:

“We note that the statute [Wash. Rev. Code

§ 4.24.550(1)], on its face, requires the disclosing

agency to have some evidence that the offender

poses a threat to the community. Absent evi-

dence of such a threat, disclosure would serve

no legitimate purpose. Therefore, we hold that a

public agency must have some evidence of an

offender’s future dangerousness, likelihood of

reoffense, or threat to the community, to justify

disclosure to the public in a given case. This

statutory limit ensures that disclosure occurs to

prevent future harm, not to punish past

offenses.

“. . . An agency must disclose only that

information relevant to and necessary for coun-

teracting the offender’s dangerousness.

“[T]he geographic scope of dissemination

must rationally relate to the threat posed by the

registered offender. . . . The scope of disclosure

must relate to the scope of the danger. . .

“[W]e leave to the appropriate agencies the

specific decisions of whether, what, and where

to disclose within the parameters outlined

above.” 123 Wash. 2d at 503-04.

30a

Ward concluded that Washington’s disclosure provisions

did not “alter the standard of punishment which existed

under prior law,” finding “that the statutory limits on

disclosure ensure that the potential burdens placed on

registered offenders fit the threat posed to public safety.”

123 Wash. 2d at 504, 869 P.2d 1062. The disclosure provi-

sion in KSORA contains no restrictions. Registration

information is “open to inspection in the sheriff's office

by the public.” K.S.A. 22-4909.

The Supreme Court of New Hampshire upheld that

State’s sex offender registration act from an ex post facto

attack in Costello, 138 N.H. 587. The sex offender was

required to register with the state police and to report a

current address annually to the local law enforcement

agency. The information is kept confidential within the law

enforcement community. Costello held that the nonpenal, or

regulatory purpose of the legislation was “manifest” and

that the punitive effect of registration was de minimis. 138

N.H. at 591.

In John Doe, 142 N.J. i, the New Jersey Supreme

Court found New Jersey’s Megan’s Law to be lacking in

its original form but by the court's crafting of a judicial

review procedure, upheld the act against ex post facto,

double jeopardy, biil of attainder, and cruel and unusual

punishment attacks. John Doe determined that the regis-

tration and notification laws implicated a sex offender's

liberty interest in privacy and reputation and triggered

due process rights. The fundamental fairness doctrine

required a hearing and accompanying judicial review

before statutory notification of the community for sex

offenders identified as moderate and high risk (Tier II

and Tier III). 142 N.J. at 107, John Doe interpreted the

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3la

statute and judicially revised the Attorney General

Guidelines on risk level assessment and notification to

conform with the court’s notion of what was required to

provide adequate due process. The court augmented its

holding in a later order by specifically outlining the pro-

cedure to be followed in such review. John Doe acknowl-

edged that the “basic attack on these laws is the alleged

excessiveness of community notification.” 142 N.J. at 29.

State v. Babin, 637 So.2d 814 (La. App. 1994), consid-

ered conditions of parole requiring Babin, a sex offender,

to notify people within a 1-mile radius of his residence

and the school district superintendent of Babin’s convic-

tion. He was also required to publish notice of his convic-

tion twice within the official journal of the local

governing authority, in compliance with legislation

enacted after Babin committed the crimes. Without any

analysis, the Babin court declared the notification require-

ments unconstitutional as ex post facto legislation. But

see State v. Sorrell, 656 So.2d 1045, 1048 (La. App. 1995)

(Louisiana sex offender registration statute was not an ex

post facto law as applied to a rapist convicted before

enactment but paroled afterwards. Registration and noti-

fication requirements were imposed as a condition of

parole, and the law in effect at the time of release should

govern the terms of release.).

In State v. Manning, 532 N.W.2d 244 (Minn. App.

1995), the Court of Appeals of Minnesota determined that

the Minnesota sex offender registration statute was not

an ex post facto law. The registered information includes

address, fingerprints, photograph, and other information

required by the bureau of criminal apprehension, and

such information is only to be used “for law enforcement

32a

purposes.” Minn. Stat. § 243.166 (1992 & 1993 Supps.).

The Manning court determined that the statute did not

impose an affirmative restraint or disability. Manning rea-

soned that registration is not historically regarded as

punishment (noting that the registration information is confi-

dential), the deterrent effect of registration is minimal,

and the law has a nonpunitive purpose: to help police

investigations. 532 N.W.2d at 248.

Although not an ex post facto case, the California

Supreme Court determined in In re Reed, 33 Cal. 3d 914,

191 Cal. Rptr. 658, 663 P.2d 216 (1983), that registration

was a form of punishment. The California sex offender

registration statute was challenged as cruel and unusual

punishment as applied to a misdemeanor offender con-

victed of soliciting “lewd or dissolute conduct” from an

undercover officer in a public restroom. Under the stat-

ute, the misdemeanant was required to register for life

with the local police as a sex offender. The offender could

petition for release from the registration requirement, but

there was no procedure for expungment of the initial

registration. The court first consulted the Mendoza-Mar-

tinez factors and determined that the registration require-

ment was a form of punishment. The court then applied

the three-part test of In re Lynch, 8 Cal. 3d 410, 105 Cal.

Rptr. 217, 503 P.2d 921 (1972), and determined that the

“punishment” was “cruel or unusual” as applied to Reed.

The court noted that relatively minor conduct, such as a

flirtation accompanied by touching done in a public

place, could constitute an offense. Such an offender did

not pose a grave threat to society, warranting permanent

police surveillance.

33a

Federal Cases

Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994),

determined that plaintiff sex offenders were likely to

succeed on the merits on their ex post facto challenge to

the Alaska registration law and granted a preliminary

injunction to prevent public dissemination of sex offender

information. Burton held that Alaska’s act violated the

prohibition on ex post facto legislation, “because the law

includes a provision providing for public dissemination

of information concerning sex offenders whose convic-

tions ante-date the Registration Act.” 884 F. Supp. at 1380.

In engaging in an ex post facto analysis, the Burton

court first acknowledged that the “statutory design dis-

plays a purpose to regulate present circumstances, not to

punish.” 884 F. Supp. at 1377. Burton then considered the

Mendoza-Martinez factors in determining whether the law

had a punitive effect. Burton reasoned: (1) the public

dissemination provisions, which would subject the regis-

trants to “public stigma and ostracism that would affect

both their personal and professional lives,” imposed an

affirmative disability or restraint, showing a punitive

effect; (2) registration was not a “concept which this court

perceive[d] to be imbued by history with a punitive con-

notation”; (3) the act was premised upon “past knowingly

wrongful conduct of the registrant,” and therefore the

scienter factor was present, indicating punitive effect,

although that factor was to be given only “light weight”;

(4) while the registration requirement, by itself, may have

imposed only a de minimis burden, the public disclosure

mechanism could have both a deterrent and retributive

effect; (5) little weight is given to the factor of whether

the behavior to which the sanction applied was already a

34a

crime; and (6) the law had an alternative nonpunitive

purpose, but the public dissemination feature of the law

left open the possibility that the sanction may be exces-

sive in relation to its legitimate nonpunitive effect. 884 F.

Supp. at 1378-79. Burton noted that in none of the other

cases litigating the ccnstitutionality of sex offender regis-

tration acts were the public dissemination provisions, if

any, as broad as in Alaska’s law. 884 F. Supp. at 1380.

We note that the Alaska statute makes some informa-

tion in a central registry confidential but allows for public

disclosure under regulations to be adopted by the

Department of Public Safety. 884 F. Supp. at 1376.

KSORA’s disclosure provision appears broader, as none

of the required information is confidential.

Artway v. Attorney General of State of N.J., 81 F.3d 1235

(3d Cir.1996), as was Burton, was initiated by a motion for

an emergency temporary injunction against enforcement

of sex offender registration. The federal district court

granted the motion in part, determining that the notifica-

tion provision of New Jersey’s Megan’s Law was ex post

facto legislation, although the registration provisions

were upheld. The Third Circuit affirmed the federal dis-

trict court as to the registration provisions but vacated

the judgment as to the notification provisions, determin-

ing that the claims concerning those provisions were not

ripe. 81 F.3d at 1242.

The New Jersey registration requirements are similar

to those of other states, including Kansas. However, the

New Jersey law provides for a procedure authorizing

release of “relevant and necessary information concern-

ing registrants when . . . necessary for public protection.”

35a

81 F.3d at 1243. The local county prosecutor takes the

registration information, consults with the county pros-

ecutor of conviction, and, using a non-exclusive list of

Statutory factors and Attorney General's Guidelines,

makes a determination of the risk of reoffense for the

registrant. A low risk offender is classified in Tier L

moderate risk in Tier II, and high risk in Tier III. Each tier

requires different levels of notification. For Tier I, only law

enforcement agencies likely to encounter the offender are noti-

fied. For Tier II, local schools, licensed day care centers

and summer camps, and other community agencies and

organizations involved in the care or supervision of chil-

dren or support of battered women and rape victims are

notified. For Tier II], members of the public likely to

encounter the registrant are notified. Notification under

Tiers II and III includes the registrant’s name, photo-

graph, physical desc: :ption, the offense, address, place of

employment or schooling, and a description and license

plate number of the registrant’s vehicle. The notification

is also accompanied with a warning as to consequences of

and criminal sanctions for acts of vandalism, threats, and

assaults against a registrant. Tier II notice recipients are also

informed that the information is not to be shared with the

public and is to be used only to assist in protecting children,

battered women, or rape victims under their care. The Tier |

registration provisions of Megan’s Law upheld in Artway

limited disclosure to law enforcement agencies. The infor-

mation is not open to the public. 81 F.3d at 1264. As

previously mentioned, the Third Circuit in Artway did not

address the constitutional claims concerning Tier II and

Ill classifications and community notification.

36a

Tier I registration is similar to the Kansas registration

provision existing before KSORA. See K.S.A.1993 Supp.

22-4909 (no public disclosure). Under K.S.A. 22-4907, the

information a sex offender is required to provide upon

registration is not as extensive as that required under the

New Jersey law. However, K.S.A. 22-4907 was recently

amended to significantly expand the list of required

information. L. 1996, ch. 224, § 5.

W.P. v. Poritz, No. CIV. A. 96-97, 1996 WL 374036

(D.N.J. July 1, 1996), upheld the constitutionality of the

notification provisions in Megan’s Le~w after applying the

considerations previously discussed.

In Doe v. Pataki, 919 F. Supp. 691 (S.D.N.Y. 1996), the

federal district court granted the class-action plaintiffs’

motion for preliminary judgment against retroactive

application of the notification provisions of New York's

version of Megan’s Law (modeled after New Jersey’s

law), but denied the motion as to the registration provi-

sions. In determining that the public notification provi-

sions were punitive, the court relied upon five of the

Mendoza-Martinez factors, finding that the public notifica-

tion provisions: (1) have traditionally been viewed as

punitive; (2) serve a traditional punishment goal - deter-

rence; (3) impose an affirmative disability or restraint; (4)

are triggered by behavior that is already a crime; and (5)

have already led to excessively harsh results. 919 F. Supp.

at 700-01.

Ex Post Facto Analysis of KSORA

We acknowledge the statements in Artway, 81 F.3d at

1262, and John Doe, 142 N.J. at 72-73, that the Mendoza-

37a

Martinez factors are not the test for resolution of the ex

post facto issue. However, we also recognize that those

factors have provided guidance to a number of state (e.¢.,

Ward, Noble) and federal courts (W.P., Pataki, and Burton)

in considering ex post facto challenges to sex offender

registration legislation.

Because Ursery referenced the Mendoza-Martinez fac-

tors in its double jeopardy analysis, we believe those

factors, to the extent they may be helpful, merit consider-

ation in evaluating Myers’ ex post facto claim. We do not

apply the factors as a pass/fail test or in a checklist

fashion. We believe that some add little, if anything, to

the analysis, while others provide significant guidance.

Discussed below are those factors that we believe should

be emphasized in determining whether KSORA has a

punitive effect sufficient to override its nonpunitive legis-

lative purpose.

Affirmative Disability or Restraint

The KSORA registration requirement imposes no

affirmative disability or restraint, because the offender’s

movements within or without the community are not

restricted. The act of registration is the only requirement.

Although there may be discomfort in registration, Myers,

who carries the burden under his claim that KSORA is

unconstitutional, has furnished no evidence of punish-

ment flowing from registration alone. We hold that

KSORA’s registration requirement does not impose pun-

ishment; thus, our ex post facto inquiry as to registration

ends. However, we must also consider the provision in

K.S.A. 22-4909 that the registered information is open to

38a

public inspection in the sheriff's office. Although 22-4909

does not impose any affirmative dissemination require-

ments on the authorities, it imposes no restrictions on

anyone who inspects the information. The information

could be routinely published in the newspaper or other-

wise voluntarily disseminated by anyone. The practical

effect of such unrestricted dissemination could make it

impossible for the offender to find housing or employ-

ment. We find that the KSORA public disclosure provi-

sion does impose an affirmative disability or restraint.

Unrestricted public access to the registered information

leaves open the possibility that the registered offender

will be subjected to public stigma and ostracism.

Retribution and Deterrence

Registration has an obvious deterrent effect. A regis-

tered offender is more likely to think twice before com-

mitting another sex offense when the person knows that

the local sheriff already has the offender’s name on a list.

We acknowledge the statement in Ursery, 116 S. Ct. 2149,

that “the purpose of deterrence . . . may serve civil as

well as criminal goals.” The stigma that will accompany

public exposure of the registered information could be

viewed as a form of retribution. We find that the KSORA

public disclosure provision may have both a deterrent

and retributive effect. However, the nonpunitive purpose

of the statute cannot be accomplished without informing

the public that a sex offender is in its midst. If the statute

limited public disclosure to that necessary to protect the

public, then its deterrent effect could be viewed as inci-

dental to its nonpunitive purpose. Unlimited public

‘

39a

access to the registry provides a deterrent or retributive

effect that goes beyond such purpose.

Excessiveness

This is the key factor in our analysis. In other juris-

dictions, for the sex offender registration laws found to

be unconstitutional as ex post facto laws, the focus has

been on the excessive scope of public disclosure of regis-

tered information. See, e.g., Pataki, 919 F. Supp. at 700-01;

Burton, 884 F. Supp. at 1376.

KSORA places no restrictions on who is given access

to the registered offender information or what that per-

son does with the information. The print or broadcast

media could make it a practice of publishing the list as

often as they chose. Anyone could distribute leaflets con-

taining the registered information anywhere and any-

time. We observe that under K.S.A. 21-4006, it is a

misdemeanor to maliciously expose a paroled or dis-

charged person as having been charged with or convicted

of a felony with the intent to interfere with such person’s

employment or business. K.S.A. 21-4006 does not apply

“to any person or organization who furnishes informa-

tion about a person to another person or organization

requesting the same.” However, the crime of “maliciously

exposing a paroled or discharged person” does not

address exposure of sex offender registration for any

other purpose, such as interference with a sex offender’s

housing situation. The unrestricted public access leaves

open the probability that a registered sex offender could

40a

suffer the kind of public stigma and ostracism that con-

cerned the Artway court, although KSORA does not pro-

vide for any affirmative notification.

“In particular, Artway argues that Megan’s

Law is analogous to that most famous badge of

punishment: the Scarlet Letter. ‘There can be no

outrage . . . against our common nature, — what-

ever be the delinquencies of the individual, — no

outrage more flagrant than to forbid the culprit

to hide his face for shame; as it was the essence

of this punishment to do.’ Nathaniel Haw-

thorne, The Scarlet Letter 63-64 (Random House

1950) (1850). Like the Scarlet Letter, Artway con-

tends, Megan’s Law results in public ostracism

and opprobrium: it would subject him to poten-

tial vigilantism, impair his opportunities to

work, and damage his abilities to develop and

maintain stable relationships. In his submission,

its ‘remedial’ purpose - to protect the public

from him — seeks to brand him as an outcast.

Such a shunning by one’s community is the

essence of historical punishment, Artway con-

tends.

“Artway’s argument has considerable force, but

the notification issue is not before us. We evaluate

only registration, and that provision bears little

resemblance to the Scarlet Letter. Registration

simply requires Artway to provide a package of

information to local law enforcement; registra-

tion does not involve public notification. With-

out this public element, Artway’s analogy fails. The

Scarlet Letter and other punishments of ‘shame’ and

‘ignominy’ rely on the disgrace of an individual

before his community. The act of registering with

a discrete government entity, which is not

authorized to release that information to the

4la

community at large (except in emergencies),

cannot be compared io public humiliation.” 81

F.3d at 1265. (Emphasis added.)

We have acknowledged that merely having a criminal

conviction in itself includes “not only the formal penal-

ties and restrictions imposed by law but also collateral

sanctions incidentally imposed by society.” State v. Miller,

214 Kan. 538, 542, 520 P.2d 1248 (1974) (statute authoriz-

ing annulment of conviction on application of defendant

held constitutional). In Miller, we observed:

“es

[T]he record of a conviction for a serious

crime is often a lifelong handicap. There are a

dozen ways in which even a person who has

reformed, never offended again, and constantly

endeavored to lead an upright life may be preju-

diced thereby. The stain on his reputation may

at any time threaten his social standing or affect

his job opportunities. .. . ’” 214 Kan. at 542

(citing United States v. Morgan, 346 U.S. 502, 519,

98 L. Ed. 248, 74 S. Ct. 247 [1954]).

The Court of Appeals relied on Miller in holding that

a statute that retrospectively eliminated a right to have a

prior conviction expunged altered the punishment in vio-

lation of the Ex Post Facto Clause. State v. Anderson, 12

Kan. App. 2d 342, 344-45, 744 P.2d 143 (1987).

“Sexually violent crime” is defined in KSORA as

including the following sex-related felony crimes: rape,

indecent liberties with a child, aggravated indecent liber-

ties with a child, criminal sodomy, aggravated criminal

sodomy, indecent solicitation of a child, aggravated inde-

cent solicitation of a child, sexual exploitation of a child,

aggravated sexual battery, a felony conviction under a

42a

prior law comparable to any of above crimes, a federal or

other state felony conviction that would be a sexually

violent crime in this state, an attempt, conspiracy or

criminal solicitation of any of the above crimes, and “any

act which at the time of sentencing for the offense has

been determined beyond a reasonable doubt to have been

sexually motivated.” K.S.A. 22-4902(b). Although all of

the other categories are limited to felonies, the last cate-

gory could apparently include any “sexually motivated”

act resulting in an “offense.”

Several of the listed felonies include what otherwise

might be viewed as voluntary sexual contact between two

persons that is considered criminal because of the minor-

ity status of the victim and the fact that the victim is not

married to the accused: indecent liberties with a child,

K.S.A. 21-3503(a) (lewd touching or fondling or solicita-

tion of same with a 14-15 year old); aggravated indecent

liberties with a child, K.S.A. 21-3504(a)(1) (sexual inter-

course with a 14-15 year old); criminal sodomy, K.S.A.

21-3505(a)(2) (sodomy with a 14-15 year old); indecent

solicitation of a child, K.S.A. 21-3510(a) (soliciting a 14-15

year old to commit an unlawful sexual act, or persuading

such person to enter a vehicle or building for such pur-

pose). As an example, does every 18 year old (or 16 or 17

year old prosecuted as an adult) who has a voluntary

sexual relationship with a 15 year old, is convicted of one

of the above crimes, and is registered as a “sex offender”

pose a sufficient risk of reoffense that the registered

information should be subject to unrestricted public

access?

K.S.A. 22-4908 does provide a mechanism whereby

an already registered sex offender may petition the court

43a

for relief from the duty to continue registering. However,

this does not address the concern of whether it is initially

appropriate for the public to have access to the offender’s

registered information. KSORA does not allow for any

such individualized determination.

Whether we apply the New Jersey Supreme Court's

approach in John Doe, the three-prong analysis in Artway,

the considerations listed in W.P., or the Mendoza-Martinez

factors, we reach the same conclusion: For Myers,

KSORA’s disclosure provision must be considered pun-

ishment. We hold that the legislative aim in the disclosure

provision was not to punish and that retribution was not

an intended purpose. However, we reason that the reper-

cussions, despite how they may be justified, are great

enough under the facts of this case to be considered

punishment. The unrestricted public access given to the

sex offender registry is excessive and goes beyond that

necessary to promote public safety.

Because KSORA’s disclosure provision makes more

burdensome the punishment for a crime ¢ fter its commis-

sion, we conclude K.S.A. 22-4909, as applied to Myers,

violates the constitutional prohibition against ex post

facto laws.

We emphasize we are not balancing the rights of

Myers or other sex offenders against the rights of his or

their victims. What we are addressing is the right of

every citizen, in this case, Myers, to test a claim of consti-

tutional infringement arising from retroactive legislation.

Regardless of legislative motivation, we have a duty to

entertain such a claim when asserted and to resolve the

tension between the positions of Myers and the State.

44a

Public access to sex offender registration is a matter

of legislative public policy. Although we defer to the

legislature on policy matters, we must, however, exercise

our duty of analysis when ex post facto claims impact

legislative policy. Would-be sex offenders have been on

notice since April 14, 1994, when KSORA became law,

that if they commit certain crimes they will be subject to

public disclosure under K.S.A. 22-4909. Myers, whose

offense was committed before April 14, 1994, had no such

notice. The significant date in an ex post facto analysis is

the date of the offense, not the date of conviction. Weaver

v. Graham, 450 U.S. 24, 30-31, 67 L. Ed. 2d 17, 101 S. Ct.

960 (1981). To avoid the ex post facto characterization,

public access should be limited to those with a need to

know the information for public safety purposes. This

information should be used by those given access to it

only for such purposes. As the law is written now, no

such measures are in place for Myers.

Cruel and Unusual Punishment — Due Process

Myers contends that the disclosure aspect of KSORA

constitutes cruel and unusual punishment. The Eighth

Amendmert to the United States Constitution, applicable

to the states under the Fourteenth Amendment (see Rob-

inson v. California, 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct.

1417 [1962]), provides: “Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” Section 9 of the Kansas

Constitution Bill of Rights prohibits infliction of cruel or

unusual punishment. Myers also asserts that KSORA vio-

lates due process guarantees under the Fifth and Four-

teenth Amendments to the United States Constitution.

45a

As the State points out, Myers raises these two con-

stitutional issues for the first time on appeal. When con-

stitutional grounds are asserted for the first time on

appeal, they are not properly before us for review. State v.

Kaesontae, 260 Kan. 386, __ P.2d ___ (1996); State v. Stead-

man, 253 Kan. 297, 306, 855 P.2d 919 (1993).

Myers concedes that his cruel and unusual punish-

ment argument was not raised below, but asserts that it

fits within the first two of the following exceptions to the

general rule:

“(1) Cases where the newly asserted the-

ory involves only a question of law arising on

proved or admitted facts and which is finally

determinative of the case;

(2) Questions raised for the first time on

appeal if consideration of the same is necessary

to serve the ends of justice or to prevent denial

of fundamental rights; and

(3) That a judgment of a trial court may be

upheld on appeal even though that court may

have relied on the wrong ground or assigned a

wrong reason for its decision.” State v. Puckett,

230 Kan. 596, 598-99, 640 P.2d 1198 (1982).

We do not agree. Our reversal based on the ex post

facto application of KSORA’s disclosure provision

negates the substance of Myers’ reliance on Puckett.

Myers also contends that KSORA violates due pro-

cess under the Fifth and Fourteenth Amendments to the

United States Constitution because the term “rehabilita-

tion” is unconstitutionally vague. K.S.A. 22-4908 provides

for a hearing in which the sex offender may petition the

court for relief from further registration upon a showing

46a

that offender is “rehabilitated.” Myers’ argument is in the

abstract, because he has not petitioned for relief under

22-4908. His claim is unripe. See Artway, 81 F.3d at 1242.

Myers’ due process claim is not within the Puckett excep-

tions. We refuse to consider this issue for the first time on

appeal. No fundamental rights have been denied Myers

under K.S.A. 22-4908.

Conclusion

We uphold the constitutionality of the registration

requirement in KSORA. K.S.A. 22-4904; K.S.A. 22-4906,

and K.S.A. 22-4907. The disclosure provision allowing

public access to sex offender registered information,

K.S.A. 22-4909, when applied to Myers, is unconstitu-

tional punishment under the Ex Post Facto Clause. The

unlimited public accessibility to the registered informa-

tion and the lack of any initial individualized determina-

tion of the appropriateness and scope of disclosure is

excessive, giving the law a punitive effect — notwith-

standing its purpose, shown in the legislative history, to

protect the public.

We affirm the district court, subject to the unconstitu-

tionality of the K.S.A. 22-4909 disclosure provision as

applied to Myers.

To prevent an ex post facto violation, each sheriff's

office shall adopt a record system that prevents public

access or disclosure of the statements or any other infor-

mation required by KSORA of any sex offender required

to register whose offense occurred before April 14, 1994.

Any such statements or other information shall neither be

47a

open to the public nor subject to the provisions of the

Kansas Open Records Act, K.S.A. 45-215 et seq.

Affirmed in part and reversed in part.

48a

APPENDIX B

22.4901. Citation of act. K.S.A. 22-4901 through

22-4910, and amendments thereto, shall be known and

may be cited as the sex offender registration act.

22-4902. Definitions. As used in this act, unless the

context otherwise requires:

(a) “Sex offender” includes any person who, after

the effective date of this act, is convicted of any sexually

violent crime set forth in subsection (b) Upon such con-

viction, the court shall certify that the person is a sex

offender and shall include this certification in the order of

commitment. Convictions which result from or are con-

nected with the same act, or result from crimes commit-

ted at the same time, shall be counted for the purpose of

this section as one conviction. Any conviction set aside

pursuant to laws is not a conviction for purposes of this

section. A conviction from another state shall constitute a

conviction for purposes of this section.

(b) “Sexually violent crime” means:

(1) Rape as defined in K.S.A. 21-3502 and amend-

ments thereto;

(2) indecent liberties with a child as defined in

K.S.A. 21-3503 and amendments thereto;

(3) aggravated indecent liberties with a child as

defined in K.S.A. 21-3504 and amendments thereto;

(4) criminal sodomy as defined in subsection (a)(2)

and (a)(3) of K.S.A. 21-3505 and amendments thereto;

(5) aggravated criminal sodomy as defined in

K.S.A. 21-3506 and amendments thereto;

49a

(6) indecent solicitation of a child as defined by

K.S.A. 21-3510 and amendments thereto;

(7) aggravated indecent solicitation of a child as

defined by K.S.A. 21-3511 and amendments thereto;

(8) sexual exploitation of a child as defined by

K.S.A. 21-3516 and amendments thereto;

(9) aggravated sexual battery as defined by K.S.A.

21-3518 and amendments thereto; or

(10) any conviction for a felony offense in effect at

any time prior to the effective date of this act, that is

comparable to a sexually violent crime as defined in

subparagraphs (1) through (9), or any federal or other

State conviction for a felony offense that under the laws

of this state would be a sexually violent crime as defined

in this section;

(11) an attempt, conspiracy or criminal solicitation,

as defined in K.S.A. 21-3301a, 21-3302a or 21-3303a, and

amendments thereto, of a sexually violent crime, as

defined in this section; or

(12) any act which at the time of sentencing for the

offense has been determined beyond a reasonable doubt

to have been sexually motivated. As used in this subpara-

graph “sexually motivated” means that one of the pur-

poses for which the defendant committed the crime was

for the purpose of the defendant's sexual gratification.

means the sheriff of the county in which the offender

expects to reside upon the offender’s discharge, parole or

release.

50a

22-4903. Penalties. Any person who is required to

provisions of this act is guilty of a class A nonperson

misdemeanor.

22-4904. Registration of offender. (a) Within 15 days

of the sex offender coming into any county in which the

sex offender resides or is temporarily domiciled for more

than 15 days, the sex offender shall register with the

sheriff of the county.

(b)(1) If any person required to register as provided

in this act changes the address of their residence, the sex

offender shall, within 10 days, inform in writing the law

enforcement agency where last registered of the new

address.

(2) The law enforcement agency shall, within three

days of receipt of the new address, forward this informa-

tion to the Kansas bureau of investigation and to the law

enforcement agency having jurisdiction of the new place

of residence.

22-4905. Offender released, staff’s duty to inform;

address obtained. (a)(1) Any sex offender, who is dis-

charged or paroled from a prison, hospital or other insti-

tution or facility involving a violation of a sexually

violent crime pursuant to K.S.A. 22-4902, and amend-

ments thereto, prior to discharge, parole or release, shall

be informed by the staff of the facility in which the sex

offender was confined of the duty to register as provided

in this act.

(2)(a) The staff of the facility shall explain the duty

to register and the procedure for registration and require

5la

the person to sign a form prepared by the Kansas bureau

of investigation stating that the duty and procedure have

been explained to the person.

(B) The staff of the facility shall obtain the address

where the person expects to reside upon discharge,

parole or release and shall report the address to the

Kansas bureau of investigation.

the form to the person and shall send two copies to the

Kansas bureau of investigation, which shall then forward

one copy to the law enforcement agency having jurisdic-

tion where the person expects to reside upon discharge,

parole or release.

(b)(1) Any sex offender who is released on proba-

tion, receives a suspended sentence, sentenced to commu-

nity corrections or release on postrelease supervision

because of the commission of one of the sexually violent

crimes defined in K.S.A. 22-4902, and amendments

thereto, prior to release, shall be informed of the

offenders duty to register as provided in this act by the

court in which the offender is convicted.

(2)(A) The court shall require the person to read

and sign a form prepared by the Kansas bureau of inves-

tigation stating that the duty to register and the pro-

cedure for registration has been explained to such sex

offender.

(B) The court shall obtain the address where the

person expects to reside upon release and shall report the

address to the Kansas bureau of investigation.

52a

person and shall send two copies to the Kansas bureau of

investigation which shall then forward one copy to the

law enforcement agency having jurisdiction where the

person expects to reside upon release.

22-4906. Time period in which required to register;

liability. (a) Any person required to register as provided

in this act shall be required to register: (1) Upon the first

conviction of a sexually violent crime, if not confined, for

a period of 10 years after conviction, or, if confined, for a

period of 10 years after paroled, discharged or released;

or (20) upon a second or subsequent conviction for such

person’s lifetime.

(b) Upon the first conviction, liability for registra-

tion terminates, if not confined, at the expiration of 10

years from the date of conviction, or, if confined, at the

expiration of 10 years from the date of parole, discharge

or release, if the convicted sex offender does not again

become liable to register as provided by this act during

that period.

22-4907. Information required in registration. (a)

Registration as required by this act shall consist of a

statement in writing signed by the person. The informa-

tion shall include the following:

(1) Name;

(2) date of birth;

(3) offense or offenses committed, date of convic-

tion or convictions obtained;

(4) city or county of conviction or convictions

obtained;

SON BA ememm: =

a at a Eland

53a

(5) a photograph;

(6) fingerprints; and

(7) social security number.

(b) Within three days, the registering law enforce-

ment agency shall forward the statement and any other

required information to the Kansas bureau of investiga-

tion.

22-4908. Court order to relieve offender of duty to

act may apply to the court in this state having jurisdiction

over the county in which the sex offender resides for an

order relieving the sex offender of the duty of registra-

tion. The court shall hold a hearing on the application at

which the applicant and any interested persons may pre-

sent witnesses and other evidence. If, after the hearing,

the court finds by a preponderance of the evidence that

the sex offender is rehabilitated, the court shall grant an

order relieving the offender of the duty of further regis-

tration under this act.

22.4909. Information subject to open records act.

The statements or any other information required by this

act shall be open to inspection in the sheriff’s office by

the public and specifically are subject to the provisions of

the Kansas open records act. K.S.A. 45-215 et seq., and

amendments thereto.

22-4910. Effective date. K.S.A. 22-4901 through

22-4910 shall be effective on and after July 1, 1993.

54a

APPENDIX C

[p. 42] Excerpt from Lyon County,

Kansas District Court Case

No. 90-CR-432, Transcript of Sentencing,

pp. 42-45, August 15, 1994.

z * *

MR. DAVIS: For the purpose, my understand-

ing of criminal law is that this incident having occurred

prior to the enactment [p. 43] of that law, I do know [sic]

believe that the Supreme Court has, to this point allowed

the retroactive application of laws such as this. I recog-

nize that my client was convicted subsequent to the

enactment of that law; however, the, the [sic] incident and

the circumstances that lead to that conviction occurred

prior to that law by several years, and it would be our

position that the law would not be applicable given the

state of the law as I understand the Supreme Court has

applied it in criminal cases.

THE COURT: And what's your position for the

State of Kansas?

MR. VAN PETTEN: Well, Judge, quite honestly

I didn’t consider that; however, I, I believe this would be

a procedural matter not a substantive matter dealing with

the charge and; therefore, retroactivity would apply and

as a procedural matter it’s applied to the case upon its

enactment and I think it would apply in this situation.

THE COURT: I believe it would apply and we'll

let probation people tend to that. What we are doing in

Sedgwick County is that we have determined a form and

a procedure and the [p. 44] probation people are taking

care of that, is that what - do you know, Jeanne?

55a

MS. TURNER: We have the form here but I

think it’s done through the sheriff’s office.

THE COURT: But we will manage it through

the probation people and make sure it’s done. I will rule

that it does apply. Now, is there anything we need to talk

about to make the record a complete record?

MR. DAVIS: My understanding is that the

Court file will reflect that my client’s mother pledged

certain assets for purpose of the bond, we would ask that

that would be released.

THE COURT: The State wish [sic]to speak to

that?

MR. VAN PETTEN: No, sir.

THE COURT: Okay. It’s done.

MR. MYERS: Your Honor, can I Say something?

THE COURT: Tell your lawyer.

MR. DAVIS: Your Honor, with regard to the, to

the Court’s ruling regarding my client comply with the

statute and report his record in the community which

he’s residing, I would simply request that my objection to

that order [p. 45] be reflected on the record.

THE COURT: It is so shown.

56a

APPENDIX D

[p. 77] Journal Entry, Lyon County, Kansas

District Court Case No. 90-CR-432, R.II, pp. 77-78,

January 4, 1995

IN THE DISTRICT COURT

OF LYON COUNTY, KANSAS

THE STATE OF KANSAS,

Plaintiff, (Filed

vs. Feb. 10, 1995)

KYM MYERS,

Defendant.

NOW on this 4th day of January, 1995, the above

captioned matter comes before the court on motion of the

defendant to Modify The Conditions Of Probation herein

and a motion to Terminate Probation. The State of Kansas

appears by Edwin A. Van Petten, Special Assistant Attor-

ney General and Jalynn Copp, Assistant Attorney Gen-

eral; the defendant appears in person and by Steven L.

Davis, Court appointed counsel; there are no other

appearances.

WHEREUPON, the Court first takes up defendant’s

motion to Terminate Probation. The Court hears state-

ments and arguments of counsel regarding this matter,

reviews the files and the records herein and finds that

said motion should be overruled.

WHEREUPON, the Court considers defendant's

motion to Modify the Terms of Probation to eliminate

registration of defendant pursuant to K.S.A. 22-4901 et.

seq. The Court reviews the brief submitted by defendant

herein, hears the statements and arguments of counsel

57a

regarding this matter, and hears statement presented by

the defendant, and upon reviewing the file and the record

herein finds that defendant’s motion should be, and

hereby is overruled.

IS If THEREFORE, By the Court ORDERED,

ADJUDGED, AND DECREED that defendants motion

herein to Terminate Probation shall be overruled, and

defendant’s motion to Modify the Terms of Probations to

eliminate reporting of this defendant pursuant to K.S.A.

22-4901 et. seq. shall be overruled.

IT IS SO ORDERED.

/s/ Paul W. Clark

Paul Clark

District Judge Assigned

SUBMITTED BY:

/s/ Edwin A. Van Petten

Edwin A. Van Petten #10058

PUGH & PUGH

625 Lincoln Ave.

P.O. Box 138

Wamego, KS 66547

(913) 456-9377

Special Assistant Attorney General

APPROVED BY:

/s/ Steven L. Davis

Steven L. Davis #09717

PATTON, DAVIS & PUTNAM

605 Lincoln Street

P.O. Box Q

Emporia, KS 66801

(316) 342-0877

Attorney for Defendant

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.