# Petition for Writ of Certiorari — Kiansas v. Myers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1843%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 521 U.S. 1118 ## Text 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 iv 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 ’ Vv 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 vi 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 4 ix 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 xi 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. 10 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). 11 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). 12 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 13 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 14 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 15 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. 16 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 17 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. 18 § 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 19 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 20 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 21 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, 22 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 23 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 © The “900” line access is available for all tiers. 24 (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). 25 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 26 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. 27 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 la APPENDIX A IN THE SUPREME COURT OF THE STATE OF KANSAS No. 74,078 STATE OF KANSAS, Appellee, V. 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’ 2a 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 register under KSORA. However, his registration shall 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. 3a 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 4a 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. 5a 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). 6a 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). ' : : b t i i a 7a 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 register to fewer crimes than does Kansas. S.D. Codified Laws Ann. § 22-22-30 (1996 Supp.). Myers contends he 8a 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 9a 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 register only after the second offense. Countless 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 a =~ wel LA “a 7 . 2 ' aa 7 A Septet bea an eadinenis OMS babies RS em eae aging eines = Ee — 5 all te a ee . hal Ml Z it.) we Bee oe ee eat yy ware 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 f [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1843%3A1. Public record. Not legal advice.