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April 22, 2016

Split Kansas Supreme Court, reversing itself in real time, ultimately decides that state's lifetime sex offender registration law is constitutional

In a significant ruling today in the Supreme Court of Kansas, the Court splitting 4-3 upheld the state's sex offender registration laws via an opinion in Kansas v. Petersen-Beard, No. 108,061 (Kansas April 22, 2016) (available here). This opinion has one of the strangest first paragraphs you will ever read:

Henry Petersen-Beard challenges his sentence to lifetime post-release registration as a sex offender pursuant to the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., as cruel and unusual punishment in violation of § 9 of the Kansas Bill of Rights and the Eighth Amendment to the United States Constitution. Because we find that lifetime registration as a sex offender pursuant to KORA is not punishment for either Eighth Amendment or § 9 purposes, we reject Petersen-Beard's argument that it is unconstitutionally cruel and/or unusual and affirm his sentence. In so doing, we overrule the contrary holdings of State v. Redmond, 304 Kan. ___, ___ P.3d ___ (No. 110,280, this day decided), State v. Buser, 304 Kan. ___, ___ P.3d ___ (No. 105,982, this day decided), and Doe v. Thompson, 304 Kan. ___, ___ P.3d ___ (No. 110,318, this day decided).

This local article, headlined "Sex offenders win and lose in unusual rulings by the Kansas Supreme Court," explains how the court issued three rulings on these matters today and then overruled those via its final ruling in Petersen-Beard:

In an apparently unprecedented series of rulings, the Kansas Supreme Court on Friday overruled three of its own Friday opinions regarding state sex offender registration laws. In three separate opinions issued Friday, the court found 2011 changes to the sex offender registry law cannot be applied retroactively to offenders convicted before the law took effect. But then in a fourth opinion also released Friday, the court found that those rulings were incorrect. The highly unusual circumstance appear to be the result of a one-justice change in the makeup of the court.

The panel that decided the three cases concerning the 2011 changes included a senior district court judge, who sided with the majority in the 4-3 decisions.

But for the fourth case, that district judge was replaced by the newest Supreme Court justice, Caleb Stegall.  That case was also decided 4-3, with Stegall casting the deciding vote. The three justices who were part of the majority in the first three opinions became the minority in the fourth opinion.

The upshot was a finding that the Kansas law requiring lifetime registration for convicted sex offenders does not violate federal and Kansas constitutional protections against cruel and unusual punishment.

In the three other cases, the court ruled that offenders convicted of crimes before 2011 could not have their 10-year registration periods extended to 25 years because the 25-year law took affect after they committed their crimes. But those rulings apparently apply only to those three offenders. Others will be governed by the fourth ruling Friday.

April 22, 2016 at 05:27 PM | Permalink

Comments

should have added more quarters to the stare decisis meter

Posted by: Joe | Apr 22, 2016 9:57:28 PM

¿ Stare QUID EST ?

Justice Speedy Gonzales wrote: “…”

Posted by: Docile Jim Brady „ the Nemo Me ♠ Impune Lacessit ♂ in Bend, Oregon ‼ | Apr 23, 2016 2:22:36 PM

¿ Stare QUID EST ?

Justice Speedy Gonzales wrote: “…”

Posted by: Docile Jim Brady „ the Nemo Me ♠ Impune Lacessit ♂ in Bend, Oregon ‼ | Apr 23, 2016 2:22:36 PM

It only goes to show you that there is NO common sense, even in the Supreme Court Justices. A 19 year old and a 13 year old, are teenagers (maybe poorly raised in morals), there are exceptions and circumstances to every rule. Every case is different and should be treated as such!

In my opinion, lifetime anything is wrong. Throw the incompetent decision makers out of Public Service. Most public decision makers are guiltier then the "criminal".

Posted by: LC in Texas | Apr 23, 2016 4:12:06 PM

So my question: what is the legal operation of the first three opinions? Since they were issued first do they still have effect for those three individuals as it is only the legal holding that is overruled OR is it the case that all four have the same effect because they were decided simultaneously?

In other words, which takes precedence: the order in which opinions are issued or in which they are decided?

Posted by: Daniel | Apr 23, 2016 5:20:52 PM

So my question: what is the legal operation of the first three opinions? Since they were issued first do they still have effect for those three individuals as it is only the legal holding that is overruled OR is it the case that all four have the same effect because they were decided simultaneously?

In other words, which takes precedence: the order in which opinions are issued or in which they are decided?

Posted by: Daniel | Apr 23, 2016 5:20:57 PM

If the judges can't make up their minds between themselves as to what the law is, how the hell can the registrants ever know when they are breaking the damn laws! Get rid of the registry. Do it now. It's stupid, pointless and ruins alot more lives than those judges can ever fathom.

Posted by: kat | Apr 24, 2016 5:21:30 PM

This type of procedural cluster reflects poorly on the judges of the Kansas Supreme Court. For the three cases involving the special judge, those litigants have a binding res judicata/collateral estoppel bar to any future claim that they have to register. For all other sex offenders, they are subject to the decision made the full seven-judge court.

Apparently, Justice Steagall has been on the court since December 2014 meaning that these four cases have been percolating for some time. It simply makes no sense why the court did argument on the fourth case after the court was filled while not having re-argument on the first three cases. The implication is that the six judges who did not change made the decision to have this bizarre result despite the appearance problems caused by this weird result.

It should be noted that the disagreement between the judges was not over the requirements of the state statute. It was over the interpretation that the U.S. Supreme Court has placed on "punishment" for 8th amendment and ex post facto laws. In other words, a reasonable registrant would know that the statute required them to register and the issue was whether they had a legal claim to not comply with the clear requirement of the statute.

Posted by: tmm | Apr 25, 2016 11:08:49 AM

I try to read your page religiously, but sometimes, I cannot find it! I hope you can make sure I am able to get it in the future. am glad you cover so many things, especially when it relates to sex offenders and registration.

I am not a professor or student, but concerned citizen in Kansas who follows many legislative and judicial issues. I am involved in the Friends and Families Advisory Committee for the Kansas Sexual Predator Treatment Program. Currently, this program is ready to release as many as seven residents from the program because they have completed treatment. However, the hang up now is "WHO WILL SUPERVISE THEM?"

A Kansas Supreme court Judge made his opinion in June 2017 that stated that the County court services office was not responsible for it and neither was the community corrections or dept. of corrections.

My question now is "Did Kansas ever have any intentions of releasing any of them in the first place?" Maybe, maybe not. According to Brad Base, a therapist at the treatment facilities, it was the decision of the judge and not of the Kansas Department of Aging and Disabilities (which the program falls under). He was told that the 22 page conditional release document would scare any reasonable person from trying to supervise those being released.

22 pages of conditions a person has to follow upon conditional release . Most of the items are repetitive and many include the actual state statute for registration upon release. Why not just put specific things in it as it relates to each individual person and not try to cover so many things?

They have made many positive changes in this program and have started to release many more offenders who have completed therapy, but now the snag s the supervision part. What gives? Who was the Judge that made this stupid decision and what caused him or her to make it?

Our group needs support from people like you because you are not afraid to bring the truth out!

Thanks a lot.

Gary W. Teer
Advocate for those n need

Posted by: Gary Teer | Jul 20, 2017 2:21:25 PM

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