State v. Genson ( 2022 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 121,014
STATE OF KANSAS,
Appellee,
v.
DANIEL EARL GENSON III,
Appellant.
SYLLABUS BY THE COURT
The strict liability character of a KORA registration violation offense bears a
rational relationship to the legitimate government interest of protecting the public from
sexual and other violent offenders and is thus not unconstitutionally arbitrary.
Review of the judgment of the Court of Appeals in 59 Kan. App. 2d 190, 481 P.3d 137 (2020).
Appeal from Riley District Court; GRANT D. BANNISTER, judge. Opinion filed July 29, 2022. Judgment
of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
Caroline M. Zuschek, of Kansas Appellate Defender Office, argued the cause and was on the
brief for appellant.
David Lowden, deputy county attorney, argued the cause, and Barry R. Wilkerson, county
attorney, Bethany C. Fields, deputy county attorney, and Derek Schmidt, attorney general, were on the
brief for appellee.
PER CURIAM: Daniel Earl Genson III challenges the Court of Appeals decision
affirming his conviction for violating the Kansas Offender Registration Act by failing to
register. The issue is whether the Legislature's decision to make the crime of failure to
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register a strict liability felony violates Genson's substantive due process rights. We
conclude it does not.
FACTS AND PROCEDURAL BACKGROUND
After his conviction for attempted voluntary manslaughter, Genson needed to
register as a violent offender under KORA. On August 29, 2017, he did so at the Riley
County Police Department. There, he met investigations secretary Shannon Ascher, who
described his demeanor as "normal." The forms Genson completed informed him he had
to register every May, August, November, and February, and again upon certain
occasions, such as when his address changed. Ascher told Genson about these
requirements. On September 18, Genson came in to report a change of phone number. He
came in again on October 9 to report an address change.
But Genson failed to show up for his registration appointment in November. This
does not, itself, establish a failure to register; Genson had until the end of the month to
fulfill his registration obligations. To help "make sure he [didn't] miss that month,"
Ascher tried to call Genson at his own number and his mother's number. Ascher
ultimately failed to reach him, and Genson did not register in November. But he
registered on December 15 and appeared "normal" at that time.
The State charged Genson with a violation of KORA under K.S.A. 2017 Supp. 22-
4903(a) and (c)(1)(A), a severity level six felony, based on his failure to report in person
during the month of November 2017. Before trial, the parties stipulated Genson had been
convicted of a non-sexual crime requiring registration under KORA. Genson filed a
notice of intent to assert a defense of mental disease or defect with no accompanying
information, but the State objected because K.S.A 2020 Supp. 21-5203(e) eliminated any
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mens rea element for a KORA violation, making it a strict liability offense. In reply,
Genson argued, among other things, that the State's construction would allow for the
conviction of "an individual who falls into a coma during his month of registration and is
physically and mentally incapable of complying with K.S.A. 22-4901 et seq." Genson did
not clearly articulate an argument that his mental illness rendered him physically
incapable of complying with his registration obligations. Nor did Genson's reply raise a
constitutional claim, although he would later develop the same arguments in challenging
the statute's constitutionality. The district court rejected Genson's request for his mental-
disease-or-defect defense, agreeing with the State that mens rea is not an element of the
crime charged. Accordingly, it held Genson's mental health in November of 2017 was
irrelevant.
The case went to jury trial. During trial, the State asked the district court to bar any
mention of Genson's mental health because it was not relevant to the crime charged.
Genson's attorney noted that Genson had been involuntarily committed at Osawatomie
State Hospital for roughly the first half of December 2017, and challenged the
constitutionality of strict liability registration violation offenses. Genson's attorney
asserted Genson had a constitutional right to present his mental health defense, that he
did not "believe that the strict liability statute for KORA is constitutional, period," and
that "there's a constitutional argument as to the statute and as to why mental health issues
should be able to be discussed to the jury." While Genson's counsel referenced physical
incapacity briefly, he did not argue that Genson was physically unable to comply with his
registration obligations by virtue of a mental disease or defect or that Genson's conduct
was involuntary under K.S.A. 2020 Supp. 21-5201(a).
The district court did not rule on the statute's constitutionality but repeated the
substance of its previous written ruling "that generally questions, inquiries, evidence, or
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for that matter argument related to defense of mental defect are not going to be allowed."
As the district court put it, a ruling on the statute's constitutionality "will be the Appellate
Court's function." In its eventual Journal Entry of Jury Trial, the district court
characterized this as a ruling on the State's motion "in limine."
At the end of the State's case, Genson's counsel made these proffers of "what
testimony would have been if this Court had allowed us to go into mental health issues":
• Ascher "is familiar with K.S.A. 22-4904 regarding the duties of parties such
as state hospitals, i.e., Osawatomie State Hospital."
• "This court and the State of Kansas had involuntarily committed Mr.
Genson to Osawatomie" after Genson "actually took himself to a hospital."
• Genson "would have testified that he had not been on his medications in the
month of November, that he became cognizant enough to reach out to his
mother to ask for transportation to go to the hospital because he knew he
needed help. He was unable to reach his mother and Mr. Genson was able
to get himself to the hospital. He would testify he believed that would be
the end of November, beginning of December."
• Genson "would have been in the hospital on December 2nd."
• "He spent his time at Osawatomie up through December 14th. When he
was out of Osawatomie and medicated on his proper treatment plan, he
registered the following day."
Once Genson had been committed in the beginning of December of 2017, his
counsel argued, it was the hospital's responsibility to register him, meaning he was only
"technically incompliant" for "a day to day and a half." Except for the above-referenced
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proffer, Genson introduced only one exhibit: his registration form from December 15,
2017. He put forth no other evidence.
Genson was found guilty. Before sentencing, Genson moved to dismiss the case
because K.S.A. 2020 Supp. 21-5203(e) was "unconstitutional under the Due Process
Clause" as it applied a strict liability standard to a crime of inaction. Genson also filed a
Renewal of Motion for Judgment of Acquittal, Motion for Judgment Notwithstanding the
Verdict, and Motion for a New Trial, in which he argued, inter alia:
"7. Furthermore, the Court ruled that Mr. Genson was barred from presenting any
theory of defense in this case, specifically ruling that evidence concerning Mr. Genson's
mental state during the month of November 2017 was inadmissible and irrelevant.
"8. Mr. Genson proffered evidence that would have established that Mr. Genson's
mental condition during the month of November 2017 was unstable at best, and that Mr.
Genson turned himself into the authorities on December 2, 2017. Law enforcement
officers were so concerned with Mr. Genson's mental condition that he was nearly
immediately transported to Osawatomie State Mental Hospital while the Riley County
Attorney's Office filed a care and treatment case.
"9. The Court's ruling also effectively deprived Mr. Genson of his unquestioned
Constitutional right to testify in his own defense in any meaningful way. Without being
able to testify about what was taking place in his life during November 2017, the reason
he turned himself into the authorities on December 2, 2017, his subsequent admission to
Osawatomie State Hospital, or even his initial registration address in December 2017,
Mr. Genson's potential trial testimony was essentially limited to stating his name for the
record and immediately stepping down to return to the defense table.
"10. The foregoing is a significant and incurable error and was prejudicial to the
defendant, effectively robbing him of any ability to defend himself.
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"11. In addition, the exclusion of Mr. Genson's mental health evidence deprived
the jury of their inherent power to convict only in appropriate circumstances, regardless
of the evidence presented by the State."
Again, Genson raised no argument that his mental illness physically incapacitated
him in November of 2017. Nor did he claim his failure to register was involuntary for
purposes of 2020 Supp. K.S.A. 21-5201(a).
At sentencing, Genson's counsel argued the imposition of strict liability
unconstitutionally "violates KORA offenders' due process rights under the Fifth and
Fourteenth Amendments, essentially their substantive due process rights." The district
court denied this motion. Even so, over the State's objection, the district court granted
Genson both a durational and dispositional departure based on his mental health struggles
and the de minimis nature of his late registration violation.
Genson appealed to the Court of Appeals, raising four issues related to his
inability to present a defense based on his mental health in November 2017. Genson did
not raise any new argument on appeal as to the physical voluntariness of his conduct
under K.S.A. 2020 Supp. 21-5201(a) and did not claim he was physically unable to
register. Instead, Genson argued that K.S.A. 2020 Supp. 21-5203(e) violated his
substantive due process rights by making a KORA violation a strict liability crime. The
panel disagreed, concluding the strict liability character of the offense was not
unconstitutional under a rational basis review. 59 Kan. App. 2d at 200-16. The panel
majority refused to address the rest of Genson's claims on a "prudential" basis because
they were raised for the first time on appeal. 59 Kan. App. 2d at 200.
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In response, Judge Atcheson authored a lengthy dissent criticizing the majority's
substantive due process analysis. Judge Atcheson reasoned that statutes criminalizing
conduct on a strict liability basis impact a fundamental liberty interest when they provide
for "harsh penalties" and argued that such statutes should be subject to strict scrutiny. 59
Kan. App. 2d at 218, 229 (Atcheson, J., dissenting). Within that framework, Judge
Atcheson concluded that the statutes at issue here were not narrowly tailored to advance
any legitimate government objective and were thus unconstitutional and unenforceable.
59 Kan. App. 2d at 230-32 (Atcheson, J., dissenting).
Genson's petition for review to this court raised only three issues. This court
granted review as to Genson's substantive due process claim only, which included a brief
challenge to the panel's refusal to address his newly raised claims under section 1 and
section 5 of the Kansas Constitution Bill of Rights. The court did not grant review of
Genson's challenge to the constitutionality of K.S.A. 2020 Supp. 21-5209 or of his claims
that section 5 of the Kansas Constitution Bill of Rights encompasses a right of jury
nullification. We thus express no opinion on the merits of these arguments.
ANALYSIS
Genson challenges the panel's conclusion that K.S.A. 2020 Supp. 21-5203(e)'s
imposition of strict liability for a KORA registration violation does not offend substantive
due process under the United States Constitution, arguing the statute "infringes on an
individual's liberty interest to remain free from incarceration on a felony offense absent
proof of scienter." Before turning to the merits of Genson's overall substantive due
process claim, we first address the panel's refusal to consider his two other newly raised
due process claims under the Kansas Constitution.
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The panel did not abuse its discretion in refusing to consider Genson's newly raised
claims on appeal.
Before the district court, Genson did not clearly delineate his substantive due
process arguments as arising either under the federal or the Kansas Constitutions. Instead,
Genson mainly framed his arguments around his constitutional right to present a defense
without specifically referencing either the Kansas or federal Constitutions—although, at
sentencing, Genson's counsel invoked "due process rights under the Fifth and Fourteenth
Amendments, essentially their substantive due process rights."
Appellate courts are obligated to address claims properly raised in district court
and later appealed. But if a claim is not effectively raised below, the general rule gives
appellate courts the discretion to refuse consideration of that issue. E.g., State v. Hillard,
313 Kan. 830, 839-40, 491 P.3d 1223 (2021).
Here, Genson concedes some of his claims were newly raised on appeal. This
concession is critical to our assessment of the panel's decision not to consider them: if
the issues were not being raised for the first time on appeal, the panel would not have had
discretion to refuse to consider them. But since these arguments were newly raised before
the panel, the panel could exercise its discretion to consider whether to apply a prudential
exception to the general rule that issues not raised before the district court cannot be
raised for the first time on appeal.
"'A court abuses its discretion when its action is (1) arbitrary, fanciful, or
unreasonable, i.e., if no reasonable person would have taken the view adopted by the
court; (2) based on an error of law, i.e., if the discretion is guided by an erroneous legal
conclusion; or (3) based on an error of fact, i.e., if substantial competent evidence does
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not support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion is based. The party arguing an abuse of discretion bears the burden of
establishing that abuse.'" State v. Aguirre, 313 Kan. 189, 195, 485 P.3d 576 (2021)
(quoting State v. Corbin, 311 Kan. 385, 390, 461 P.3d 38 [2020]).
Genson's newly raised claims are that K.S.A. 2020 Supp. 21-5203(e) violated his
liberty and jury trial interests under section 1 and section 5 of the Kansas Constitution
Bill of Rights. Genson points to no error of fact or law underlying the panel's refusal to
consider these arguments for the first time on appeal, and we do not find that no
reasonable jurist would have similarly refused. We thus affirm the panel's discretionary
refusal to consider these arguments for the first time on appeal.
K.S.A. 2020 Supp. 21-5203(e) does not violate substantive due process.
We turn to Genson's claim that K.S.A. 2020 Supp. 21-5203(e) unconstitutionally
impairs his substantive due process rights by making failure to register a strict liability
felony. We conclude it does not.
Standard of Review
A statute's constitutionality is reviewed de novo on appeal. State v. Cook, 286
Kan. 766, 768, 187 P.3d 1283 (2008). Generally, appellate courts "presume that
legislative enactments are constitutional and resolve all doubts in favor of a statute's
validity." 286 Kan. at 768.
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Preservation
Before we address Genson's claim, we first examine what is not before us. Genson
has not framed his claim as a voluntariness challenge under K.S.A. 2020 Supp. 21-5201
either to this court, the panel, or the district court. His proffer did not suggest that he was
physically incapable of registering in November 2017. Cf. State v. Dinkel, 311 Kan. 553,
560, 465 P.3d 166 (2020). Since he did not pursue such a claim or proffer evidence to
support it, we do not consider whether Genson's mental illness might have impacted his
theoretical ability to claim that his conduct was involuntary—or whether the district court
erred in preventing Genson from presenting mental health evidence in general. Instead,
we turn to the sole issue for which we granted review: whether the strict liability
criminalization of failure to register under KORA violates substantive due process.
Even here, though, Genson's proffer gives us pause. His proffer does not establish
the severity, nature, or genesis of his mental illness, although we can loosely infer that
Genson believes the evidence would show he was not "cognizant" during some of
November of 2017. Nevertheless, Genson's failure to register at any time during the
month of November only became criminal at midnight on December 1, 2017; threadbare
though it was, his proffer could support the inference that he was not cognizant on
November 30, 2017. Thus we reach his claim that K.S.A. 2020 Supp. 21-5203(e) violates
substantive due process by making his failure to register a strict liability felony, despite
any lingering uncertainties concerning the facts about Genson's mental illness in general.
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Discussion
Genson argues K.S.A. 2020 Supp. 21-5203 violates substantive due process
because it impairs his liberty without proof of a culpable mental state (scienter) and
because this crime is a felony that carries a serious potential sentence.
The Legislature has broad authority to craft criminal laws. State v. Thomas, 313
Kan. 660, 664, 488 P.3d 517 (2021). We recently upheld the Legislature's exercise of this
authority in the context of a due process-based challenge to K.S.A. 2020 Supp. 21-
5503(e), which, in most cases involving a rape charge, eliminated the defenses "that the
offender did not know or have reason to know that the victim did not consent to the
sexual intercourse, that the victim was overcome by force or fear, or that the victim was
unconscious or physically powerless." Thomas, 313 Kan. at 660. After noting the absence
of anything "in our law suggesting due process prohibits the Legislature from adopting
strict liability criminal offenses," 313 Kan. at 663, we approvingly quoted the Genson
panel majority's analysis at some length:
"'We begin with the well-established recognition that the Legislature has the
authority to create strict liability crimes:
'That it is within the power of the legislature to forbid the doing of an act
and make its commission criminal, without regard to the intent or knowledge of
the doer, is well established in our jurisprudence. [Citations omitted.]
....
'It is within the power of the legislature to declare an act criminal
irrespective of the intent or knowledge of the doer of the act. In accordance with
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this power, the legislature in many instances has prohibited, under penalty, the
performance of specific acts. The doing of the inhibited act constitutes the crime,
and the moral turpitude or purity of the motive by which it was prompted and the
knowledge or ignorance of its criminal character are immaterial circumstances on
the question of guilt. The only fact to be determined in these cases is whether the
defendant did the act.' [Citations omitted.]" Thomas, 313 Kan. at 664 (quoting
Genson, 59 Kan. App. 2d at 202).
Broad though the Legislature's authority may be, however, it is not unlimited:
"'While the legislature is vested with a wide discretion to determine for itself
what is inimical to the public welfare which is fairly designed to protect the public
against the evils which might otherwise occur, it cannot, under the guise of the police
power, enact unequal, unreasonable or oppressive legislation or that which violates the
Constitution. If the classification provided is arbitrary, . . . and has no reasonable relation
to objects sought to be attained, the legislature transcended the limits of its power in
interfering with the rights of persons affected by the Act.'" Henry v. Bauder, 213 Kan.
751, 753, 518 P.2d 362 (1974) (quoting Tri-State Hotel Co. v. Londerholm, 195 Kan.
748, 760, 408 P.2d 877 [1965]).
Indeed, when a statute deprives an individual of liberty, the Due Process Clause of
the Fourteenth Amendment to the United States Constitution "imposes procedural and
substantive due process requirements." State v. Hall, 287 Kan. 139, 143, 195 P.3d 220(2008). Substantive due process "protects individuals from arbitrary state action," while
procedural due process "protects the opportunity to be heard in a meaningful time and
manner." Creecy v. Kansas Dept. of Revenue, 310 Kan. 454, 462, 447 P.3d 959 (2019).
"Although freedom from physical restraint 'has always been at the core of the liberty
protected by the Due Process Clause from arbitrary governmental action,' . . . that liberty
interest is not absolute." Kansas v. Hendricks, 521 U.S. 346, 356, 117 S. Ct. 2072, 138 L.
12Ed. 2d 501 (1997) (quoting Foucha v. Louisiana, 504 U.S. 71, 80, 112 S. Ct. 1780, 118
L. Ed. 2d 437 [1992]).
The United States Supreme Court has been "'reluctant to expand the concept of
substantive due process'" beyond "those fundamental rights and liberties which are,
objectively, 'deeply rooted in this Nation's history and tradition,' . . . and 'implicit in the
concept of ordered liberty,' such that 'neither liberty nor justice would exist if they were
sacrificed[.]'" Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 138 L.
Ed. 2d 772 (1997). So litigants raising substantive due process claims must set forth "a
'careful description' of the asserted fundamental liberty interest"—largely because "the
Fourteenth Amendment 'forbids the government to infringe . . . "fundamental" liberty
interests at all, no matter what process is provided, unless the infringement is narrowly
tailored to serve a compelling state interest.'" 521 U.S. at 721. Thus, Genson's claim can
only succeed if he shows K.S.A. 2020 Supp. 21-5203(e) impairs a fundamental liberty
interest or otherwise arbitrarily deprives him of a non-fundamental liberty interest.
Genson's claim that K.S.A. 2020 Supp. 21-5203(e)'s imposition of strict criminal
liability violates his substantive due process rights rests on the interpretation and
synthesis of various comments set forth in numerous cases decided by the United States
Supreme Court and this court across the decades. But the Supreme Court has never
declared that the legislative criminalization of conduct on a strict liability basis violates
substantive due process. Many cases discussing strict liability crimes focus on questions
of statutory interpretation, rather than claimed violations of due process. See, e.g., United
States v. X-Citement Video, Inc., 513 U.S. 64, 66, 78, 115 S. Ct. 464, 130 L. Ed. 2d 372(1994); Staples v. United States, 511 U.S. 600, 617-18, 114 S. Ct. 1793, 128 L. Ed. 2d
608 (1994); United States v. U.S. Gypsum Co., 438 U.S. 422, 436, 98 S. Ct. 2864, 57 L.
Ed. 2d 854 (1978); Morissette, 342 U.S. 246, 261-63, 72 S. Ct. 240, 96 L. Ed. 28813
(1952). In each case, the Court considered whether the lack of an explicit mens rea
element in the definition of a crime conveyed a legislative intent to criminalize conduct
on a strict liability basis; in each case, the Court found there was no such legislative
intent. None of them directly addressed due process. Moreover, although Morissette
explored "public welfare" offenses for which no mens rea element was required, the
Supreme Court later clarified it "has never articulated a general constitutional doctrine of
mens rea." Powell v. State of Tex., 392 U.S. 514, 535, 88 S. Ct. 2145, 20 L. Ed. 2d 1254(1968); Morissette, 342 U.S. at 254-61.
This case poses no question of statutory interpretation. The statute's plain language
is clear that the crime of failure to register does not contain an accompanying mens rea
element. We need not resort to legislative history or canons of construction to clarify the
Legislature's intent, as the above-noted cases needed to.
Even so, the Supreme Court's caselaw further reflects a particular concern with the
criminalization of otherwise innocent conduct on a strict liability basis. E.g., X-Citement
Video, Inc., 513 U.S. at 72 ("Morissette, reinforced by Staples, instructs that the
presumption in favor of a scienter requirement should apply to each of the statutory
elements that criminalize otherwise innocent conduct."). No such concern is present here.
An individual cannot commit the crime of failing to register under KORA without a duty
to register—and without being given notice of that duty, as required by K.S.A. 2020
Supp. 22-4904(a)(1). See State v. Juarez, 312 Kan. 22, 25, 470 P.3d 1271 (2020). We
therefore find these cases unpersuasive.
Kansas cases discussing the "public welfare" doctrine have also generally turned
on questions of statutory interpretation. E.g., State v. Lewis, 263 Kan. 843, 857-58, 953
P.2d 1016 (1998) (driving while a "habitual violator" statute construed to include a mens
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rea element); State v. Mountjoy, 257 Kan. 163, 177, 891 P.2d 376 (1995) (statute
criminalizing unauthorized practice of the healing arts required no criminal intent under
the public welfare doctrine).
Yet the Legislature's authority to craft laws remains subject to constitutional
constraints. Cf. State ex rel. Smith v. Fairmont Foods Co., 196 Kan. 73, 81, 410 P.2d 308(1966) ("The case of United States v. Balint [258 U.S. 250, 252, 42 S. Ct. 301, 66 L. Ed.
604 (1922)], acknowledged the public welfare doctrine and found that, under proper
circumstances, the absence of the scienter requirement in a criminal statute does not
constitute a violation of due process." [Emphasis added.]).
Other courts have grappled with whether a crime, even serious crime, must have
an element of scienter to be constitutional. Most address the criminality of action rather
than the failure to act, but the seriousness of the crime alone does not make the
imposition of strict liability unconstitutional. "It is well established that a criminal statute
is not necessarily rendered unconstitutional because its definition of a felony lacks the
element of scienter." United States v. Engler, 806 F.2d 425, 433 (3d Cir. 1986) (citing,
for example, Lambert v. California, 355 U.S. 225, 228, 78 S. Ct. 240, 242, 2 L. Ed. 2d
228 [1957]). Moreover, "[t]he Supreme Court has indicated that the due process clause
may set some limits on the imposition of strict criminal liability, but it has not set forth
definite guidelines as to what those limits might be." Engler, 806 F.2d at 433.
With this context in mind, much of Genson's argument relies on an extrapolation
of Morissette's discussion of "public welfare" offenses. We are not convinced that
Morissette sets forth a general substantive due process right to a scienter requirement,
however. Only once has the Supreme Court found a due process violation in a strict
liability ordinance. Lambert, 355 U.S. at 229-30. Coincidentally, Lambert involved an
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ordinance criminalizing the failure to comply with a registration requirement, as we have
here. Still, the Lambert majority found that ordinance unconstitutional as applied because
the defendant had no notice of the statutorily created duty which criminalized his
nonperformance—not facially unconstitutional because the ordinance lacked a scienter
element. See Lambert, 355 U.S. at 227. Assessing Lambert's argument that the ordinance
violated her due process rights, the majority wrote:
"We must assume that appellant had no actual knowledge of the requirement that
she register under this ordinance, as she offered proof of this defense which was refused.
The question is whether a registration act of this character violates due process where it is
applied to a person who has no actual knowledge of his duty to register, and where no
showing is made of the probability of such knowledge.
"We do not go with Blackstone in saying that 'a vicious will' is necessary to
constitute a crime, for conduct alone without regard to the intent of the doer is often
sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude
elements of knowledge and diligence from its definition. But we deal here with conduct
that is wholly passive—mere failure to register. It is unlike the commission of acts, or the
failure to act under circumstances that should alert the doer to the consequences of his
deed. The rule that 'ignorance of the law will not excuse' is deep in our law, as is the
principle that of all the powers of local government, the police power is 'one of the least
limitable.' On the other hand, due process places some limits on its exercise. Engrained in
our concept of due process is the requirement of notice. Notice is sometimes essential so
that the citizen has the chance to defend charges. Notice is required before property
interests are disturbed, before assessments are made, before penalties are assessed. Notice
is required in a myriad of situations where a penalty or forfeiture might be suffered for
mere failure to act. . . . These cases involved only property interests in civil litigation. But
the principle is equally appropriate where a person, wholly passive and unaware of any
wrongdoing, is brought to the bar of justice for condemnation in a criminal case.
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"Registration laws are common and their range is wide. Many such laws are akin
to licensing statutes in that they pertain to the regulation of business activities. But the
present ordinance is entirely different. Violation of its provisions is unaccompanied by
any activity whatever, mere presence in the city being the test. Moreover, circumstances
which might move one to inquire as to the necessity of registration are completely
lacking. . . . We believe that actual knowledge of the duty to register or proof of the
probability of such knowledge and subsequent failure to comply are necessary before a
conviction under the ordinance can stand. . . . Where a person did not know of the duty to
register and where there was no proof of the probability of such knowledge, he may not
be convicted consistently with due process. Were it otherwise, the evil would be as great
as it is when the law is written in print too fine to read or in a language foreign to the
community. [Citations omitted.]" (Emphases added.) Lambert 355 U.S. at 227-30.
Lambert does not answer the question before us. First, notice—the core concern in
Lambert—is traditionally associated with procedural due process, rather than substantive
due process. See, e.g., State v. Juarez, 312 Kan. 22, 24, 470 P.3d 1271 (2020); State v.
Robinson, 281 Kan. 538, 548, 132 P.3d 934 (2006) ("The basic elements of procedural
due process are notice and an opportunity to be heard at a meaningful time and in a
meaningful manner."). That distinction is somewhat muddied since Lambert involved
notice of wrongdoing, rather than notice of a hearing. Still, here the evidence shows
Genson did know about his KORA registration obligations—at least during September
and October 2017, and on December 15 as well. Genson, 59 Kan. App. 2d at 205. And
even if Genson's stifled theory of defense might have hinged on the notion his mental
illness obviated knowledge of his obligations during some part of November 2017—
which he did not clearly argue—we cannot read his proffer to support such a claim.
Consequently, Genson cannot rely on Lambert to establish a fundamental liberty interest
here.
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In the end, Genson is left with no persuasive legal authority to indicate the strict
liability criminalization of his failure to register violates a fundamental liberty interest
simply because such failure is classified as a felony.
We turn then to the question of arbitrariness. Like the Court of Appeals majority,
we believe the rational basis test is the appropriate metric by which to evaluate this:
"When a statute does not implicate fundamental rights, we ask whether it is
'rationally related to legitimate government interests.' 'The rational basis standard is a
very lenient standard. All the court must do to uphold a legislative classification under
the rational basis standard is perceive any state of facts which rationally justifies the
classification.' In such cases, the government has no obligation to produce evidence or
empirical data to sustain the rationality of a statutory classification. '[A]ny reasonably
conceivable state of facts' will suffice to satisfy rational basis scrutiny. The burden falls
on the party attacking the statute as unconstitutional to 'negative every conceivable basis
which might support it.'
....
"Genson fails to show that K.S.A. 2019 Supp. 21-5203(e) bears no reasonable
relationship to the permissible legislative objective noted above. Rather, KORA meets
the rational basis test because it is in the interest of government to protect the public from
sexual and other violent offenders. [Citations omitted.]" Genson, 59 Kan. App. 2d at 212-
13.
The majority's reasoning on this point is sound, and we affirm it in full. We thus
conclude Genson has failed to show that K.S.A. 2020 Supp. 21-5203(e)'s strict liability
criminalization of KORA registration violations violates his substantive due process
rights.
18
Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed.
***
WILSON, J., concurring: I concur in the result reached by the majority on the
narrow question before us. But I write separately to highlight the narrowness of this path.
Specifically, I concur in the majority's reasoning on the sole issue for which we
granted review. I find little direct support in either Morissette or Lambert for the notion
that substantive due process requires, as a matter of fundamental right, a legislature to
include a scienter element in the definition of a crime—even a felony crime such as this.
See Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288 (1952);
Lambert v. California, 355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957). Further,
while I note the dissent's position that the Legislature has no "legitimate interest in
making a previous violent offender's failure to register a strict liability crime[,]" (Rosen,
J., dissenting), slip op. at 29, I cannot see a pathway in the case at bar to severing K.S.A.
2020 Supp. 21-5203(e)'s application to violent offenders from its application to sex
offenders. For these reasons, I too conclude that Genson has not established a substantive
due process violation arising solely out of K.S.A. 2020 Supp. 21-5203(e).
This court also affirmed the Court of Appeals majority's decision not to address
two claims based on the Kansas Constitution for the first time on appeal. Because I agree
that the majority did not abuse its discretion in refusing to consider these newly raised
issues, I also concur in our court's decision not to reach them.
19
Nevertheless, I am troubled by the panel majority's conclusion that Genson was
not prevented from presenting any defense because "a defendant who cannot rely on a
lack of a mens rea may still have a defense that the voluntary act or omission requirement
of the actus reus was not met" under K.S.A. 2020 Supp. 21-5201. State v. Genson, 59
Kan. App. 2d 190, Syl. ¶ 4, 481 P.3d 137 (2020). I acknowledge that Genson has not
claimed that his failure to register was an involuntary act or omission, which, for
purposes of K.S.A. 21-5201, we have interpreted to mean "'[a] willed bodily movement.'"
State v. Dinkel, 311 Kan. 553, 560, 465 P.3d 166 (2020). We have also expressly drawn a
distinction between the voluntary act requirement, or actus reus, and a culpable mental
state, or mens rea:
"A voluntary act is an intentional bodily movement, i.e., the intention to lift an arm or
move a leg in a certain direction—whatever bodily movement is needed to complete the
act requirement. In contrast, intentional mental culpability is the conscious desire to
engage in conduct of a certain nature or produce a certain result—i.e., to desire injurious
movement or a slap or a kick." Dinkel, 311 Kan. at 560.
But this interpretation, when combined with K.S.A. 2020 Supp. 21-5203(e) and
K.S.A. 2020 Supp. 21-5209, creates a potential Catch-22 for defendants who suffer a
physical incapacity that arises by virtue of a mental disease or defect—for instance, a
hypothetical defendant suffering from a condition such as catatonia. Indeed, under K.S.A.
2020 Supp. 21-5209, a "mental disease or defect" defense is available only if it could
establish that a defendant "lacked the culpable mental state required as an element of the
crime charged." Kahler v. Kansas, 589 U.S. ___, 140 S. Ct. 1021, 1026, 206 L. Ed. 2d
312 (2020) ("In other words, Kansas does not recognize any additional way that mental
illness can produce an acquittal."). Under an earlier statutory analogue of K.S.A. 21-
20
5209, this court recognized that evidence of a mental disease or defect that "did not tend
to demonstrate that he was unable to form the requisite intent to commit the crimes
charged" could not support a defense of mental disease or defect "and was therefore
irrelevant." State v. Pennington, 281 Kan. 426, 438, 132 P.3d 902 (2006). And we have
held that "culpable mental state" refers only to the statutorily defined terms in K.S.A.
2020 Supp. 21-5202(a): "intentionally," "knowingly," or "recklessly"; it does not include
premeditation, which is not a statutorily established culpable mental state. State v.
McLinn, 307 Kan. 307, 320-23, 409 P.3d 1 (2018).
As the majority has recognized, K.S.A. 2020 Supp. 21-5203(e) provides no
culpable mental state for Genson's crime. Under Pennington, the statutory elimination of
a culpable mental state from the elements of a crime would also eliminate the defense of
mental disease or defect as to that crime and, thus, would render evidence of a
defendant's mental illness irrelevant in all strict liability crimes. That a defendant's mental
illness might result in physical incapacity may not currently create a statutory corridor
permitting the consideration of mental health evidence in strict liability crimes. I find the
constitutional implications of such a restriction troubling, although—because they are not
before us—they do not impact my agreement with the majority's overall conclusion.
Although Genson briefly hinted at a physical incapacity argument to the district
court—without either clearly articulating a voluntariness basis for the claim or proffering
evidence to support such a claim—he has long since abandoned it, if indeed it was ever
present to begin with. E.g., Titterington v. Brooke Ins., 277 Kan. 888, Syl. ¶ 3, 89 P.3d
643 (2004) ("A point raised only incidentally in a party's brief but not argued in the brief
is deemed abandoned."). And because this court declined to grant review of Genson's
challenge to the constitutionality of K.S.A. 2020 Supp. 21-5209, the implications of the
21
potential elimination of a voluntariness defense to strict liability crimes—when physical
incapacity arises as a byproduct of a mental illness—are beyond our purview.
In sum: Genson did not argue that he was physically incapable of registering in
November of 2017; his proffer did not support such a claim; and even if he had proffered
and argued it at the district court, he has now abandoned it. Consequently, despite my
reservations, I find no error in the district court's ruling and concur in the majority's
result.
STEGALL and WALL, JJ., join the foregoing concurring opinion.
***
ROSEN, J., dissenting: Genson has asked this court to decide whether the
Legislature has unconstitutionally trampled a deeply rooted fundamental right. Instead of
considering this issue in full, the majority punts the question and justifies the targeted
legislation as a valid exercise of police power. I cannot agree. Had our full court accepted
its responsibility to uphold the Constitution, I suspect the analysis would show the
Legislature violated the substantive due process protections of the Due Process Clause
when it made the failure to register a strict liability crime for violent offenders. This is in
line with Judge Atcheson's dissent—one that I find compelling. But even if I overlook the
majority's failure to appropriately grapple with the substantive due process principles at
play, I believe Genson is entitled to relief on other grounds. The majority concludes that
the Legislature acted within its permissible realm because the targeted legislation
survives rational basis review. But the majority offered no rational basis analysis.
Through proper consideration, it is clear the Legislature acted outside of its police power.
22
Finally, I disagree with this court's decision to deny review on Genson's argument that the
Legislature has unconstitutionally abolished the insanity defense. I find the claim
troubling and the arguments in support persuasive. For these reasons, I dissent.
Substantive Due Process
The majority accurately captures the framework guiding the Legislature's use of
police power and the constraints that substantive due process places on that power. The
Legislature may enact laws, and such legislation is generally subject to rational basis
review. But if the legislation infringes on certain fundamental rights, it must withstand
strict scrutiny. This is because the substantive guarantee of the Due Process Clause
"provides heightened protection against government interference with certain
fundamental rights and liberty interests." Washington v. Glucksberg, 521 U.S. 702, 720,
117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997). Consequently, when "challenged state action
implicate[s] a fundamental right," the Constitution requires "more than a reasonable
relation to a legitimate state interest to justify the action." Glucksberg, 521 U.S. at 721-
22. The legislation is forbidden "'unless the infringement is narrowly tailored to serve a
compelling state interest.'" Glucksberg, 521 U.S. at 721 (quoting Collins, at 302).
To decide whether targeted legislation has crossed the line triggering a higher
level of scrutiny, a court decides whether it implicates a fundamental right or liberty that
is "'deeply rooted in this Nation's history and tradition' . . . and 'implicit in the concept of
ordered liberty,' such that 'neither liberty nor justice would exist if they were sacrificed.'"
Glucksberg, 521 U.S. at 721 (quoting Moore v. City of E. Cleveland, Ohio, 431 U.S. 494,
503, 97 S. Ct. 1932, 52 L. Ed. 2d 531 [1977]; Palko v. Connecticut, 302 U.S. 319, 325,
326, 58 S. Ct. 149, 152, 82 L. Ed. 288 [1937]). When it undertakes this analysis, the court
looks "primarily to eminent common-law authorities (Blackstone, Coke, Hale, and the
23
like), as well as to early English and American judicial decisions." Kahler v. Kansas, 589
U.S.__, 140 S. Ct. 1021, 1027, 206 L. Ed. 2d 312 (2020) (citing Montana v. Egelhoff, 518
U.S. 37, 44-45, 116 S. Ct. 2013, 135 L. Ed. 2d 361 [1996)] [plurality opinion]; Patterson
v. New York, 432 U.S. 197, 202, 97 S. Ct. 2319, 53 L. Ed. 2d 281 [1977]). The court must
answer "whether a rule of criminal responsibility is so old and venerable—so entrenched
in the central values of our legal system—as to prevent a State from ever choosing
another." Kahler, 140 S. Ct. at 1028. In identifying the right at stake, the description must
be "careful." Glucksberg, 521 U.S. at 721.
The majority declines to consider whether there is a fundamental interest at stake.
Instead, it turns to rational basis because neither the Supreme Court nor any other court
has previously declared the interest at stake here to be fundamental. In doing so, the
majority abdicates its responsibility to ensure state action has not impermissibly
encroached upon a fundamental right. "Upon the state courts, equally with the courts of
the Union, rests the obligation to guard, enforce, and protect every right granted or
secured by the constitution of the United States and the laws made in pursuance thereof,
whenever those rights are involved in any suit or proceeding before them." Robb v.
Connolly, 111 U.S. 624, 637, 4 S. Ct. 544, 28 L. Ed. 542 (1884); see also Arizona v.
Evans, 514 U.S. 1, 8, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995) ("State courts, in
appropriate cases, are not merely free to—they are bound to—interpret the United States
Constitution."); Trainor v. Hernandez, 431 U.S. 434, 443, 97 S. Ct. 1911, 52 L. Ed. 2d
486 (1977) ("'state courts have the solemn responsibility equally with the federal courts'
to safeguard constitutional rights").
In brushing aside its responsibility, the majority avoids explicitly acknowledging
that the Supreme Court has never considered whether the interest Genson advances
today—being free from conviction of a serious, high-level felony punishable by lengthy
24
imprisonment based on inaction and without any knowledge of the facts that make one's
conduct criminal—is a deeply rooted fundamental interest that deserves substantive due
process protection. Without any command from the Supreme Court that it is not, and, in
light of our decision to grant review of the constitutional question, we should uphold our
duty to interpret and apply Supreme Court precedent and answer the question before us.
Had the majority addressed this question, I believe a correct analysis would likely
show that the targeted legislation implicates a deeply rooted fundamental right. The
Legislature has made a "violent offender's" failure to register a felonious crime
punishable by up to 20 years in prison. See K.S.A. 2020 Supp. 22-4903; K.S.A. 2020
Supp. 21-6804. A longer lapse subjects the failed registrant to additional criminal charges
and a longer sentence. See K.S.A. 2020 Supp. 22-4903. I see this as constitutionally
problematic. The requirement that mental culpability accompany behavior deemed
criminal is a concept embedded deep in our legal history. Blackstone wrote "to constitute
a crime against human laws, there must be first, a vicious will; and secondly, an unlawful
act consequent upon such vicious will." II Blackstone, Commentaries on the Laws of
England, Book 4, chapter II. The United States Supreme Court has acknowledged this
profoundly entrenched legal principle. In Morissette v. United States, 342 U.S. 246, 250-
51, 72 S. Ct. 240, 96 L. Ed. 288 (1952), the Court wrote:
"The contention that an injury can amount to a crime only when inflicted by
intention is no provincial or transient notion. It is as universal and persistent in mature
systems of law as belief in freedom of the human will and a consequent ability and duty
of the normal individual to choose between good and evil. A relation between some
mental element and punishment for a harmful act is almost as instinctive as the child's
familiar exculpatory 'But I didn't mean to,' and has afforded the rational basis for a tardy
and unfinished substitution of deterrence and reformation in place of retaliation and
vengeance as the motivation for public prosecution. Unqualified acceptance of this
25
doctrine by English common law in the Eighteenth Century was indicated by
Blackstone's sweeping statement that to constitute any crime there must first be a 'vicious
will.'"
It is true the law has loosened its grip on mental culpability requirements in some
cases—those regarding "'public welfare' or 'regulatory offenses.'" Staples v. United
States, 511 U.S. 600, 606, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994). These typically
"involve statutes that regulate potentially harmful or injurious items." Staples, 511 U.S.
at 607. The Court has reasoned that sanctions for noncompliance with these statutes
serve as an effective means of regulating potentially dangerous industries and are usually
"light . . . , such as fines or short jail sentences." Staples, 511 U.S. at 616. The Court has
pointed out that public welfare offenses "belong to a category of another character, with
very different antecedents and origins" than the criminal offenses to which the common
law has always attached a mens rea requirement. Morissette, 342 U.S. at 252.
The offense at issue in this case is not a public welfare crime. It is not a product of
the Legislature's responsibility to regulate dangerous "industries, trades, properties or
activities." Morissette, 342 U.S. at 254. Like the failure to register offense in Lambert, it
severely criminalizes conduct that "is wholly passive—mere failure to register." Lambert
v. People of the State of California, 355 U.S. 225, 228, 78 S. Ct. 240, 2 L. Ed. 2d 228(1957). Moreover, it triggers serious penalties, unlike those in the public welfare realm.
The offense is therefore more akin to those of which our legal history has relentlessly
demanded a culpable mental state. This suggests to me that K.S.A. 2020 Supp. 21-
5203(e) implicates a fundamental right deserving of substantive due process protection.
Had the majority of this court correctly considered the issue, I think it would have
decided the same.
26
If K.S.A. 2020 Supp. 21-5203(e) indeed implicates a deeply rooted liberty, it must
withstand strict scrutiny to survive. Reno v. Flores, 507 U.S. 292, 302, 113 S. Ct. 1439,
123 L. Ed. 2d 1 (1993). In Kansas, stringent registration requirements were first adopted
to allow law enforcement and the public to track the whereabouts of convicted sex
offenders. Thus, the Legislature initially required only sex offenders to register and
justified the requirement with a contention specific to sex offenders alone—that they
reoffend at a high rate thereby creating a threat to the public at large. Then, several years
later, the Legislature added violent offenders to the list of those required to register but
left no legislative history offering a similar—or any—justification. Considering the
absence of any reason for this expansion, there is no compelling justification for the
inclusion of violent offenders. Furthermore, even assuming it serves to protect the public,
the means used to enforce it—strict liability and harsh penalties—cannot be characterized
as narrowly tailored to realize that result. There is no evidence that the harsh penalties
and absent mens rea requirements are the least restrictive means of accomplishing this
goal. KORA originally required a culpable mental state to prove failure to register and
carried less severe, misdemeanor penalties. The State has offered nothing to suggest these
were ineffective.
To me, this conclusively shows that the targeted legislation would crumble under
strict scrutiny. In fact, it convinces me that the majority of this court erred when it
concluded the legislation survives even rational basis review.
The rational basis barometer measures whether legislative action is "rationally
related to legitimate government interests." Washington v. Glucksberg, 521 U.S. 702,
728, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997). The majority of this court adopts the
Court of Appeals majority's analysis on this point, which reasoned that a court must
uphold legislation so long as it can come up with "'any reasonably conceivable state of
27
facts'" to "rationally justif[y] the classification." Genson, 59 Kan. App. 2d at 212. The
panel majority offered a state of facts it found conceivable, opining that "it is in the
interest of government to protect the public from sexual and other violent offenders" and
that "[k]nowing where offenders live enables the public to assess the risk and take
appropriate protective measures." 59 Kan. App. 2d at 210, 213.
I agree that the government has an interest in protecting the public from predatory
sexual and violent offenses and, accordingly, from would-be offenders. But I fail to see
how this equates to an interest in protecting the public from only those people who
previously committed violent offenses. For a court to accept this position would be to
turn mere conjecture—once a violent offender, always a violent offender—into a legal
conclusion void of any supporting evidence. I am shocked and stunned by such reckless
speculation, especially because our historical system of criminal justice explicitly
counsels against it. "[A] presumption of innocence . . . is the undoubted law, axiomatic
and elementary, and its enforcement lies at the foundation of the administration of our
criminal law." Coffin v. United States, 156 U.S. 432, 453, 15 S. Ct. 394, 39 L. Ed. 481(1895).
And the Legislature's original justification for KORA—that sex offenders reoffend
at a comparatively high rate—fails to bridge the gap between previous violent offender
and future violent offender. Not only does heavy suspicion hang over this representation,
see Huffman, Moral Panic and the Politics of Fear: The Dubious Logic Underlying Sex
Offender Registration Statutes and Proposals for Restoring Measures of Judicial
Discretion to Sex Offender Management, 4 Va. J. Crim. L. 241, 260 (2016) (citing studies
to show "[r]esearch confirms that sex offenders pose no greater danger to the public than
other criminal offenders"), the claim says nothing about recidivism among violent
offenders. See also State v. N.R., 314 Kan. 98, 125, 495 P.3d 16 (2021) (Rosen, J.,
28
dissenting) (discussing study showing recidivism of sex offenders is "remarkably low").
Without even an unsupported suggestion from the Legislature that violent offenders
recidivate at a high rate, I will not presume they do. Nor will I use such a presumption to
justify state-sanctioned ostracization and exclusion of those impacted from any sense of a
normal existence. See N.R., 314 Kan. at 124 (Rosen, J., dissenting) (discussing severe
and onerous effects of registration and its "effective banishment").
Now I turn more to the point. Because I do not believe the Legislature has a
reasonable interest in "protecting" people from individuals who previously committed
violent offenses when the Legislature has made no suggestion or connection that these
individuals are likely to reoffend, I see no legitimate interest in making a previous violent
offender's failure to register a strict liability crime. The purpose seems clear—to
eliminate most defenses to the crime, thereby reducing the prosecution's burden to secure
a conviction for failing to register. But if the registration requirement itself serves no
legitimate purpose, a simpler route to conviction is similarly void of any rational basis.
Consequently, I would strike down K.S.A. 2020 Supp. 21-5203(e) as it relates to violent
offenders.
Finally, I briefly acknowledge the compelling argument that the Legislature has
violated substantive due process by eliminating the insanity defense. K.S.A. 2020 Supp.
21-5209 makes evidence of mental disease or defect a defense to only the mental
culpability requirements of a crime. K.S.A. 2020 Supp. 21-5203(e) eliminates mental
culpability requirements for the offense of failing to register. Thus, together, these
statutes abolish the mental disease or defect defense, or, in other words, the insanity
defense. Because "[f]ew doctrines are as deeply rooted in our common-law heritage as
the insanity defense," Kahler v. Kansas, 589 U.S. ___, 140 S. Ct. 1021, 1039, 206 L. Ed.
292d 312 (2020) (Breyer, J., dissenting), this suggests the statutory scheme violates
substantive due process.
In Kahler, the United States Supreme Court concluded K.S.A. 2020 Supp. 21-
5209, on its own, does not violate due process. See 140 S. Ct. at 1037. It reasoned that the
deeply entrenched insanity defense was still available in some capacity under the Kansas
legislative scheme because the defendant could offer it to show they did not harbor the
requisite mental state of a crime. Kahler, 140 S. Ct. at 1030-31. It also observed that it
could be considered by a judge at sentencing. Kahler, 140 S. Ct. at 1031. But when a
statute eliminates a mental culpability requirement, mental disease or defect is wholly
irrelevant to innocence or guilt. I believe this is constitutionally suspect. Thus, I would
have granted review on Genson's claim arguing the same and given it full consideration
after opportunity for further briefing and argument.
In sum, I find it highly likely that K.S.A. 2020 Supp. 21-5203(e)'s applicability to
violent offenders violates substantive due process because it implicates deeply rooted
fundamental rights and fails to withstand strict scrutiny. But I think Genson's claim wins
the day on a principle more basic than this. I believe the legislation fails to withstand
even rational basis, and is, consequently, outside of the Legislature's police power. I
would strike K.S.A. 2020 Supp. 21-5203(e) as it applies to violent offenders. Finally, I
would have granted review of Genson's claim that the legislative scheme further violates
substantive due process by abolishing the insanity defense and fully considered the claim.
STANDRIDGE, J., joins the foregoing dissenting opinion.
30