               IN THE SUPREME COURT OF THE STATE OF KANSAS

                                        No. 110,280

                                     STATE OF KANSAS,
                                        Appellant,

                                              v.

                                PROMISE DELON REDMOND,
                                        Appellee.


                              SYLLABUS BY THE COURT

1.
       Article I, § 10 of the United States Constitution provides that no state shall pass
any ex post facto law. Ex post facto laws include retroactively applied legislation that
makes more burdensome the punishment for a crime, after its commission.


2.
       The constitutional prohibition on ex post facto laws applies only to penal statutes.


3.
       To determine whether the retroactive application of a statutory scheme violates the
Ex Post Facto Clause, a court first determines the legislature's intention. If a statutory
scheme was intended to be punitive, it cannot be applied retroactively under any
circumstances.


4.
       If the legislature intended to enact a regulatory scheme that is civil and
nonpunitive, the next inquiry is whether the statutory scheme is so punitive either in

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purpose or effect as to negate the State's intent to deem it civil. If a statutory scheme is
punitive in effect, the Ex Post Facto Clause prohibits it application retroactively.


5.
        The Kansas Offender Registration Act, K.S.A. 22-4901 et seq., as amended in
2011, is punitive in effect, and the amended statutory scheme cannot be applied
retroactively to any sex offender who committed the qualifying crime prior to July 1,
2011.


        Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed April 22, 2016.
Affirmed.


        Brett Watson, assistant district attorney, argued the cause, and Jodi Litfin, assistant district
attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were on the brief for
appellant.


        Jeffrey G. Dazey, of Northeast Kansas Conflict Office, argued the cause and was on the brief for
appellee.


The opinion of the court was delivered by


        JOHNSON, J.: The State of Kansas appeals the district court's dismissal of criminal
charges against Promise Delon Redmond for failing to register as a sex offender, as
required by the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. The
district court determined that Redmond had completed his registration requirements at the
time of the alleged crimes because the 2011 amendments to KORA could not be
retroactively applied to Redmond without violating the Ex Post Facto Clause of the
United States Constitution.



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       Pursuant to K.S.A. 20-3018(c), we transferred the case from the Court of Appeals
and decide it the same day as two related cases, Doe v. Thompson, 304 Kan. ___, ___
P.3d ___ (No. 110,318, this day decided), and State v. Buser, 304 Kan. ___, ___ P.3d ___
(No. 105,982, this day decided). Consistent with our holdings in those companion cases,
we determine that KORA's statutory scheme after the 2011 amendments was so punitive
in effect as to negate the implied legislative intent to deem it civil, so that the Ex Post
Facto Clause precludes its application to any sex offender who committed the qualifying
crime prior to July 1, 2011. Accordingly, we affirm the district court.


                          FACTUAL AND PROCEDURAL OVERVIEW

       On December 13, 2001, Redmond pled no contest to one count of indecent
solicitation of a child 14 to 15 years old, then a severity level 7, person felony. See
K.S.A. 21-3510 (Furse 1995). Redmond was sentenced to a term of 13 months'
imprisonment, but the district court suspended his sentence and placed Redmond on
probation for 24 months. The district court also found that Redmond was required to
register as a sex offender.


       Under the 2001 version of KORA, Redmond was required to register for 10 years
"from the date of conviction." K.S.A. 2001 Supp. 22-4906(a)-(b). Accordingly, prior to
the 2011 amendments, Redmond's registration term would have expired on December 13,
2011. Under the 2011 amendments, Redmond's crime of conviction requires registration
for 25 years, which would make his term of registration expire in 2026. K.S.A. 2011
Supp. 22-4906(b)(1)(B).


       On November 6, 2012, the State charged Redmond with three counts of violating
KORA. Each count alleged Redmond failed to report in person: the first failure to report
on or about September 1, 2012; the second failure to report on or about March 1, 2012;

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and the third failure to report on or about June 1, 2012. All three dates were outside the
original 10-year registration period.


       Redmond filed three motions to dismiss, two of which raised procedural due
process issues that are not involved in this appeal. The motion to dismiss at issue here
raised the question of whether the charges against Redmond violated the constitutional
prohibition against ex post facto laws. The State responded to the motions, Redmond
filed a notice of additional authority, and then the parties requested leave to submit the
motion on their briefs. Thereafter, the district court granted Redmond's motion to dismiss
on ex post facto grounds and declared the other motions to be moot. The State timely
appealed to the Court of Appeals, and this court transferred the appeal.


                RETROACTIVE APPLICATION OF KORA 2011 AMENDMENTS

       The 2011 version of KORA's statutory scheme stated that it applied to any person
who was convicted of any sexually violent crime on or after April 14, 1994. See K.S.A.
2011 Supp. 22-4902(b) (defining "sex offender"). Indecent solicitation of a child is
statutorily designated as a "sexually violent crime." K.S.A. 2011 Supp. 22-4902(c)(6).
Accordingly, Redmond's 2001 conviction purportedly made him subject to the additional
and enhanced provisions of the 2011 statutory scheme, including the increased time
period from 10 years to 25 years for first-time offenders.


       But legislative acts must comport with our federal and state constitutions, and
Article I, § 10, of the United States Constitution provides, in relevant part, that "[n]o
State shall . . . pass any . . . ex post facto Law." One category of ex post facto laws is
"'"any statute . . . which makes more burdensome the punishment for a crime, after its
commission."'" State v. Todd, 299 Kan. 263, 277, 323 P.3d 829 (2014) (quoting Beazell v.
Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 70 L. Ed. 2d 216 [1925]). Yet, "[t]he

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constitutional prohibition on ex post facto laws applies only to penal statutes." State v.
Myers, 260 Kan. 669, 677, 923 P.2d 1024 (1996). So the question becomes whether
KORA is punitive.


       The district court determined that the amended statutory scheme was "uniquely
punitive" for Redmond and that the subsequently added burdens placed upon Redmond
for a previously committed crime violated the Ex Post Facto Clause.


Standard of Review

       The district court relied on constitutional grounds to find that the 2011 version of
KORA could not be applied to Redmond. "When the application of a statute is challenged
on constitutional grounds, this court exercises an unlimited, de novo standard of review.
State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996)." State v. Cook, 286 Kan. 766,
768, 187 P.3d 1283 (2008).


Analysis

       In reaching its decision, the district court applied the analytical framework from
this court's prior decision in Myers and the United States Supreme Court's prior decision
in Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). That framework
is referred to as an "intent-effects" test. See, e.g., Moore v. Avoyelles Correctional
Center, 253 F.3d 870, 872 (5th Cir. 2001).


       Under the intent-effects test, a court must first determine legislative intent. "If the
intention of the legislature was to impose punishment, that ends the inquiry." Smith, 538
U.S. at 92. The statute is penal and cannot be applied retroactively.



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       But if the legislature's intention was to enact "a regulatory scheme that is civil and
nonpunitive," the court must then "examine whether the statutory scheme is '"so punitive
either in purpose or effect as to negate [the State's] intention" to deem it "civil."'" Smith,
538 U.S. at 92 (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 138 L.
Ed. 2d 501 [1997]). For the effects part of the test, the court utilizes the factors identified
in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 544, 9 L. Ed. 2d 644
(1963) (Mendoza-Martinez factors), as "useful guideposts." Smith, 538 U.S. at 97.


       In determining legislative intent, the district court first noted that KORA does not
contain an expressed statement of purpose. The district court then looked to Myers, which
had held that the legislative history of the 1994 Kansas Sex Offender Registration Act
(KSORA) suggested that the act served the nonpunitive purpose of public safety. 260
Kan. at 681. The district court then determined that the Kansas Legislature also "likely
meant" to enact KORA as a "civil, regulatory scheme," and proceeded to the "effects"
portion of the test. In Doe v. Thompson, 304 Kan. ___, ___ P.3d ___ (No. 110,318, this
day decided), slip op. at 31, we observed that we had not been pointed to any subsequent
legislative history for KORA that would contradict Myers' determination of the
nonpunitive legislative intent for KSORA. In like fashion, we affirm the district court's
holding below that the legislative intent of KORA was nonpunitive.


       For the "effects" analysis, the district court was guided by the Mendoza-Martinez
factors, which it recited from Myers, as follows:


       "'[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 on 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 to which it may rationally be


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       connected is assignable for it, and [7] whether it appears excessive in relation to the
       alternative purpose assigned.'" Myers, 260 Kan. at 681.


       With respect to the first factor, the district court opined that the in-person reporting
requirements and the registration fees assessed subjected KORA registrants to an
affirmative disability or restraint. The court pointed out that a person who lives, works,
and attends school in different counties would have to report in person 12 times a year,
which resembled parole or probation. The court found the reporting requirements
imposed upon an offender's time and served as a physical restraint. Further, the court
noted that the registration fees were a substantial cost to the registrant, adding up to
between $2,000 and $6,000 over the course of the unalterable 25-year registration period.
Moreover, that cost would be particularly burdensome if the offender suffered
employment difficulties because of the notification provisions of KORA. The district
court also pointed to other states which had found similar statutory schemes to work an
affirmative disability or restraint on the offender.


       With respect to the historical nature of the punishment, the district court found
persuasive the analogy to the colonial punishment of shaming made by the Indiana court
in Gonzales v. State, 980 N.E.2d 312, 318-19 (Ind. 2013). The district court also noted
that Myers had quoted from Nathaniel Hawthorne's The Scarlet Letter, indicating the
historical aspect of treating public notification as punishment.


       For the rest of the factors, the district court did not make a detailed recitation on
the record, referring on occasion to the defendant's arguments. With respect to
excessiveness, the district court appeared to find that the added requirements were
particularly excessive and punitive when applied to Redmond.




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       What the district court did not clarify is that we are applying a federal
constitutional provision, so that Kansas state courts are duty-bound to follow the
decisions of the United States Supreme Court when interpreting the United States
Constitution. See, e.g., Trinkle v. Hand, 184 Kan. 577, 579, 337 P.2d 665, cert. denied
361 U.S. 846 (1959) (Under Article VI of the United States Constitution, "the
interpretation placed on the Constitution and laws of the United States by the decisions of
the supreme court of the United States is controlling upon state courts and must be
followed.").


       Smith considered an Ex Post Facto Clause challenge to the Alaska Sex Offender
Registration Act (ASORA), utilizing the intent-effects test. The Court found the intent of
the Alaska Legislature was to enact a civil and nonpunitive law. Then, applying five of
the Mendoza-Martinez factors, Smith determined that the offenders had failed to show
"that the effects of the law negate Alaska's intention to establish a civil regulatory
scheme," so that the act was nonpunitive and its retroactive application did not violate the
Ex Post Facto Clause. 538 U.S. at 105-06. Accordingly, for us to find KORA punitive,
we must find it factually distinct from ASORA.


       In Thompson, which is filed this same date, we listed the significant differences
between the 2011 KORA and the ASORA reviewed in Smith, some of which were
mentioned by the district court. Those differences included the following: KORA applies
to a broader group of offenders; KORA requires frequent in-person reporting regardless
of whether registration information has changed since the last reporting; KORA requires
a longer registration period for some first-time offenders; KORA requires additional
registration information; KORA requires changed information to be reported in person
within 3 days; KORA requires additional information to be disseminated to the public;
KORA imposes potentially costly registration fees; KORA requires advance notice for
travel outside the United States; KORA requires annual driver's license renewal and
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offenders subject to KORA must have a distinguishing number on their licenses; parents
subject to KORA must disclose that status in any proceeding determining child custody,
residency, and parenting time; and KORA imposes severe, person felony sanctions for
violating any KORA provision. Thompson, slip op. at 32-35.


       Then, we reviewed the factually distinct KORA, as amended in 2011, in light of
the Mendoza-Martinez factors, in the manner employed by Smith, albeit with a different
end result. We first determined that the statutory scheme resembled traditional forms of
punishment by being akin to public shaming and by replicating the circumstance of being
on probation or parole. Thompson, slip op. at 37-38. The latter circumstance also imposed
an affirmative disability or restraint on the offender, as did the difficulties in obtaining
employment and housing caused by KORA. Moreover, the financial obligations were
punitive in effect, when viewed from an offender's perspective. Slip op. at 39-40. Next,
we determined that the current KORA had a deterrent effect and was retributive in
character, before opining that KORA was not rationally connected to the nonpunitive
purpose of public safety. In other words, the statutory scheme is excessive in relation to
its regulatory purpose. Slip op. at 43. Consequently, we determined that the 2011 version
of KORA is punitive in effect and that the amended statutory scheme cannot be applied
retroactively to any sex offender who committed the qualifying crime prior to July 1,
2011. Slip op. at 44.


       Applying Thompson's holding to the facts before us, we find that Redmond's 10-
year registration period could not be retroactively increased to 25 years; that Redmond
had completed his registration requirements under the law in effect when he committed
his crime by the dates of his alleged failure to report; and that, without a statutory duty to
report, Redmond could not be prosecuted for failing to report. Consequently, the district
court's dismissal of the charges against Redmond is affirmed.


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       Affirmed.


       MICHAEL J. MALONE, Senior Judge, assigned.1


                                                ***


       BILES, J., dissenting: I dissent from the majority's decision in this case for the
reasons more fully stated in my dissent in Doe v. Thompson, 304 Kan. ___, ___ P.3d ___
(No. 110,318, this day decided). As explained there, I believe the majority asks and
answers the wrong question. Whether the Kansas Offender Registration Act (KORA) as
amended in 2011 violates the Ex Post Facto Clause of the United States Constitution is
entirely a federal question. We should apply the abundant federal caselaw where possible
to inform the analysis. The majority's approach disregards that caselaw.


       As explained in my Thompson dissent, the applicable federal caselaw considers
similar burdens under other offender registration schemes. It compels me to conclude that
the 2011 KORA amendments do not violate the federal Ex Post Facto Clause and the
United States Supreme Court would so hold. Accordingly, I must dissent.


       NUSS, C.J., and LUCKERT, J., join in the foregoing dissent.




1
 REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 110,280 under
the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court
created by the appointment of Justice Nancy Moritz to the United States 10th Circuit Court of
Appeals.

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