                                        No. 120,214

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                                   ISAAC LOUIS LITTLE,
                                       Appellant.

                              SYLLABUS BY THE COURT


1.
       The Equal Protection Clause requires that all who are similarly situated be treated
alike under the law.


2.
       A party claiming an equal-protection violation has to show that he or she is
similarly situated to members of a class receiving different treatment. When determining
whether groups are similarly situated, a court must consider any legitimate purposes of
the classification.


3.
       Those convicted of sexually violent crimes are subject to lifetime supervision on
release from prison because of the high risk of recidivism for that class of offenders. In
light of the purpose of the lifetime-supervision requirement, those offenders are not
similarly situated to those convicted of other serious, but not sexually violent, crimes
when considering whether imposing lifetime supervision on sexually violent offenders
violates equal protection.
        Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed June 12, 2020.
Affirmed.


        Angela M. Davidson, of Wyatt & Sullivan, LLC, of Salina, for appellant.


        Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.


Before ARNOLD BURGER, C.J., LEBEN and SCHROEDER, JJ.


        LEBEN, J.: Convicted of rape, aggravated criminal sodomy, and other offenses,
Isaac Little appeals one part of the sentence he received—lifetime supervision when he's
released after serving his prison sentence. Although Kansas law requires lifetime
supervision on convictions for sexually violent crimes, Little argues that giving him
lifetime supervision violates his constitutional right to equal protection of the law because
others who commit serious crimes, like murder, aren't subject to lifetime supervision.


        The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution provides that "[n]o state shall . . . deny to any person within its jurisdiction
the equal protection of the laws." That's essentially a direction that similarly situated
people be treated alike. But it only applies to those who really are similarly situated in
light of the purpose of the governmental provision that's involved.


        Here, we have a lifetime postrelease supervision provision for people convicted of
sexually violent crimes. Its purpose is obvious: sexually violent offenders have higher
recidivism rates and therefore need greater supervision after release. With that purpose in
mind, those convicted of other crimes aren't similarly situated. Little has not shown a
violation of his constitutional rights, and we affirm the district court's judgment.




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       With that overview, let's look more carefully at Little's case and the claim he
makes in this appeal.


       Little was part of a group of masked men who forced their way at gunpoint into a
couple's home in Wichita in May 2009. The couple lived there with their small children.
The man who lived there sold marijuana from time to time, and the invaders demanded
money or drugs. But the couple said they had none and asked the men to leave. Instead,
the invaders tore the house apart, shot the man several times, and raped and sodomized
the woman. After a weeklong trial, a jury convicted Little—as either a principal actor or
an aider and abettor—of attempted second-degree murder, rape, aggravated criminal
sodomy, kidnapping, aggravated burglary, criminal threat, aggravated battery, and
aggravated robbery. See State v. Little, No. 104,794, 2012 WL 3000342, at *1 (Kan. App.
2012) (unpublished opinion).


       The convictions for rape and aggravated sodomy are the significant ones in this
appeal. That's because they triggered a requirement that if Little is one day released from
prison—he's now serving a 330-month sentence—he will be under lifetime supervision.
See K.S.A. 2008 Supp. 22-3717(d)(1)(G). (We're citing to the statute that was in place
when Little committed his offenses since it applies to him. A similar statute remains in
place today.) Little argues that lifetime postrelease supervision violates his right to equal
protection of the law under the Equal Protection Clause of the Fourteenth Amendment.


       Both the United States Supreme Court and the Kansas Supreme Court have
interpreted the Equal Protection Clause to mean that all who are similarly situated be
treated alike. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S. Ct.
3249, 87 L. Ed. 2d 313 (1985); State v. Limon, 280 Kan. 275, 283, 122 P.3d 22 (2005).
So the first hurdle someone claiming an equal-protection violation must clear is the
showing that he or she is similarly situated to people who are treated differently under the



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law. State v. LaPointe, 309 Kan. 299, Syl. ¶ 6, 434 P.3d 850 (2019). Here, Little cannot
clear that initial hurdle.


       To see why, we must talk a bit about how to determine whether two groups are
similarly situated. The party claiming an equal-protection violation has the burden to
show a violation, and that includes showing that he or she is similarly situated to
members of a class receiving different treatment. 309 Kan. 299, Syl. ¶ 6. Given that
burden, it's not surprising that the complaining party gets to define the groups being
compared for differing treatment. State v. Salas, 289 Kan. 245, 249, 210 P.3d 635 (2009).


       Little has done that. He compares two groups: (1) those convicted of serious
sexual offenses, who get lifetime postrelease supervision, and (2) those convicted of other
very serious crimes, like murder, who do not get lifetime postrelease supervision. As
defined, the two groups are treated differently.


       But to determine whether there's anything wrong with treating them differently,
we must first determine whether they are similarly situated. And that task doesn't take
place based solely on what the party challenging the law may argue.


       Instead, that task takes place in a larger context: the basic question at issue in all
equal-protection cases is whether the government's classification is justified by a
sufficient purpose. Chemerinsky, Constitutional Law: Principles and Policies 725 (6th ed.
2019). And it's the government's purpose that's at issue—is it sufficient to justify the
classification?


       In looking for the government's purpose, we look to see whether there is some
legitimate objective the Legislature might have had—it need not have been specifically
identified in the legislative enactment. See United States R.R. Retirement Bd. v. Fritz, 449
U.S. 166, 179, 101 S. Ct. 453, 66 L. Ed. 2d 368 (1980); Barrett ex rel. Barrett v. U.S.D.


                                               4
No. 259, 272 Kan. 250, 256, 32 P.3d 1156 (2001). So our first task—determining whether
two groups are similarly situated—must be guided by the potential lawful purposes of the
classification. See State v. Cheeks, 298 Kan. 1, 6, 310 P.3d 346 (2013) (noting that the
"purpose of the law" is "the proper focus of a similarly situated inquiry"), overruled on
other grounds by State v. LaPointe, 309 Kan. 299, 434 P.3d 850 (2019); Ernest v. Faler,
237 Kan. 125, 130, 697 P.2d 870 (1985) (noting that "persons similarly situated with
respect to the legitimate purpose of the law [must] receive like treatment"); Shelton v.
Phalen, 214 Kan. 54, Syl. ¶ 2, 519 P.2d 754 (1974) (same); Rotunda & Nowak, Treatise
on Constitutional Law: Substance and Procedure § 18.2(a), pp. 312-13 (5th ed. 2012)
("Usually, one must look to the end or purpose of the legislation in order to determine
whether persons are similarly situated . . . .").


       If we find that the groups treated differently are similarly situated, we then must
determine whether the classification is sufficiently justified by the lawful purpose. We
require a sufficient connection between that lawful governmental purpose and the
classification. See LaPointe, 309 Kan. 299, Syl. ¶ 5.


       Since we judge similarity based on the government's purpose in the classification,
we must start our analysis of Little's claim by looking to see what the lawful purpose of
this classification—making lifetime supervision applicable to serious sexual offenders—
might be. Figuring that out isn't hard. In upholding the lifetime-supervision requirement
against a claim that it was unconstitutionally cruel punishment, the Kansas Supreme
Court noted the appropriateness of concerns about the uniquely high rate of recidivism
for convicted sex offenders. State v. Mossman, 294 Kan. 901, 909-10, 281 P.3d 153
(2012); see also Smith v. Doe, 538 U.S. 84, 103, 123 S. Ct. 1140, 155 L. Ed. 2d 164
(2003). Our Supreme Court has also noted that lifetime supervision fosters rehabilitation
of sex offenders while also keeping a watchful eye in light of the high potential to
reoffend. State v. Williams, 298 Kan. 1075, 1088-89, 319 P.3d 528 (2014).



                                               5
       With those purposes in mind, the classification Little complains about doesn't
compare similar groups. One group consists of the worst sexual offenders, and there's a
special risk of recidivism for that group. The other group simply committed a variety of
otherwise serious crimes. Because Little has not shown that the groups are similarly
situated in the light of the government's purpose, we hold that Little has not shown an
equal-protection violation here. Our holding today is in line with a decision from the
United States Court of Appeals for the Tenth Circuit and an unpublished decision from
our court. See Carney v. Oklahoma Dept. of Public Safety, 875 F.3d 1347, 1353 (10th
Cir. 2017); State v. Pjesky, No. 119,256, 2019 WL 1976466, at *2-3 (Kan. App.)
(unpublished opinion), rev. denied 311 Kan. ___ (December 31, 2019).


       In his appellate brief, Little cited to two cases dealing with access to DNA testing.
A Kansas statute, K.S.A. 21-2512, offers postconviction DNA testing only to those
convicted of first-degree murder or rape. In two cases, Kansas appellate courts found an
equal-protection violation when postconviction testing wasn't also made available to
those convicted of second-degree murder, Cheeks, 298 Kan. at 11, and aggravated
indecent liberties with a child, State v. Kelsey, 51 Kan. App. 2d 819, 829, 356 P.3d 414
(2015). Little argues that imposing lifetime supervision only for sexually violent offenses
similarly violates equal protection.


       The State says that we should reject that argument since Cheeks was overruled in
LaPointe, 309 Kan. at 854, and Kelsey was based on Cheeks. Kelsey, 51 Kan. App. 2d at
421. But even if Cheeks had not been overruled, that wouldn't affect the result here. The
purpose of the statute providing postconviction DNA testing was "to provide an
opportunity for exoneration to innocent individuals convicted of severe crimes." Cheeks,
298 Kan. at 6. Arguably, in light of that purpose, defendants convicted of similarly
serious offenses would be similarly situated. In our case, though, the purpose of the
lifetime-supervision provision is uniquely applicable to sexually violent offenders. So
Little cannot show similarity based merely on the serious nature of other offenses.


                                             6
       We recognize that some have criticized the method of equal-protection analysis
that starts with the threshold question of whether the groups are similarly situated. The
critics suggest that this makes it too easy to uphold a statute since the court never directly
measures the fit between the statute's lawful purpose and the challenged classification.
See State v. Hibler, 302 Neb. 325, 356, 923 N.W.2d 398 (2019) (Stacy, J., concurring)
(suggesting that ending analysis at the threshold similarity question "insulate[s] the
challenged classification from any meaningful equal protection review"); Shay, Similarly
Situated, 18 Geo. Mason L. Rev. 581 (2011) (arguing against the use of similarity as a
threshold question that ends the analysis if groups aren't sufficiently similar). We are not
free to ignore the similarity test as a threshold question; that's the rule that has been stated
by the Kansas Supreme Court as recently as 2019. See LaPointe, 309 Kan. 299, Syl. ¶ 5.
It's also the rule applied by the Tenth Circuit. See Requena v. Roberts, 893 F.3d 1195,
1210 (10th Cir. 2018); Carney, 875 F.3d at 1353.


       We are confident, though, that the application of the similarity threshold inquiry in
this case does not lead to any failure to correctly apply equal-protection principles for two
reasons. First, we made sure that there was a lawful governmental purpose to the
classification; we then used that lawful purpose to determine whether the groups were
similarly situated. Second, Little has not shown that any level of review higher than
rational-basis review (the least stringent that could be used) would be applied here to
determine whether the fit between the governmental purpose and the means used (the
classification) was sufficient to justify it. In this situation, we have essentially infused the
similarity inquiry with enough of the full analysis to make sure we have adequately
addressed the issue. See 18 Geo. Mason L. Rev. at 623-24.


       Little makes a brief mention of the equal-protection provisions of the Kansas
Constitution Bill of Rights. But his statement of the issue in this appeal claims only that
lifetime postrelease supervision violates the Equal Protection Clause of the Fourteenth


                                               7
Amendment, and he does not argue that the Kansas provisions give him any greater
protection than the Equal Protection Clause. Accordingly, we will not consider any
potential claim under the Kansas provisions. See Scribner v. U.S.D. No. 492, 308 Kan.
254, 262, 419 P.3d 1149 (2018) (declining to consider whether Kansas constitutional
provisions on equal protection provide greater protection than federal counterparts in the
absence of a party's argument that they do).


       We affirm the district court's judgment.




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