Opposition Brief — Kiansas v. Myers

No. 96-823

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1996

STATE OF KANSAS,

KYM MYERS,

Petitioner,

Respondent.

BRIEF IN OPPOSITION

David J. Gottlieb, Professor

Kansas Defender Project

University of Kansas

School of Law, Green Hall

Lawrence, Kansas 66045

(913)-864-9225

Counsel of Record

Jessica R. Kunen

Chief Appellate Defender

700 Jackson, Suite 900

Topeka, Kansas 66603

(913)-296-5484

Rick Kittel

Kansas Defender Project

University of Kansas

School of Law, Green Hall

Lawrence, Kansas 66045

(913)-864-9225

Counsel for Respondent

No. 96-823

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1996

STATE OF KANSAS,

Petitioner,

KYM MYERS,

Respondent.

BRIEF IN OPPOSITION

David J. Gottlieb, Professor

Kansas Defender Project

University of Kansas

School of Law, Green Hall

Lawrence, Kansas 66045

(913)-864-9225

Counsel of Record

Jessica R. Kunen

Chief Appellate Defender

700 Jackson, Suite 900

Topeka, Kansas 66603

(913)-296-5484

Rick Kittel

Kansas Defender Project

University of Kansas

School of Law, Green Hall

Lawrence, Kansas 66045

(913)-864-9225

Counsel for Respondent

PAE ome

II

TABLE OF CONTENTS

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

QUESTION PRESENTED................ 2

STATEMENT OF THE CASE ............. 2

THE SEX OFFENDER REGISTRATION ACT 3

THE DECISION OF THE SUPREME COURT .. 5

REASONS FOR DENYING THE WRIT ...... 8

EG I SE re ee a 18

Il

TABLE OF AUTHORITIES

Cases:

Artway v. Attorney General, 876 F. Supp. 666, 673

(IS: PR ois & oe eee 11,12

California Dep't of Corrections v. Morales, 115

SQ. 1907, 108 GH oo PRS, 10

Doe v. Pataki, 940 F. Supp. 603 (S.D.N.Y 1996) .. 11

Doe _v. Poritz, 142 N.J. 1, 106, 662 A.2d 367, 420

ON oS ce OANG oe eee 16

Hendricks _v. State of Kansas, Sup. Ct. No. 95-

Spe eng Urey aren. kA 5 m 11

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

We 6 hoe ees eee 6,9,10

People _v._ Starnes, 273 Ill. App. 3d 911, 653

pS fe PO ee ee 15

Roe_v. Office of Adult Probation, 938 F. Supp.

Peer ts GO Bee. 8 ks ee teen 11,16

Rowe_v. Burton, 884 F. Supp. 1372, 1378 (D.

ye ea Pe 1]

IV

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

NOU aio ai aca a ie kiko ase Ee a 15

Me TE Sh a oe ee ek 11,15

State v. Myers, 255 Kan. 3, 872 P.2d 236 (1944)... 2

State_v. Noble, 171 Ariz. 171, 175, 829 P.2d 1217

NE bs aah eae a Baas ae 1]

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

ok ocr ee eae 11,15

United States v. One Assortment of 89 Firearms,

9.2 Tt, SE GO ss 6s Se 9

United States v. Ursery, 116 S.Ct. 2135, 2142,

ak BRM Emre a peel ergata ap 6,9

United States v. Ward, 448 U.S. 242 (1980) .... 6,9

W.P. v. Poritz, 931 F. Supp. 1199 (D.N.J. 1996) 12,16

Statutes:

Ala.Code § 13A11-201, 13A-11202 (1994) ...... 14

Ark. Code Ann. § 12-12-909 (Michie 1995) ...... 14

Vv

Colo.Rev.Stat.Ann. § 18.3-412.5(6.5)(West Supp.

Conn. Gen. Stat.Ann. § 54-102r(1996) ......... 17

Ind.Code Ann. § 5-2-12-11 (West Supp. 1996) .... 15

Batted, GG Zi-Tplte GIGGEF sv cccewec eee een 2

Bide GREMIEG 2s cheeks s eee res 2

Bh. GET os 64 we FUN 14 aN wk I 3

ee | Pee eee Le ere 4

Bide, § 2AOPORIEED 602) 8566 FON ole ER W e 4

ee | ea ee ee ee 4

K.S.A. §§ 22-4904, 4905, 4906, 4908 ......... 4

oT RP | | Meee ETE oe ee res ee ee ee 4

ee | eee ee ree eee Sey TT 5

Sitch. | DAIS «556. FEGAESVG O 13

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

IRE 6s 60 hat eee eee 14

FE ha hg pe ere 15

Me. Rev. Stat.Ann., tit 34-A §11143 (West Supp. 1996) 15

Mass.Gen.Laws Ann. ch 6 § 178K (West. Supp.

ED FERED CIE s Riese 16

Nev. Rev. Stat. § 207.155 (Michie Supp. 1995) .... 15

N.J. Stat.Ann. § 2-C7-7 (1995) ........ 000 e 16

N.Y. Corr.Law § 168-1 (1996) .............. 16

Okla. Stat.Ann. tit. 57 § 584 E (West Supp. 1997)... 15

R.I. Gen. Laws § 11-37.1-12 (Michie Supp. 1996) . 16

1

In The

SUPREME COURT OF THE UNITED STATES

Ortober Term, 1996

STATE OF KANSAS,

Petitioner,

vs.

KYM MYERS,

Respondent.

BRIEF IN OPPOSITION

Respondent, Kym Myers, requests that the Court deny

the Petition for Writ of Certiorari filed by the State of

Kansas seeking review of the decision of the Kansas

Supreme Court, entered on August 23, 1996. The opinion

upheld the constitutionality of the registration provisions of

the Kansas Sex Offender Registration Act (K.S.A. §§ 22-

4901-4910) but declared that the public disclosure provision

of that same act to be punishment in violation of the Ex

Post Facto Clause of Art. 1 § 10 of the Constitution as

applied to anyone whose offense occurred before the

effective date of the statute. The opinion is reported at 260

Kan. 669, 923 P.2d 1024 (1996), and is included as

Appendix A to the State’s Petition for Writ of Certiorari.

2

QUESTION PRESENTED

The public disclosure provision of the Kansas Sex

Offender Registration Act (K.S.A. §§ 22-4901-4910)

constitutes punishment in violation of the Ex Post Facto

Clause of Art. 1 § 10 of the Constitution as applied to

anyone whose offense occurred before the effective date of

the statute.

STATEMENT OF THE CASE

The Conviction and Sentencing

Respondent was convicted in 1991 of one count of rape

and one count of sexual battery (K.S.A. §§ 21-3502, 21-

3517). The Kansas Court of Appeals reversed the

conviction and remanded the case for a new trial. State v.

Myers, No. 67,626 (unpublished opinion) (Kan. App. 1993).

The opinion was affirmed by the Kansas Supreme Court.

State v. Myers, 255 Kan. 3, 872 P.2d 236 (1994).

Following the remand and plea negotiations with the

State, Respondent pled no contest to one count of

aggravated sexual battery (K.S.A. § 21-3518). Respondent,

who had already served 33 months of imprisonment, was

placed upon probation. At sentencing, the court also

informed Respondent that he was required to register as a

sex offender under the State’s then-new sex offender law.

(R. II at 42-44). Respondent’s objections to retroactive

imposition of this requirement were overruled.

Approximately four months later, Respondent moved to

3

modify the conditions of his probation, again arguing that

the retroactive imposition of the sex offender registration

requirements upon him constituted additional punishment in

violation of the constitutional provision against Ex Post

Facto legislation. Respondent explained to the court the

difficulties caused by the new act:

Now, [the Act] has caused me more

problems that 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 publishes 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. (R. IV

14; Pet. App. 4a).

Respondent’s motion was again denied.

Respondent subsequently appealed his conviction to

the Kansas Court of Appeals. He argued that the

requirement of registration as a sex offender and the

unfettered public access permitted the public of the

registration information, as applied to him, violated the Ex

Post Facto Clause of Article I § 10 of the Constitution, as

well as the Eighth Amendment’s Cruel and Unusual

4

Punishment Clause. Respondent also argued that the Act

violated procedural due process. The Supreme Court

agreed to a motion to transfer the case and, on August 23,

1996, the Court found the Act, in part, to violate the Ex

Post Facto Clause. The Court upheld the Act’s registration

requirement, but ruled unanimously that broad public

access provision violated Ex Post Facto when applied to

prisoners whose criminal conduct occurred prior to the

statute’s effective date. The Court declined to decide

Respondent’s cruel and unusual punishment and due

process claims. Pet. App. 44a-46a.

The Sex Offender Registration Act

The Kansas Sex Offender Registration Act, first passed

in 1993, and amended in 1994, requires the registration of

individuals convicted "after the effective date of this act"

of any "sexually violent crime." K.S.A. § 22-4902.' The

Act defines Sexually Violent Crime to include a number of

different felony offenses, including rape, indecent liberties

with a child, aggravated indecent liberties, criminal

sodomy, aggravated criminal sodomy, indecent solicitation

of a child, aggravated indecent solicitation, sexual

exploitation of a child, aggravated sexual battery, any

comparable felony committed in another state, or any

attempt, conspiracy or solicitation to commit the above

offenses. K.S.A. § 22-4902(b). These offenses include

both violent crimes and offenses that involves voluntary

sexual contact that is considered criminal because of the

minority status of the victim and the fact that the victim is

not married to the accused. In addition to requiring

registration for those convicted of the listed offenses, the

Act requires registration if the defendant commits an act

for any “offense” that the trial court finds to have been

"sexually motivated." K.S.A. § 22-4902(b)(12). The

failure of a defendant to register is a class A nonperson

5

misdemeanor. K.S.A. § 22-4903.

The officials at institutions where a sex offender is

incarcerated are obligated to inform him of his duty to

register. The offender must register within 15 days of his

arrival in any county in which he resides and must report

any change of address. The registration requirement

continues for 10 years after release for a first offender, and

for 20 years for a repeat offender. The registration

requirement can only be relieved if the offender convinces

the court, by a preponderance of the evidence, that the

offender is "rehabilitated." K.S.A. §§ 22-4904, 4905,

4906, 4908.

The offender must provide his name, date of birth,

offense or offenses committed, including the date and

county of conviction, a photograph, fingerprints and a

social security number. K.S.A. § 22-4907. While, prior

to 1994, this information was considered confidential,

during the 1994 session of the legislature, the statute was

amended to provide that "The statements or any other

information required by this act shall be open to inspection

in the sheriff's office by the public and specifically are

subject to the provisions of the Kansas open records act."

K.S.A. § 22-4909. There are no restrictions placed by the

Act on the individuals who may request disclosure or the

use made of the disclosed information.

The Decision of the Supreme Court

The unanimous opinion of the Kansas Supreme Court

carefully reviewed the language of the Sex Offender

Registration Act, this Court’s prior decisions on Ex Post

Facto legislation, the law in the other 49 states and federal

jurisdictions, and the decisions of the federal courts that

have ruled on this question. While upholding the

registration provisions and contained in the Act, the Court

found the public access provision of K.S.A. § 22-4909 to

6

be so excessive and unrelated to public safety as to

constitute punishment. Therefore, for the small class of

individuals whose conduct occurred prior to April 14,

1994, the effective date of that section, but whose

convictions were had after July 1, 1993, the effective date

of the statute, the public notification section was held to

operate as Ex Post Facto legislation. The court ordered,

for those individuals, that each sheriff's office shall adopt

a record system that prevents public access or disclosure of

the statement or any other information required by

KSORA. Pet. App. 46a.

As noted, before rendering its decision, the unanimous

Court canvassed in detail the registration laws in the other

states. The court noted that the definition of sex offenders

was not limited to those committing violent crimes and

could include anyone convicted of a misdemeanor offense

if it were sexually motivated. Pet. App. 42a. The Court

also noted that the State’s disclosure provision was

extremely broad, providing unrestricted public access. The

Court concluded that it could find no other state disclosure

provision broader than that in Kansas. Pet. App. 8a.

To determine whether the regulation was regulatory or

penal, and thus subject to the Ex Post Facto Clause, the

Court applied the test enunciated in United States v. Ward,

448 U.S. 242 (1980), and utilized most recently in United

States v. Ursery, 116 S.Ct. 2135 (1996). The Court sist

examined whether the legislative intent was that the act was

to be criminal/punitive. Finding that it was not, the Court

examined whether the "statutory scheme was so punitive

either in purpose and effect as to negate that intention."

Pet App at 17a (quoting United States v. Ward, 448 U.S.

242, 248-49 (1980)).

The Court noted that, prior to this Court’s decision in

United States _v. Ursery, supra, there had been some

confusion in the lower courts concerning whether, in

making the inquiry concerning the punitive effect of the

7

notification provisions, the courts should apply the factors

set forth in this Court’s decision in Kennedy v. Mendoza-

Martinez, 372 U.S. 144, 168-69 (1963). The Kansas

Supreme Court found that this Court’s decision in Ursery,

which utilized the factors in Kennedy in deciding whether

civil in rem forfeiture should be considered punitive for

double jeopardy purposes, had, at least by implication,

eliminated the confusion. The Court stated: "We conclude

that Ursery has endorsed the Mendoza/Martinez factors for

consideration in the punitive/non-punitive effect analysis."

Pet. App. 26a.

After canvassing both state and federal decisions on

different notification provisions, the Court upheld the

statute’s registration requirements, but concluded that the

public disclosure provision constituted additional

punishment for Ex Post Facto purposes. The Court

identified three principal grounds for its conclusion.

First, it noted that the public disclosure provision

constituted an "affirmative disability." The Court stated

that the absence of any control on the registration

information would allow routine publication of registration

data in newspapers or the dissemination of information by

anyone, for any reason. The Court noted that such

disclosure could make it impossible for an offender to find

housing or employment, as well as cause the offender to

suffer stigma and ostracism. Pet. App. 37a-38a.

Second, the Court held that the disclosure provisions

fostered the criminal law goals of retribution and

deterrence. The Court noted that the disclosure provisions

had an obvious deterrent effect, and that the stigma that

will accompany public exposure of the registered

information "could be viewed as a form of retribution."

Pet. App. 38a. Critically, the Court stated that if, like

many registration statutes, the law limited disclosure to that

necessary to protect the public, its deterrent effect could be

viewed as incidental to a non-punitive purpose. In

8

contrast, the unlimited public disclosure that is a part of the

Kansas statute was held to provide a deterrent or retributive

effect going beyond the State’s legitimate non-punitive

purpose. Pet. App. 38a-39a.

Third, and most significantly, the Court found the

Kansas statute excessive in relation to its regulatory

purpose, because of its failure to place restrictions on who

is given access to the registered offender information or

what that person does with the information. The Court

noted that unrestricted public access leaves open the

probability that registered sex offenders could suffer public

stigma and ostracism. The Court also relied upon the

extraordinary breadth of the definition of "sex offender" in

the Kansas statute, which includes within its ambit any

individual found to have committed a sexually motivated

crime, whether felony or misdemeanor. Pet. App. 42a.

The Court questioned whether all such individuals posed

sufficient risks of reoffense that the registered information

ought to be subject to unrestricted public access.

Finally, the Court noted that it would reach the same

conclusion were it to follow any of the major approaches

used by lower courts prior to this Court’s decision in

Ursery. The Court concluded that for Respondent, the

disclosure provision must be considered punishment and,

accordingly, a violation of the Ex Post Facto Clause as

applied to him. Pet. App. 43a.

REASONS FOR DENYING THE WRIT

The Court should deny the writ of certiorari in this

case for two reasons.

First, in rendering its opinion, the Kansas Supreme

Court correctly applied the test for determining whether a

provision is penal, rather than regulatory, and is therefore

subject to the prohibition against Ex Post Facto legislation.

The standard used by the Kansas Supreme Court was the

9

standard that has been approved by this Court and that was

accepted as the appropriate test by both parties to this

litigation. While we agree that this Court’s

pronouncements on the dividing line between punitive and

remedial statutes represent something less than a precise

formula, and that this formula is not always easy to apply,

we believe that the Petitioner overstates the degree of

confusion on how to go about the inquiry, particularly after

the guidance provided by this Court’s opinion in United

States v. Ursery, supra. We also note that this Court has

declined on several occasions to enunciate a precise

formula, that it is not clear that any such formula exists,

and that the Petition for Certiorari does not attempt to

suggest what a more precise formula might be.

Second, the adjudication in this case concerns a statute

that is in critical respects unique. Accordingly, resolution

of the constitutional issues by this Court will not provide

the guidance that Petitioner asserts other legislatures

require concerning their very distinct statutes. As the

Kansas Supreme Court noted, The definition of "sexual

offender" in the Kansas statute and the complete absence of

restraint on disclosure distinguish the Kansas statute from

every other state scheme that has been the subject of

litigation. In particular, this statute is utterly different from

the "tier" notification statutes that have been the subject of

much of the litigation concerning offender notification

provisions in the lower courts. A resolution of the

constitutionality of the Kansas statute will say little, one

way or the other, about the constitutionality of these

notification provisions.

1. The Kansas Supreme Court Correctly Decided This

Case Under the Appropriate Constitutional Standard.

This Court has consistently used a two-step approach to

determine whether legislation is subject to constitutional

restrictions, such as the Ex Post Facto Clause, applicable

10

to criminal proceedings. United States v. Ursery, 116

S.Ct. 2135, 2142, 2147 (1996). The first step is to decide

whether the legislature intended to create a civil/remedial

or criminal/punitive sanction. The second step is to decide ;

"whether the statutory scheme was so punitive either in

purpose or effect as to negate [the legislature’s] intention

to establish a civil remedial mechanism." Ursery, 116

S.Ct. at 2142 (quoting United States v. One Assortment of

89 Firearms, 465 U.S. 354, 365 (1984}); see United States

v. Ward, 448 U.S.242 (1980). In making this latter

determination, both this Court and lower courts have been

guided by this Court’s decision in Kennedy v. Mendoza-

Martinez, 372 U.S. 144 (1963), which held that a statute

that stripped citizenship from persons who had fled the

United States in order to avoid military service was

punitive in character. Before recounting the legislative

history that the Court found critical, the Court listed

several factors which, "are all relevant to the inquiry and

may often point in different directions." 372 U.S. at 169:

1)Whether the sanction involves an affirmative

disability or restraint,

2)whether it has historically been regarded

as punishment,

3)whether it comes into play only upon a

finding of scienter,

4)whether its operation will promote the

traditional aims of punishment--retribution

and deterrence,

5)whether the behavior to which it applies

is already a crime,

6)whether an alternative purpose 0 which

it may rationally be connected is assignable

to it, and

7)ywhether it appears excessive in relation to the

alternative purpose assigned.

lO

11

Id. at 168-69.? This Court utilized this two-part test, with

reliance on factors mentioned in Mendoza-Martinez, less

than a year ago in its decision in Ursery.

This Court has emphasized that the problem of

whether an action is regulatory or punitive “has been

extremely difficult and elusive of solution.” Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 168 (1963). However,

although given the opportunity repeatedly, and as recently

as last summer in Ursery, this Court has eschewed the

attempt to construct a universal formula for defining

punishment in all cases. Indeed, the Court has emphasized

that the question of whether a “legislative adjustment” is of

"sufficient moment" to constitute punishment "must be a

matter of degree." California Dep't of Corrections v.

Morales, 115 S.Ct. 1597, 1603 (1995)(emphasis added).

The opinion of the Kansas Supreme Court faithfully

applied this Court’s directions. The Court examined the

legislative intent evinced by the statute, and then examined

the statute’s actual impact. After examining the effect of

the notification provision, its retributive and deterrent

character, and its excessiveness, the Court determined that

the notification provision is punishment for ex post facto

purposes. Pet. App. 36a-44a.

Petitioner, although obviously opposed to the result

reached by the unanimous court, fails at any point to assert

that the test chosen by the Kansas Supreme Court was

incorrect. That omission is not accidental, for the mode of

analysis used by the Court, including consideration of the

factors mentioned by Mendoza-Martinez, was utilized by

the State in its brief to the Kansas Supreme Court.’ It is

also the standard that the State of Kansas has urged the

Supreme Court to adopt for the Ex Post Facto Clause in a

case currently before the Court. Hendricks v. State of

Kansas, Sup. Ct. No. 95-9075, Brief of Cross Respondent

at 16 (argued Dec. 10, 1996).

Moreover, as the Petitioner notes, it is the standard

12

utilized by the vast majority of courts that have grappled

with the issue of whether sex offender notification statutes

are punishment, and thereby subject to the Ex Post Facto

Clause. See Doe vy. Pataki, 940 F. Supp. 603 (S.D.N.Y

1996); Roe v. Office of Adult Probation, 938 F. Supp. 1080

(D. Conn. 1996); Artway v. Attorney General, 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, 532 N.W.2d 244, 247 (Minn. Ct. App. 1995);

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

Despite its agreement with the standard applied in the

Kansas Supreme Court, and the fact that the majority of

cases is in accord, Petitioner suggests that review is

warranted because two cases decided before this Court’s

opinion in United States _v. Ursery have questioned the

relevance of the factors cited in Mendoza-Martinez to the

analysis of whether a statute is penal or regulatory. See

Artway v. Attorney General, 81 F.3d 1235, 1262 (3d Cir.

1996); Doe v. Poritz, 142 N.J. 1, 63-73, 662 A.2d 367

(1995).4 We believe that review to determine the

relevance of the Mendoza-Martinez factors is not necessary

now, assuming it ever was. As the Kansas Supreme Court

recognized in Myers, whatever confusion may have existed

prior to this Court’s decision in United States v. Ursery

was effectively resolved by that decision. In Ursery, This

Court both utilized factors mentioned in Mendoza-Martinez

in arriving at its decision and abjured construction of any

rigid test for determining whether a regulation is punitive

or remedial. See Pet. App. at 24a-26a; accord, W.P. v.

Poritz, 931 F. Supp. 1199 (D.N.J. 1996); Roe v. Office of

Adult Probation, 938 F. Supp. 1080 (D. Conn. 1996).

Moreover, granting a petition for writ of certiorari to

resolve the "conflict" over the standard of review would be

inappropriate, since it would be unlikely to change the

decision reached by the Kansas Supreme Court. The Court

ne aN eT Tn

13

was aware of the standards used by those courts that,

unlike the parties in Myers, had questioned the relevance of

Mendoza-Martinez. The Court expressly stated that it

would reach the same conclusion whether it applied "the

New Jersey Supreme Court’s approach in John Doe, the

three-prong analysis in Artway, the considerations listed in

W.P., or the Mendoza-Martinez factors." Pet. App. at

43a.

In sum, the Court should deny review because the legal

standards in this case, although concededly difficult to

apply, are not genuinely in dispute, because the parties in

fact agree on the basic standards, because this Court has

previously eschewed attempting a rigid set of standards and

because, under any proposed test, the decision of the

Kansas Supreme Court is correct.

2. The Kansas Supreme Court’s Proper Resolution of The

Constitutionality of Its Own Unique Statue Does Not

Furnish An Appropriate Vehicle For A General Decision

on the Constitutionality of Sex Offender Registration Laws.

In addition to seeking to use this case as a vehicle to

clarify the standards for resolving Ex Post Facto

challenges, Petitioner seeks this Court to review the

decision because the "Ex Post Facto issues raised are

important and recurring" (Pet. App. 15) and because of the

belief that resolution of this case will provide "guidance

and clarity" in this important and difficult area of the law.

While we agree completely with Petitioner that the issues

raised in sex offender notification statutes are important to

both the public and to the offenders targeted by such laws,

we disagree that this case presents an appropriate vehicle

for resolution of the most difficult questions presented by

these statutes.

As Petitioner states, the Kansas Supreme Court placed

primary emphasis "on whether the statute was excessive in

relation to its underlying goal" (Pet. at 7). In making its

14

finding of excessiveness, the Kansas Supreme Court relied

heavily upon two features of the Kansas Sex Offender

Registration Act that it regarded as unique, or nearly so:

the lack of limitation on the individuals who could be

labelled as sex offenders, and the complete absence of

restriction on who could be given information concerning

sex offenders and what those individuals might do with

such information. Pet App. 39a-42a. As to the first of

those factors, the Kansas statute is almost surely the

broadest in the nation, requiring registration of individuals

who have committed most felony sex crimes, as well as

any individuals found by the court to have committed a

crime that is "sexually motivated." That definition is broad

enough to require and permit notification of an individual

convicted of misdemeanor theft of a sexually explicit

magazine, so long as the court were to find that the theft

was committed "for the purpose of the defendant’s sexual

gratification." K.S.A. § 22-4902(b)(12). In addition to the

breadth of the definition of sex offenders, the Act places no

limit on the ability of the public to access this information

or limits on what it can do with it. There are no

restrictions limiting access on need to know, requiring

those who obtain access to identify themselves, limiting the

use placed on the information, or limiting the category of

offenders to those who pose a substantial danger to public

safety. The unique combination of these factors, according

to the Kansas Supreme Court, permitted release of

information beyond that which was necessary to protect

public safety, thereby rendering it punitive in fact. The

conclusion of the court was that to avoid Ex Post Facto

difficulties, "public access should be limited to those with

a need to know the information for public safety purposes."

Pet. App. 44a.

The thorough opinion of the Court, as well as the

detailed summary of state statutes on sex offender

notification laws provided by Petitioner, fully supports the

aad

15

Court’s conclusion that the Kansas Statute is unique, or

nearly so. Because of that fact, resolution of the validity

of the Court’s decision by this Court is unlikely to provide

an answer to the question of whether the very different

statutes passed by different state legislatures are punitive

either in purpose or effect. In particular, resolution of the

issues in this case will not provide a solution to the

problem of whether the very different "tier" mandatory

disclosure statutes that have been the subject of conflicting

decisions in the lower courts are punishment within the

meaning of the Ex Post Facto Clause.

As the Kansas Supreme Court’s opinion and the

Petition for Certiorari itself demonstrate, most of the state

sex offender registration laws are far more circumspect

than that of Kansas concerning when disclosure may occur,

and most have accordingly been upheld by lower courts.

Thus, many state statutes provide that registration

information be maintained as confidential by law

enforcement. See, e.g., Ala.Code § 13Al11-201, 13A-

11202 (1994); Ark.Code Ann. § 12-12-909 (Michie 1995);

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

states permit disclosure, but limit that disclosure to

agencies concerned with children, such as school boards,

public schools and day care providers. See Ind.Code Ann.

§ 5-2-12-11 (West Supp. 1996); Nev.Rev.Stat. § 207.155

(Michie Supp. 1995); Okla. Stat.Ann. tit. 57 § 584 E (West

Supp. 1997). Still others permit disclosure by law

enforcement when the officials determine such disclosure

to be in the interests of public safety. . See, e.g..

Colo.Rev.Stat.Ann. § 18.3-412.5(6.5)(West Supp. 1996);

La.Rev.Stat. 15:546 (1995); Me.Rev.Stat.Ann., tit 34-A

§11143 (West Supp. 1996). As the Kansas Supreme Court

noted, the courts interpreting these more carefully limited

disclosure laws have generally held these laws to be

regulatory rather than punitive, and therefore not subject to

the Ex Post Facto Clause. See Pet. App. 26a-32a (citing

16

Snyder v. State, 912 P.2d 1127, 1129 (Wyo. 1996)(access

only to individuals authorized by law to receive

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

(1992)(limited dissemination to particular agencies when

necessary to serve regulatory purpose); State v. Costello,

138 N.H. 587, 590, 643 A.2d 531 (1994)(New Hampshire

information confidential); State v. Ward, 123 Wash. 2d 488,

869 P.2d 1062 (1994)(dissemination when necessary for

public protection); People v. Starnes, 273 Ill. App. 3d 911,

653 N.E.2d 4 (1995)(former Illinois statute, information

confidential); State v. Manning, 532 N.W.2d 244 (Minn.

App. 1995)(information kept confidential). There appears

to be little or no conflict or confusion in judicial

interpretation of these statutes, which coinprise the great

majority of state sexual offender notification laws. Not

only are these courts not in need of a Supreme Court

decision, they are interpreting statutes that are sufficiently

distinct from the Kansas notification scheme that it is

unlikely that a decision by this Court would resolve

questions of their constitutionality.

Nor will a decision on the Kansas statute provide

guidance concerning the type of statute that has prompted

a division among the lower courts, the so-called "tier"

mandatory notification provisions, for those laws are unlike

the Kansas law in design and effect. Under these schemes,

offenders are grouped, according to potential for

recidivism, in several categories, with different potential

for notification based upon the level of danger. See, e.g..

N.J. Stat.Ann. § 2-C7-7(1995)(if risk is low, registrant

information released only to law enforcement, if risk is

moderate, law enforcement must notify organizations in the

community, with information gained not to be shared with

the public and used only to assist in protecting children,

battered women or rape victims, if risk is high, law

enforcement must notify organizations in the community

and individual members of the public likely to encounter

17

the offender); N.Y¥.CorrLaw § 168-1 (1996);

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

ch 6 § 178K (West. Supp. 1996); Minn.Stat.Ann. §

244,052, subd. 4 (West Supp. 1997), (effective Jan. 1,

1997); R.I. Gen. Laws § 11-37.1-12 (Michie Supp. 1996).

Typically, the placement in a particular risk category

requires some due process protection. See Doe v. Poritz,

142 N.J. 1, 106, 662 A.2d 367, 420 (1995).

As the Kansas Supreme Court noted in Myers, these

elaborate statutes clearly differ from the Kansas Sex

Offender Registration Act in their careful attention to

tailoring the scope of notification to the offender’s risk

level. Pet. App. 26a. They also differ by providing due

process protections. Finally, they differ because, for the

highest-risk offenders, they mandate notification. These

statutes, which have produced most of the litigation,

particularly i in federal court, on the question of punishment,

present issues of importance and have divided the lower

courts. Compare Doe v. Poritz, supra; Opinion of the

Justices of the Senate, 423 Mass. 1201, 668 N.E.2d 738,

753 (Mass. 1996); and W.P. v. Portiz, 931 F. Supp. 1199

(D.N.J. 1996), with Doe v. Pataki, 940 F. Supp. 603

(S.D.N.Y. 1996); Roe v. Office of Adult Probation, 938 F.

Supp. 1080 (D. Conn. 1986). However, there is simply no

reason to believe that a decision on the Kansas statute,

which is utterly different in structure, in impact, and in its

legislative history, will provide an answer to the courts

wrestling with the validity of tiered notification systems. '

18

CONCLUSION |

For the foregoing reasons, Respondent Kym Myers

respectfully requests that this Court deny this petition for

a writ of certiorari.

Respectfully submitted,

*David J. Gottlieb, Professor

Kansas Defender Project

University of Kansas

School of Law, Green Hall

Lawrence, Kansas 66045

(913) 864-9225

ee eeeeeeoeeorereeer

Jessica R. Kunen

Chief Appellate Defender

700 Jackson, Suite 900

Topeka, Kansas 66603

(913)-296-5484

Rick Kittel |

Kansas Defender Project )

University of Kansas !

School of Law, Green Hall |

Lawrence, Kansas 66045

(913)-864-9225

*Counsel of Record |

19

1.The Act is set out in full in Appendix B to the Petition

for Writ of Certiorari filed by Petitioner.

2.In United States v. Ward, this Court termed this list of

considerations "helpful", although "certainly neither

exhaustive nor dispositive." 448 U.S. at 249.

3.State v. Myers, No. 95-74078, Brief of Appellee at 11

("The factors to be considered in the determination of

whether a law’s punitive effect negates an otherwise

regulatory purpose are set forth in Kennedy v. Mendoza-

Martinez.")

4.Artway and Doe had determined that reliance on

Mendoza-Martinez was inappropriate because of a footnote

in this Court’s opinion in Austin v. United States, 509 U.S.

602, 610 n.6 (1993), which appeared to assert that

Mendoza-Martinez was relevant only in the context of

determining whether a proceeding is sufficiently criminal

in nature to warrant criminal procedural protections of the

Fifth and Sixth Amendment.

5.The Petition for writ of certiorari also identifies ten states

that Petitioner asserts contain “passive notification"

schemes similar to that in Kansas. However, each and

every one is distinguishable in important respects from the

statute considered by the Kansas Supreme Court. First,

several apply to categories of offenders far more narrow

than in Kansas. See Ga.Code Ann. § 42-9-44.1 (Michie

1994)(limited to child sex offenders); Ill. Comp.Stat.

152/120 (West. Supp. 1996)(same); N.Y.Correct.Law

20

$168-q (1996)(registry of “sexually violent predators");

Cal.Penal Code § 290.4 (West. Supp. 1996)(subdirectory

of "sexual habitual violators"). For other states, in order

to obtain information, the individual requesting it must

provide specific information via a written request. Idaho

Code §§ 18-8301, 9-340(11)(f)(ii) (Michie 1996); Mass.

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

1996)(individual receiving information also receives

warning of criminal penalties for misuse of information).

In other states, the information provided is less extensive

than that available in Kansas. See Mont. Code Ann § 46-

23-508(1)(1995)(name of sex offender is public record);

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

1997)(some information is public record, photograph SSN,

driver license number, street address or telephone number

is confidential). Finally, in none of the statutes is the

category of individual required to register as broad as the

registration requirement in Kansas.