Commonwealth of Kentucky v. Michael Baker

• Court: Kentucky Supreme Court
• Decided: October 1, 2009
• Docket: 2007 SC 000347
• Status: Unknown

Opinion

RENDERED : OCTOBER 1, 2009 134I`5 1EM

';VUyrrMr (~Vurf of T'l 2007-SC-000347-CL

COMMONWEALTH OF KENTUCKY PETITIONER

FROM KENTON DISTRICT COURT V. HONORABLE MARTIN J . SHEEHAN, JUDGE NO. 07-M-00604

MICHAEL BAKER RESPONDENT

OPINION OF THE COURT

CERTIFYING THE LAW

I . INTRODUCTION

The question of law to be answered is whether KRS 17.545, which

restricts where registered sex offenders may live, may be applied to those who

committed their offenses prior to July 12, 2006, the effective date of the

statute. We hold that it may not. Even though the General Assembly did not

intend the statute to be punitive, the residency restrictions are so punitive in

effect as to negate any intention to deem them civil. Therefore, the retroactive

application of KRS 17 .545 is an ex post facto punishment, which violates

Article 1, Section 10 of the United States Constitution, and Section 19(1) of the

Kentucky Constitution . II. BACKGROUND

Kentucky's Sex Offender Residency Restrictions

On July 29, 1994, seven-year-old Megan Kanka disappeared from her

1 neighborhood in Hamilton Township, New Jersey . Soon after, police discovered

that Megan had been raped and murdered by a man previously convicted of sex

offenses. New Jersey enacted wh

sex offenders to register with the state, and establishing notification procedures

for those living nearby. The sane year, Congress passed the Jacob Wetterling

Crimes Against Children and Sexually Violent Offenders Registration Act,

which conditioned certain law enforcement funding on states enacting their

own version of Megan's Law.

Like every other state, Kentucky has enacted a version of Megan's Law.

The General Assembly first enacted sex offender registration requirements in

1994, amending them in 1996 and again in 2000. "1`he 2000 amendments to

our Megan's Law also included residency restrictions on sex offenders as a

condition of their probation or parole. That restriction, codified at KRS 17 .495,

read as follows:

No registrant, as defined in KRS 17 .500, who is placed on probation, parole, or other form of supervised release, shall reside within one thousand (1,000) feet of a high school, middle school, elementary school, preschool, or licensed day care facility. The measurement shall be taken in a straight line from the nearest wall of the school to the nearest wall of the registrant's place of residence .

This Court upheld the registration provisions of Kentucky's Megan's Law

in Hyatt v. Commonwealth, 72 S.W.3d 566 (Ky. 2002). The next year, the United States Supreme Court. uhlield Alaska's sex offender registration statute

against an ex post. facto challenge ill Smith v. Dock, 538 U.S. 84 (2003) . 1

In 2006, the General Assembly enacted House Bill 3, which amended

Kentucky's residency restrictions to their current form. 2006 Ky. Acts 182 .

The current residency restriction statute, effective July 12, 2006, codified at

KRS 17.545, reads as follows:

(1) No registrant, as defined in KRS 17.500, shall reside within one thousand (1,000) feet of a high school, middle school, elementary school, preschool, publicly owned playground, or licensed day care facility. The measurement shall be taken in a straight line from the nearest property line of the school to the nearest property line of the registrant's place of residence .

(2) For purposes of this section :

(a) The registr~mt shall have the duty to ascertain whether any property listed in subsection (1) of this section is within one thousand (1,000) feet. of the registrant's residence ; and

(b) If a new facility opens, the registrant shall be presumed to know and, within ninety (90) days, shall comply with this section.

(3) Any person who violates subsection (1) of this section shall be guilty of:

(a) A Class A misdemeanor for a first offense ; and

(b) A Class D felony for the second and each subsequent offense .

(4) Any registrant residing within one thousand (1,000) feet of' a high school, middle school, 1 Doe subsequently challenged the registration statute in state court on state law grounds, with the Alaska Supreme Court holding that the statute cannot be applied retroactively. Doe v. State, 189 P.3d 999 (Alaska 2008) . elcment,,=-,iry school, presel- iool, publicly owned 131aygroiind, or licensed day (, are facility on July 12, 2006, shall move. and comply with this section within ninety (90) days of July 12, 2006, and thereafter, shall be subject to the penalties set forth tinder subsection (3) of this section .

(5) This section shall not apply to a youthful offender probated or paroled during his or her minority or while enrolled in an elementary or secondary education program.

While the original residency restrict ion statute applied only to those on

probation, parole, or otl-ier form of supervised release, the current statute

applies to all registrants regardless of probation or parole status . In addition,

KRS 17 .545 adds publicly owned playgrounds to the list of prohibited areas,

and measures the distance from the property line as opposed to the wall of a

building. The statute also places the burden on the registrant to determine

whether he is in compliance . Violation ofthe residency restriction is a Class A

misdemeanor for the first offense, and ;a Class D felony for subsequent

offenses .

B. Procedural His jr,V

On March 31, 1995, Respondent Michael Baker entered a guilty plea to a

charge of third-degree rape in Kenton Circuit Court. In addition to

Respondent's probated sentence of five years imprisonment, pursuant to the

version of KRS 17.520 in effect at the time. Respondent was required to register

as a sex offender until March 27, 2010 .

Respondent subsequently lived in Reading, Ohio with his family .

However, the City of Rea-ding's sex offender residency restrictions forced Respondent to niove back to Kentucky . On February 2, 2007, Respondent

resided in Elsinere, Kentucky and was arrested and charged with violating KRS

17 .545 for living within 1,000 feet of East Covered Bridge Park, allegedly a

public playground .

According to Respondent, the Division of Probation and Parole provided

him with a link to a. website to determine whether he was in compliance with

KRS, 17.545 . The website did not show East. Covered Bridge Park and the

surrounding area to be a prohibited zone .

In Kenton District Court, Respondent challenged KRS 17 .545 on a

number of constitutional grounds and moved to dismiss the charges against

him. On April 20, 2007 . the Kenton District Court granted Respondent's

motion and dismissed the charges.

The district court concluded that KISS 17.545, as applied to Respondent,

violated the ex post facto clauses of the United States and Kentucky its Constitutions. In thorough opinion, the district court found that the

General Assembly had intended KRS 17 .54-5 to be punitive . The district court

also found that, even if KRS 17.545 were not clearly punitive, its effect was

punitive. Upon finding the statute to be unconstitutional as applied to

Respondent, the district court declined to address the remaining constitutional

challenges.

The Commonwealth then moved this Court for certification of law to

determine whether KRS 17.545 is an ex post facto punishment . See Ky. Const. § 115, CR 76.37(10) . We gr-mted certilicatiorl to resolve this important

constitutional issue .`'

III . ANALYS IS

The United States Coils[it_udon wid the Keiit.ucky Constitution, through

their respective ex post facto clauses, ,, prohibit the enactment of any law that

imposes or increases the punishment for criminal acts committed prior to the

law's enactment. The Ex Post. Facto Clause of the United States Constitution

"forbids . . . the States to enact any law `which imposes a punishment for an

act which was not punishable at, the time it, was committed; or imposes

additional punishment to that. then prescribed ."' Weaver v. Graham , 450 U .S.

24, 28 (1981) (quoting Cummins v. Missouri, 71 U .S. (4 Wall.) 277, 325-26

(1867)) .

As a threshold question, for a law to be considered ex post facto, "it must

be retrospective, that is, it must apply to events occurring before its enactment,

and it must disadvantage the offender affected by it." Hyatt, 72 S .W .3d at 571

2 The Indiana Supreme Court recently held that . as applied to those who committed their crimes before the statute was enacted, Indiana's sex offender residency restriction statute constitutes retroactive punishment forbidden by the ex post facto clause of the state's constitution . State v. Pollar -d , 908 N .E.2d 1145 (Ind . 2009) . See also Mikaloff v. Walsh, No . 5 :06-CV-96, 2007 WL 2572268 (N .D . Ohio Sept. 4, 2007) (holding that retroactive application of Ohio's residency restriction statute violates the federal Ex Post Facto Clause). The Mikaloff appeal was dismissed at the State's request, presumably because the Ohio Supreme Court subsequently prohibited retroactive application of the residency restriction statute on grounds that the Ohio legislature had not expressly made the law retroactive . See Hle v. Porter , 882 N.E.2d 899 (Ohio 2008) . But see, e.g., Doe v. Miller , 405 F.3d 700 (8th Cir. 2005) ; State v. Seering, 701 N.W.2d 655 (Iowa 2005); Thompson v . State, 603 S.E .2d 233 (Ga. 2004) ; People v. Leroy, 828 N.E .2d 769 (Ill . App. Ct . 2005); Lee v. State, 895 So. 2d 1038 (Ala . Crim. App. 2004) (all upholding residency restriction statutes against ex post facto challenges) . 3 U .S . CONST . Art. 1, § 10 ; ICY. CONST. § 19(l) . (quoting Weaver, 41-50 U .S. at. 29) . There is iio qtiestion that KRS 17 .545

applies to conduci, by Wspojident that occurred well before the law's

enactment In addition, Resl-.)ojident, is disadvantaged by the law, as it restricts

where he may live. HowevQr, to violate the ex post facto clause, the statute

must also be . punitive M.artirt v. Ctiandl , 122 S.W.3d 540, 547 (Ky. 2003)

(citing California _L-)fpj. of Corr. v. Morales, 514 U .S. 499, 506 n .3 (1995)) .

In determining whether, with regard to those like Respondent, KRS

17 .545 constitutes retroactive punishment forbidden by the ex post facto

clauses, we are gi-iided. by the United States Supreme Court's two-part test

from Smith v. Doe, 538 U .S. 84 (2003) . First., we must determine whether the

legislature intended to establish a civil, nonpunitive, regulatory scheme, or

whether the legislature intended to impose punishment . Id. at 92 (citing

Kansas v. Hendricks, 521 U .S. 346, 361 (1997)) . If the legislature intended to

impose punishment, oti.r inquiry ends . Smith, 538 U.S. at 92 . If, however, the

legislature intended to eriact a civil, nonpunitive, regulatory scheme, then we

must determine "wtiether the statutory scheme is so punitive either in purpose

or effect as to negate the State's intention to deem it `civil." " Id . (quoting

Hendricks, 521 U.S. at 361) (internal quotations and citations omitted) .

A. Whether the General Assembly Intended KRS 17.545 to be Punitive

We must first determine whether the General Assembly intended to

establish a civil, nonpunitive, regulatory scheme, or whether the legislature

intended to impose punishment. In determining the legislature's intent, this

Court "must first ask whether the legislature, in establishing the penalizing mechanism, hidicated either expressly or iiiiplie(Ily a preference for one label or

the other." Smith, 538 U.S. at 93 ((JUoting Hudson v . United States, 522 U .S.

93, 99 (1997)) . Tjht crefore, we look to the General Assembly's expressed and

implied intent . In determining the General Assembly's implied intent, we look ,

to, as discussed in Si -nith, "folther formal attributes of a legislative enactment,

such as the manner of ifs codification or the enforcement procedures it

establishes." 538 U .S. at 94.

We begin by examining the. General Assembly's expressed intent in

enacting KRS 17 .545. The legislative history of House Bill 3 is extremely

sparse. The bill ,was entitled "AN ACT related to sex offenses and the

punishment thereof." 2006 Ky. Acts 182 . J'his title suggests that the General

Assembly int.ended KRS 17 .545 to be punitive. however, while the title of an

act may be used as an a-id in statutory construction, Wheeler & Clevenger Oil

Co ., Inc. v. Washbum, 127 S.W.3d 609, 613 (Ky. 2004), we do not believe that

it should be determinative in this situation.

We therefore look to the General Assembly's implied intent in enacting

KRS 17.545. First, we consider the manner of its codification. Kentucky's

original sex offender residency restrictions, which were codified at KRS 17-495,

were part of the 2000 amendments to Kentucky's Megan's Law . 4 2000 Ky. Acts

401 . In Hyatt v. Commonwealth, this Court, addressing the sex offender

registration portions of our Megan's Law (including the 2000 amendments),

4 KRS Chapter 17 is ,~ntitled "Public Safety ." concluded that those sta,Uh"s "are WRwIly related to the nonpunitive goals of

protecting the safety of the public." 72 SM.3d at 572 .

Second, we look al, the penalties established by KRS 17.545. Violation of

residency restrictions is ~a crime : a Class A misdemeanor for the first. offense

and a class D felony for subsequent of-f -enses . KRS 17 .545(3) . However,

criminal liability attaches only ifthe offender fails to move. This is similar to

the criminal. liability under KRS 17.5 10(11) for failing to register as a sex

offender, which we upheld in Hyatt, 72 S .W.3d at 573 . See MY) Smith, 538

U.S. at 101-02 ("A sex offender who fails to comply with the reporting

requirement may be subjected to a criminal prosecution for that failure, but

any prosecution is a proceeding separate from the individual's original

offense . ?

We conclude that the General Assembly intended KRS 17 .545 to be a

civil, nonpunitive, regulatory scheme . Therefore, we now consider the second

part of the Smith test.

B. Whether RRS 17.545 is Punitive in Purpose or Effect

Because we conclude that the General Assembly did not intend KRS

17 .545 to be punitive, we must now determine "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 Hendricks, 521 U.S. at 361)

(internal quotations and cit;-7dions omit-led) . In making such a determination,

courts are guided by seven factors originally discussed in Kennedy v. Mendoza-

Martine, 372 U .S . 144, 168-69 (1963) . S th, 538 U.S. at 97. As in Stnith . the live factors relevant here are, "whether, in its necessary

operation, the regulatory scl-wine" (1) has been regarded in our history and

traditions as punishment., (2) promotes the traditional aims of punishment, (3)

imposes an affirinative disability or restraint, (4) has a rational connection to a,

nonpunitive purpose, or (5) is excessive with respect to the nonpunitive

purpose. Id.

L Histoxically Rf:rded as Punishment first We address whether the scheme established by KRS 17 .545 has

been regarded in our history and traditions as punishment . Traditionally, the

colonial era practice of banishing an offender from the community has been

regarded as a. form of punishment . Smith, 538 U .S. at 98. Banishment has

been defined as "punishment inflicted upon criminals by compelling them to

quit a city, place, or country, for a specified period of time, or for life ." United

States v. Ju Toy, 198 U.S. 253, 269-70 (1905) .

As the district court noted, courts reviewing sex offender residency

restrictions have. avoided or sidestepped the issue of whether these restrictions

constitute banishment, and "dissenting judges have been far more

intellectually honest concluding that residency restrictions constitute

banishment." While KRS 17 .545 is not identical to traditional banishment,5 it

does prevent the registrant from residing in large areas of the community. It

also expels registrants from their own homes, even if their residency predated

5 It is, of course, not identical to traditional banishment, because the registrant may still return to the house during the day, when children are present, so long as he does not make the house his permanent home.

10 the statute or arriwj] of the school, daycare, or playground. Such restrictions

strike this Court, ;,is decidedly sii-nilar to banishment . We therefore conclude

that the residency restrictioris irt KRS 17 .545 have been regarded in our history

and traditions as punishment .

2. Promotion of the Traditional Aims of Punishment

Next, we address whether KISS 17 .545 promotes the traditional aims of

punishment : retribution and deterrence . Mendoza-Martinet , 372 U .S. at. 168.

E103 17.545 proynotes general det-erreiice, itirough the threat of negative

consequences, i .e. eviction or restriction of where a person may live in the

future . More significant, b.owever, is the statute's retributive effect.

KRS 17 .54-5 makes no individualized determination of the dangerousness

of a particular regis1rant . Even those registrants whose victims were adults are

prohibited from living near ray area whe.re children gather. When a restriction

is imposed equally upon all offenders, with no consideration given to how

dangerous any particular registrant may be to public safety, that restriction

begins to look far more like retribution lor past. offenses than a regulation

intended to prevent future ones . In his concurring opinion in Smith, Justice

Souter expressed Its unease with the absence of individualized risk

assessment:

Ensuring public safet.y is, of course, a fundamental regulatory goal . . . and this objective should be given serious weight in the analyses. But, at the same time, it would be naive to look no further, given pervasive attittides toward sex offenders . . . . The fact that the Art uses past crime. as the touchstone, probably sweeping in a. significant number of people who pose no real threat to the. coi-iiiiiiiiiity, serves to feed suspicion that sojue.thitig more than regulation of saft,,ty is going on; 'kvheri a legislature uses prior convictions to inipose hurdens that outpace the law's stated civil aiiiis, Ilicre is room for serious argument that the ulterior ptirpose is to revisit. past crimes, not. prevent. future oiics .

Smith, 538 U.S. at 108-09 (Settler, J ., concurring) . By imposing restraints

based solely upon prior offewses, KRS 17.545 proynotes and furthers

retribution against sex offetiders I-or t heir past crimes. We therefore conclude

that KRS 17.545 promotes the traditional a-ims of punishment .

3. Affirmative Disabil#Ko Restraint

Next, we address whether IRS 17 .545 imposes an affirmative disability

or restraint. We find it clifficull to iiiiagine that being prohibited from residing

within certain areas does not, qLizilify as an affirmative disability or restraint. In

Hyat , this Court upheld regist .p-amen requirements, noting that registration

does "not place limitations ori the activities of the offender . . . ." 72 S.W.3d at

572 (citing Collie y. State, 710 So . 2d 1000 (Fla. Ct. App. 1998)) . In Smith, the

U.S. Supreme Court found it, significant. that Menders subject to the Alaska

[registration] statute are free to move where they wish and to live and work as

other citizens, wil0h no supealsion." 538 U,S. at IOL

By contrast, KRS 17. 545 _places significant limitations on where a

registrant may live. With this limitation come significant collateral

consequences . As the district court noted, the restrictions could, for example,

"impact where ~m offender's children attend school, access to public

transportation for employment purposes, access to employment opportunities,

12 access to drug, and alcohol refiabilitation programs sand even access to medical

care and resides[i.al nunsYig honk facilities fOr the aging offender."

The registrant, also faces a constant threat of eviction "because there is

no way for him or her to find a permanE"nt Boise in that. there are no

guarantees a school or [other f2cility) . . . will not open within 1,000 feet, of any

given location." State v. I 'ollard , 908 N .R .2d 1 145 at 1150 (Ind. 2009) . As

such, a registrant cannot establish a permanent home . IRS 17.545 clearly

imposes affirmative disabilides and restraints upon registrants.

4. Rational Connection to a Nonpunitive Purpose

We next consider whet-lrwr KRS 17 .545 has a rational connection to a

legitimate nonpunitive publt,:, purpose . The Commonwealth argues that

residency restrictions senx ~, _he nonpunitive purpose of public safety, which is

undoubtedly a legitimate pi-irpose. The question is therefore whether KRS

17.545 bears a rational con _-ecLion to public safety.

KRS 17 .51-5 prohibits registrants from residing (i .e . sleeping at night,

when children are not preset-it) within 1,000 feet of areas where children

congregate, but it does not prohibit registrants from spending all day at a

school, daycare center, or playground (when children are present) . It allows

registered sex offenders to sit. across the street and watch children, and even to

work near children. KR,S 17 .545 sloes not oven restrict an offender from living

with the victim, so long as they live and sleep outside of the prohibited area.

All KRS 17.545 prohibits is residing in a hone within the prohibited zone. It

does not regulate contact with children . It is difficult to see how public safety is enhanced by a registrant, ;iot being allowed (o sleep near a school at. night.,

when children are not present., k)t.it i)cIng allowec-1 to stay there during the day,

when children

KRS 17 .545 is connected to public safety . However, the statute's

inherent flaws prevent that corinectiora trom being "rational." Therefore, we

conclude that. KRIS 17 .545 does, not liavc a rational connection to a nonpunitive

purpose.

5. Exeessive mrith Reject to a hlonpunitive Purpose

Finally, we address whether KRS 17 .545 is excessive with respect to the

nonpunitive purpose of public saffXty . In iiiaking that. determination, we note

the lack of individLEalimd risk :_assessment ., combined with the statute's fluidity.

First, as noted previously, KRS 17 .545 does not, make any type of

individualized as.sessme at as to wti(Aher a particular offender is a threat to

public safety. KRS 17.545 prohibits all registrants---regardless of whether the

registrant's victim was an adult:., teenager', or child, and regardless of whether

the crime was violent.; no.aviolent, or statutory-from living within 1,000 feet of

a school, playground, or daycare facility. There is absolutely no individual

determination.

The Commonwealth correctly points out that a "statute is not deemed

punitive simply because it lacks a close or perfect fit with the nonpunitive aims

it seeks to advance ." Smith, 538 U .S . at 103. In Smith, the U.S. Supreme

_People 6 These same questions were raised by the dissent in e v. Leroy , 828 N.E . 2d 769, 793 (111. App. Ct.) (Kuehn, J., dissenting).

14 Court concluded that individt .jal asscssment was not. necessary for sex offender

registration requirements, aj-id t1mt "IM)e, State's determination to legislate with

respect to convicted sex of1_(_,nd(.,,rs as i't class, rather than require individual

determination of their da.ngeroij sness, does j tot. make the statute a punishment

under the Ex Post Facto Clai-ise ." 1,(. 1 . Sri 104.

In Kansas v. Hendricks, the U .S. Suprenie Court. upheld involuntary civil

commitment of sex offenders vil-to liad completed their period of incarceration .

521 U .S . 346 . 71ie Kansas law at, isstie required individual assessment of

offenders prior to commitment . icy. at 352-53. The Smith court. noted that,

while individual assessment is got . required 1-or sex offender registration, in

Hendricks, "[t]he niagnitude of resbaint, made individual assessment

appropriate ." Sngdth, 538 L.) .S . at 104.

The residei.- icy rt~strictions fOLInd in KRS 1 .7.545 are more onerous than

the registration requirements at issi-je in Hyatt and Smith, but less onerous

than the involuntary, commitment. ire .Hendricks . We believe that the

magnitude of the restraint" in.voNed in residency restrictions is sufficient for a

lack of individua_1 assessment to render the statute punitive.

The record before us does not. reveal whether or not Respondent might be

a threat to children and to public safety . But this is exactly why KRS 17 .545 is

excessive . 7 Given the drastlic consequences of Kentucky's residency

restrictions, and the fact that there is no individual determination of the threat

7 See Pollard, 908 N.E .2d at 1153 ("ElestroUng the residence of offenders based on conduct that may have nothing to do with crimes against children, and without considering whether a particular offender is a danger to the general public, the statute exceeds its non-punitive purposes .") .

15 a particular registrant poses to ptJolic sal-ety, we can only conclude that KRS

17.545 is excessive ,with respect tv the nonrainitive purpose of public safety .

Second, as the district coiirt stated, "It.1he excessiveness of Kentucky's

residency restrictions is fiat her heightened by their fluidity ." While a sex

offender may be permitled one da-y to live in a particular home, he may the

next day find himself* prohibited bY the opening of a school, daycare facility, or

playground . Perhaps even i-nore MiNesorne is the fact that a city could easily

designate an area a playgrotind, and the statute provides no guidance as to

what exactly qualifies as a "playgrotind . -

While such fluidity may provide little problem for registrants in rural

areas of Kentucky", it should be easy to see why this becomes a serious burden

in areas such as Louisville. Lexington, or respondent's home of Northern

Kentucky, th its dozens oftightly clustered municipalities . Furthermore, the

statute places the sole bur&,m on the registrant in determining whether or not

he is in compliance . KRS 17 .545(2) . This fluidity and uncertainty makes KRS

17 .545 excessive xvith respect to the purpose of public safety.

Of the five Smith factors, till dive weigh in favor of concluding that KRS

17.545 is punitive in effect . Therefore, we conclude that KRS 17 .545 is so

punitive in effect as to negate the General Assembly's intention to deem it civil.

M CONCLUSION

Although the General Assembly did not intend KRS 17 .545 to be

punitive, the residency restrictions are so punitive in effect as to negate any

intention to deem them. civil. Therefore, the statute may not constitutionally be

16 applied to ttiose like Respoiidetit :, w'P".io coiiiiili1ted their- crimes prior to July 12,

2006, the effc-cthr(, cl-ile of [he statt..i e . To do so violates the ex post facto

clauses of the thlitc d States ~iizd h:c~nfwky cotistittitions . The law is so

certified.

Cunninghw~ri, i alilc~, Schroder, Scof t . ~arid Veiiters, JJ ., concur.

Abramson, J ., dissents by separate opinion hi which Minton, CA ., joins .

ABRAMS()N, JUSTKT;, DISSENTING : Virtually alone among appellate

courts to consider the issi.ic, the rn

application of legislation forbidding convicted sex offenders from residing near

the schools, day care centers, and playgrounds where potential child victims

congregate . In so doing the aiajor ty has, with respect. to a most difficult social

problem, arrogated to itself! he role of legislator and has substituted its public

policy judgment for that of the General Assembly . Because our democratic

system leaves stt(ch POLICY choiCes to the legislature, and because I agree with

the several other courts than. have held that retroactive sex offender residency

restrictions do riot exceed legislative authority to address vital public safety

concerns, I respectfully diss ?rit .

RE-LEVANT ]FACTS

As the majority notes, since 100.4, when it adopted Kentucky's initial

version of Megan's Law, the General Assembly has engaged in an evolving effort

to address the profoundly serious and vexing problem of sex offenders,

particularly those who oftend against children . As part of this effort, Megan's

Law, or the Sex Offender Registration Act, IRS 1.7.500 to 17.540, requires

17 convicted sex ofknders and offenders against ininors to register their addresses

with the local probation and parole office . In 2000, the General Assembly

sought further to protect. potential cliild victims by forbidding registrants

during the course of their, probation or parole froin residing within 1,000 feet of

day care centers and eleme-n.tary, middle, and high schools. In 2006, the

General Assembly a_gain expandcyd its protect.ivc., efforts by enacting House Bill

3, the legislation. at issue here, whicl-i, irder atio., extends the previously enacted

residential restrictions . The whendad restrictions, currently codified at KRS

17.545, apply to all registrants, not just to probationers and parolees, and add

public playgrounds to the list of protected sites.

Michael Baker, who was convkJcd in 1994 .of third-degree rape and so

came under KRS 17 .51_0's registration requirement, was living within 1,000 feet

of a public playground in Elsmere, Kentucky, when he was notified that he was

in violation of the amended residency restrictions . In February 2007 he was

charged in Kenton District Court with a. class A misdemeanor. Baker

challenged KRS 17.5435 as violative of the federal and state Ex Post Facto

Clauses, constitutional provisions Wat forbid the state from either punishing or

increasing punishment retroactively . By Order entered April 20, 2007, the

district court agreed with Baker and declared the statute's retroactive

application invalid . FUTsuant to Section 115 of our Constitution and CR

76 .37(10), the Ccnirnonwealth then moved this Court for a certification of law

on the following issue: "Whether KISS 17.545 was enacted with the intent to punish sex offenders or is so conse(Inentially excessive as to negate any

inferred contrary intent. t o regiolate sex offender recidivism."

ANALY8JS

Resolution of this case, as fhe majority notes, requires consideration of

the two-part test the LJnited States Supreme Court. has applied t.o ex postfacto

issues in such cases as ansas v. Hendricks, 521 U .S . 346 (1997) (upholding

the retroactive. application o(',. ,t Kansas statute providing for the civil

commitment of dangerous sex offenders) and Smith v. Doe, 538 U.S. 84 (2003)

(upholding the retroacti-ve application of Alaska's version of the Sex Offender

Registration Act) . Under that test., a statute may be deemed punitive, and thus

subject to the Ex Post Plctclb CLILISCS, prohibition against retroactive

punishment, if the legislatui -e evidenced a punitive intent, or, even where the

legislature intended a civil, :-corgi--punitive, regulatory statute, if "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 (citations and internal

quotation marks omitted) . Because courts generally defer to legislative intent,

however, "only the- clearest proqf will sqffice to override legislative intent and

transform what ha-s been denominated a civil remedy into a criminal penalty."

Id. at 92 (emphasis supplied, cilations and internal quotation marks omitted) .

The transformation the majority has worked in this case is contrary to this

deferential standard . 1. The General Assembly Intended KRS 1.7.545 To Be Civil Rather Than Punitive .

The majorit~i correctly concedes that the General Assembly intended KRS

17.545's residence. restrictions to serve a regidatoi-y, non-punitive, public

safety function. Irideed, the residence restrictions have been codified in the

"Public Safety" Chapter oftVic K(.,,ntt1cky Revised Stattites, Chapter 17,

immediately following the Sex Offender Wgistrafion Act, an Act held to be non-

punitive and thus no[ SL1bJM to the Ex Post Facto Clause, in ffyatt v.

Commonwealth, 72 S.W .3d,566 2002) . Nevertheless, the majority

concludes that KI?S 17.54,53's residence restrictions are so punitive in effect as

to belie the General Asseynbly's apparently regulatory intent and to render KRS

17.545 inapplicable to the many registered sex offenders whose crimes were

committed prior -,. .o the statiji te's effective date of July 12, 2006. This ruling

obviously deals a severe blow to the statute's effective-ness and reflects, in my

judgment, this Cotirt's failtire to givc due deference to the General Assembly's

contrary intent.

II. The Effect of KRS 17.545 Is Not So Punitive As To Negate the General Assembly's Intention..

As the majority correctly notes, in assessing the punitive effect of

legislation intended to be nierely regulatory, the United States Supreme Court

has considered the ftAlo-vAng factors : "whether, in its necessary operation, the

regulatory scheme : has been regarded in our history and traditions as a

punishment ; imposes an affirmative disability or restraint; promotes the

traditional aims of punishment, has a rational connection to a nonpunitive

20 purpose; or is excessive wil-ti re-ipect to t 1-iis purpose ." Smith, 538 U.S. at 97.

Several appella.1 e cou its ftave ad(Irc ssed I 1w. retroactive application ofsex

offender residency restrictions in tigfit of tliese factors, and all but one of them

have held that die restrictio--iis, :~oine far itiore severe than Kentucky's 1,000

foot buffer zone, were prin)arily regidatoiN, not punitive, and thus did not

implicate ex posiJi:x1o li:iaiftatiol is. )_)(,e v- . reClle , 405 F-3d 700 (8th Cir. 2005)

(Iowa's 2,000 for t. buffer zone regulatory, iiot punitive) ; State v. SeerjRg, 701

N.W.2d 655 (Iow~-, 2005) (upl-ioldirig 2,000 foot buffer zone) ; Salter v. State, 971

So . 2d 31 (Ala . App . 2007) (approNlrig 2,00(l foot: buffer zone) ; People v. LeRoy,

828 N.E.2d 769 (111. App. 2005) (approving 500 foot. buffer zone) . See also

,Standey v. Town of kyoodf -,, t;.20 01 8 (N .C. App. 2007) (upholding Dan

on entering public pax1c) ; Doe v. Baker, 2006 WL 905368 (N .D. Ga. 2006)

(upholding 1,000 fool.. buffer zone) . See geoerally MajJorie A. Shields, "Validity

of Statutes Imposing Rc,~ sidericy Restrictiotis on Registered Sex Offenders," 25

ALR 6th 227 (2007) . But see State v. Pollar!j, 908 N .E .2d 1145 (Ind . 2009)

(residence restriction dei-:~ ii:-Fied p-unitiive in large part. because it applies without a

particularized assessment of dangerousness} . As these courts have noted,

residence restrid .ions are not a traditional form of punishment and their

punitive effects are not undi-w in light of their important public safety objective .

In my view, the majon.ty's application of the Supreme Court's factors fails at

several points to defer-, as we ar-e obliged to do, to permissible legislative

judgments, and amounts th.us t,,-) Judicial legislating under the guise of

constitutional. analysis.

21 A. Residence Restrictions, Are Not, and Do Not Resemble, Traditional Forms of Punishment .

Contrary to the niajority's assertion, for example, KRS 17.545's residence

restriction does .j -iot resejuble ba,iii ;~,J -irticiit in either purpose or effect .

Banishment, of course, was a mea'pis of'ren -toving dangerous individuals from

the community irk days wlicii prisojiis did not exist. or were inadequate to serve

that purpose . KRS- 17.545, by coritrast, leaves registered sex and child

offenders completely free to live, work, and participate in the community. It

seeks only to lessen the contact, arid lience the opportunity for tragedy,

between known se-x offenders arid soriie oft -le cotliniunity's most vulnerable

members . The statutrz:'s potential r(qufrernent, that a registered sex offender

change residence is not unlike a zoning change with a like effect, a far cry from

banishment or a-rjy other traditional form of punishment.

In other cases it has been argued tbat the buffer zones around protected

sites left little or no residential opportunities available to registrants, and thus

did tend to force registrants outside the community. We have not been referred

to any similar showing in the record before us, however, and the buffer zones

under Kentucky's statute are smaller than those at issue in most of those other

cases . Even in those cases, the. courts have held that because the residence

restrictions left registrants free to visit, work, and otherwise conduct their

affairs throughout the community, they did not resemble banishment in any

but a superficial sense. See, e.g. Doe v. Miller, a. The record here suggests only th4A 13

The majority's c14djus n0wfistanding, llic lacas not been banished .

. Although KR 17.545 1inposes A Burden, That Burden Is Not Retributive .

Baker lia.s been burdened, however. '"fllere is no doubt. but that

residence restrictions are alOrm of disability. That tact alone, however, does

not render KRS 17.54,E punitive. The vast majority ot'civil regulatory statutes

impose some sort of'disability or restraint . The questions, rather, are whether

the disability here serves punitive ends and whether it is so excessive with

regard to the civil enc-,s it. is meant to serx,e as not to be rational. The majority

maintains that KRS J7 .54,5 both punitive and irrational.

It is punitive, t.he aajority contends, because it applies only to convicted

sex offenders . Because i l-zc :regulakon is hosed on a prior offense, the majority

concludes that it an2ounts to additional retribution for that offense . As the

United States Court: (;f Appeals for the Eighth Circuit in Doe v. Miller explained,

however, residence restrictions single out. prior offenders not because their past

conduct is to be liirthcr punished, but because that conduct is an indicator of

future dangerousness, whieh tfe legislature hopes to mitigate . The regulation

looks not to the past. crime, but . t o the danger of future recidivism.

The majority contends that that forward looking focus is belied by the

fact that the regulation does not attempt to distinguish the more from the less

Baker's counsel notes that he moved to Kentucky shortly before the charges were filed when residency restrictions in Reading, Ohio, prohibited him from residing in his former residence there.

2-31 dangerous offenders, iut the i-ecord Before us provides no basis for that

distinction . A s the Ui-titc d States Supreme Court noted six years ago in Smith

v. Doe, there is data suggesting that "[t-)he risk of- recidivism posed by sex

offenders is `frightening and higli .'"' 53(3 U .S . at. 103 . It may well be, of course,

that as more data is gather(-A important dillerences among different types of

offenders will emerge, differ-crwes wtuch could have a bearing on legislative:

choices. That, however, is precisely the sort. of iz-iformation law makers, not

courts, are design(-~d to assess . "M,--re is 1-othing in the record before us which

would preclude the General Assembly from treating sex offenders as a class, or

would compel it to make tlv~ distinctions the majority favors . Neither Baker

nor the majority, in surri, ha.s shown tl~.at. K.RS 17 .545 is a retributive statute,

and most assurcydly they have not slliowi-i retribution by the "clearest proof."

C. KRS 17.545 Reasonably A vaiaces A Vital Public Safety Aim.

The final questions, then, are whether K.RS 17 .545 rationally serves a

valid non-punitive purpose, and whether the disabilities it creates are excessive

in light of that purpose . As our sister courts have held, residence restrictions

have the vital, noii-punit;.i,ve purpose of protecting children from sexual assaults

and other crimes. In Smith, SU ra, the Supreme Court noted that a statute's

"rational connection to a nonpunitive purpose is a `most significant' factor in

our determination that the statute's effects are not punitive." 538 U .S . at 102

(citation omitted) . The majority acknowledges, as it must, the General

Assembly's legitimate, regulatoi-y concern with public safety, but opines that

KRS 17.545 is ;rt hT :f.1io_aa.l means RR,o serve the public safety end because it

24 does not. solve the recidivisiii 1:)roblcin by e1iiiiii - iating any and all opportunities

for a sex offender to reoll'i,, nd .

The majority has applied I'ar too st,rict a stand~ird . The General Assembly

is not obligated to -fashion perfect. staftites, Cornelison v. Commonwealth,, 52

S.W.3d 570 (Ky . 2001), nor is it precluded from addressing part of a. problem

and leaving offier parts 1'6r anol .her day . flolbrook v. f,exmark International

Group, Inc. , 65 S-W.3d 908 (Ky . 2001) . As the I,Jnffed States Supreme Court

stated in Smith, "fal stati-ite is not deerned punitive simply because it. lacks a

close or perfect fit witll the vtonptinitive a.irns it seeks to advance." 538 U.S . at

103. As in Smith, the imprecision the majority relies upon "does not suggest

that [KRS 17.545]'s rionpuriffiVOPUrpose is a sham or mere pretext." Id. at 103

(citation and iriternal quotation marks oiiiitl .ed) . On the contrary, while

residential restrictions cannot eliminate all contacts between potential

recidivists and their potenti -a I child victims, particularly where perpetrator and

victim are related, they are. clearly a rational means of decreasing those

contacts, and thiis the General Assernbly could reasonably believe that they

would enhance the overall safety of children . In denying the reasonableness of

that belief, the majority disrep_rds the General Assembly's right to address

problems in part, rather than comprehensively, and improperly substitutes its

policy judgment for that of the General Assembly .

D. The Disability KR S 1.7.545 Inaposes Is Not Excessive In Light Of Its Vital Purpose .

Under Smith, even if a. regiflation rationally serves a non-punitive

purpose, it may still be deemed punitive if the disability or restraint it imposes

25 is excessive with 1  ti,spcct to t ha l. purpose-. 11- 1e trrajority characterizes KRS

17 .545's disability--its potetltia1 tba( registrants move away from

protected butler zones---a_s "drastic . - ;:.uid deenns that disability excessive for a

couple of reasons. 'hfie disability is excessive i:ir st, according to the majority,

because it applies to all registrants without. am individualized assessment of

future dangeroust-tess. It is also excessive, the majority opines, because it is

"fluid," i.e., becar.ise the prolcctc-d 1.)rpf1er ZOACS can change as schools, day care

centers, and playgrounds open or relecate.

As the nrajarity acl nowlcdges, the Supreme Court rejected the first

argument in Smith v. Doe . t.1pholding the retroactive application of Alaska's

Sex Offender Registration Act-:i_gainst. that. very argument, the Court. explained

that

[P-jhe &x Post Fa,:~to Clause does not, preclude a State from making reasonable categorical judgments that conx,icticn o'~ specil,j.l--d crimes should entail particular regulator~y, consequences . We have upheld against ex post_tack-) challeng(, :; laws imposing regulatory burdens on individuals convicted of crimes without any corresponding ride assessment . Sec De Veau, 363 U .S . at 160 . . . Howh:er, 170 U .S. at 197. . . . As sated in Hawker: "Mubtless, one who has violated the criminal la.ur n -ray thereafter reform and become in fact possessed of a good amoral character. But the legislature of has power in cases of this kind to make a rule: universal application. . . ... IMd. The State's determination to legislate with respect to convicted sex 4

offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a putnishnlent under the Ex Post Facto Clause.

Smith v. Doe, 533 IJ .S at 103-_04 .

26 The majority seeks to Wirj~;iiish Sipit-b by noting that KRS 17 .545

imposes a niore on.crous burden thom IN mandatory registration at issue in

that case. It cites K.ansa.s v. Ilendricks, in which the Supreme Court

upheld the retroactive application of a Kansas statute providing for the civil

commitment of efangerou ')ex () Tiviers. THA s(at.UW passed constitutional

muster, the Court explained, in p;,itri because the statutory scheme included

individualized assessrii-ents of Oangerousuiess . Me Ina ority asserts that the

residence restrictions at issue here art, num, like civil commitment than

mandatory registration, ,.ind dtal. vdtboul. iridividualized assessments of

dangerousness those restdction;~:. are excessive .

The flaw here is that residence restrictions are even less like civil

commitment thaxi they are like banishnient. Registrants are not being confined

against their vrills, they are i-tierely being told not. to reside in certain areas and

at worst to iri,,)v(, from where they ~,Aready reside . The majority characterizes

this imposition as "drastic," but in Oct., having to move, whether as a result of

eviction, foreclosure, eminent doniain, or zoning change, is a common legal

consequence and does not serve. to render the underlying laws punitive. Far

from being involuntarily confined, Raker h.as at most been significantly

inconvenience: I, ~- - in light of the fact. that convicted sex offenders are more

likely to offend against. children thai-i he general population, our sister courts

have found this inconvenience not ;wets. as to remove residence restrictions

such as KRS 17.545 from. the legislature's authority to "legislate with respect to convicted sex. offenders as a class ." .-nil I Pi-'IR S-it 104 . Doe v Miller, U.S.

supra.

The majority also finds the regulatory effect of KRS 17.545 excessive

because the restricted arc-ac, caf) change )s protected sites come and go. We

have not been referred to anything in the record, however, suggesting that

protected sites 64arige with -?, .,jndue 1're(Itiency or that Baker has been subjected

to such changes . Absent thal record, the niaJority's speculation on this point

amounts again to not-hing but, i(S USurpation of the General Assembly's public

policy prerogative.

CONCLUSION

In sum, I strongly ctisagrec with the majority's conclusion that. KRS

17.545 is a punitive statute subJect, to ex post.j4cto limitations. The statute

does not impose a traditional punishnient-, it is forward looking, not retributive;

it rationally serves the vital public safety function of reducing contacts between

potential child victims and poteritiat' sex offense recidivists ; and it does so

without imposing disproponlionate civil disabilities . I find the majority's

strained analysis to the contrary unconkrincing, and I am dismayed both by its

disregard of the nearly unanimous precedent upholding the retroactive

application of similar legislation in other states and by its invasion of the

General Assembly's sphere of expen-ise and authority . Accordingly, I

respectfully dissent.

Minton-, C .J ., joins. COUNSEL FOR PETITIONE

Jack Conway Attorney General

Jason Bradley Moore Assistant Attorney General Office of Criminal_ Appeals Attorney General's Office 1024 Capitol Center Dr. Frankfort, KY 40601

Christopher S. Nordloh 28 West 5th St . Covington, KY 4 1. 011

COUNSEL FOR RESPONDENT:

Bradley Wayne Fox Fox & Scott, PLLC 517 Madison Ave. Covington, KY 41011