State v. Masterson ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,257
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JEFFREY DOUGLAS MASTERSON,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; DAVID B. DEBENHAM, judge. Opinion filed August 26,
2022. Affirmed.
Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ISHERWOOD and COBLE, JJ.
PER CURIAM: Jeffrey Douglas Masterson challenges his term of registration under
the Kansas Offender Registration Act (KORA). He argues that KORA is facially
unconstitutional because it violates the compelled speech doctrine, contrary to the First
Amendment to the United States Constitution. Because the registration requirement does
not violate the First Amendment, we affirm.
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FACTS
Masterson pleaded guilty to three counts of sexual exploitation of a child, in
violation of K.S.A. 2016 Supp. 21-5510(a)(2). The trial court sentenced Masterson to 105
months in prison. The trial court ordered Masterson to register under KORA for 25 years
because of his convictions.
Masterson appealed his prison sentence. This court vacated his sentences and
remanded to the trial court for resentencing. State v. Masterson, No. 121,153, 2020 WL
4722997 (Kan. App. 2020) (unpublished opinion).
At resentencing, Masterson objected to the KORA registration requirement. The
trial court imposed a new sentence, again stating the KORA registration requirement.
Masterson timely appeals.
ANALYSIS
Does KORA violate the compelled speech doctrine under the First Amendment?
Masterson argues that KORA is facially unconstitutional, impermissibly infringing
on his rights guaranteed under the First Amendment. The State first argues that this court
should not reach the merits of Masterson's claim because he did not raise it in his prior
appeal when he challenged his prison sentence and this court remanded for resentencing.
Second, the State argues that Masterson's claim fails on the merits because he is not
compelled to speak. The State of Kansas, not Masterson, publishes the offender registry
and the State argues that this does not constitute compelled speech. Because KORA does
not violate the First Amendment, we affirm the registration requirement.
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Where an appeal is taken from a conviction or sentence imposed, the judgment of
the appellate court is res judicata as to all issues actually raised. Issues that could have
been raised are also deemed waived. State v. Salary, 309 Kan. 479, 481-82, 437 P.3d 953(2019) (citing State v. Kingsley, 299 Kan. 896, 901, 326 P.3d 1083 [2014]).
In Masterson's reply brief, he argues that the State is wrong to call the argument
res judicata. Issues, however, which could have been raised, but were not, are waived.
See State v. Bailey, 315 Kan. 794, 802-03, 510 P.3d 1160 (2022). Masterson's previous
appeal raised only the issue of his prison sentence. Thus, the State's argument that he
waived the issue of his KORA registration has some legal support. Nevertheless, the
State's res judicata argument is composed of only two sentences: "Here, if Masterson had
wished to challenge his offender registration, he should have done so in his initial appeal.
His failure to do so means the issue is barred by res judicata."
However, as Masterson has pointed out in his reply brief, res judicata principles
are to be given a flexible and common-sense construction because they are rooted in "the
requirements of justice and sound public policy." Herington v. City of Wichita, 314 Kan.
447, 458, 500 P.3d 1168 (2021). Thus, before res judicata can be invoked, there must be a
"'case-by-case analysis that moves beyond a rigid and technical application to consider
the fundamental purposes of the rule in light of the real substance in the case at hand.'"
314 Kan. at 459. Here, the State's res judicata argument is so brief and incomplete that it
crosses the line into conclusory.
As an example, in its brief, the State has failed to back up its res judicata argument
by showing that it meets the fundamental purposes to justify applying issue preclusion in
this case. See Bailey, 315 Kan. at 802-03. Also, the State's argument is conclusory
because it is inadequately grounded. Its argument is not self-evidently true. Thus, the
State has failed to demonstrate why we should accept its argument as true. For this
reason, we reject this argument.
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Masterson contends that we should apply an exception and consider his claim
because: (1) it involves only a question of law on proved or admitted facts and is
determinative of the case and (2) consideration of the claim is necessary to prevent the
denial of fundamental rights. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068(2015). Masterson acknowledges that the decision to review claims under this exception
is prudential. State v. Gray, 311 Kan. 164, 170, 459 P.3d 165 (2020). But he succinctly
asserts, in his brief, that failing to reach the issue would be imprudent because KORA
effectively denies Kansans the full extent of their rights. Masterson offers no explanation
for why he failed to raise this issue in his first appeal. Because Masterson raises this issue
for the first time on appeal, we need not address this issue. Gray, 311 Kan. at 170.
Nevertheless, if we were to address this issue, it is legally and fatally flawed.
Masterson notes that KORA requirements compel him to provide comprehensive
personal information including details of previous offenses, a current photograph, and
work and home addresses. He argues that this is compelled speech because, when the
government publishes this information, he maintains that he has been forced to take part
in government speech: "And the message of this speech is clear: 'this person is
dangerous; you should be cautious around him; and here is where you can find him.'" But
federal courts have already held that the government's action does not violate the
compelled speech doctrine. Davis v. Thompson, No. 19-3051-SAC, 2019 WL 6327420, at
*3 (D. Kan. 2019) (unpublished opinion) (citing United States v. Arnold, 740 F.3d 1032,
1034 [5th Cir. 2014] and United States v. Fox, 286 F. Supp. 3d 1219, 1221-24 [D. Kan.
2018]).
The First Amendment generally prohibits the government from requiring private
citizens to speak its messages. See Agency for Int'l Development v. Alliance for Open
Society Int'l, Inc., 570 U.S. 205, 213, 133 S. Ct. 2321, 186 L. Ed. 2d 398 (2013). In
Board of Education v. Barnette, 319 U.S. 624, 642, 63 S. Ct. 1178, 87 L. Ed. 1628(1943), the United States Supreme Court held that it is unconstitutional to compel public
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school children to pledge allegiance to the United States flag. In Wooley v. Maynard, 430
U.S. 705, 717, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977), the United States Supreme Court
held that it is unconstitutional for New Hampshire to compel drivers to display the state
motto "Live Free or Die" on their license plates. The compelled speech doctrine relies on
the general proposition that the government may not compel a citizen to speak its
message.
The State argues that the Kansas Sex Offender Registry website is government
speech. The State contends that the government is speaking for itself, rather than
compelling Masterson to speak. The State contends that the government broadcasts its
own message, meaning that KORA does not violate Masterson's First Amendment rights
under the compelled speech doctrine. For this proposition, the State cites Riley v.
National Federation of Blind, 487 U.S. 781, 108 S. Ct. 2667, 101 L. Ed. 2d 669 (1988).
The Riley Court held that some of North Carolina's fundraising disclosure
requirements violated the First Amendment because they compelled speech. But Riley
only applied to financial disclosures from the fundraiser litigants to the public, not
financial reporting requirements to the government. That is, the government could not
compel the fundraisers to give information to the public, but the public could get the
same information by different means. "For example, as a general rule, the State may itself
publish the detailed financial disclosure forms it requires professional fundraisers to file.
This procedure would communicate the desired information to the public without
burdening a speaker with unwanted speech during the course of a solicitation." 487 U.S.
at 800.
The Riley Court still allowed the government to collect information directly from
the fundraiser. The State argues that Masterson reporting his information to the
government is like the detailed financial disclosure forms that fundraisers had to file with
North Carolina. The State argues that the government may not compel Masterson to
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speak to the public himself. But the government may collect information from Masterson
and the government may include that information when it speaks.
Thus, the State disagrees that the compelled speech doctrine even applies. The
State draws the distinction that the government does not compel Masterson to speak its
message when it publishes the offender registry, but rather the government is speaking
about Masterson as its topic. The State argues that the government is allowed to speak its
own messages. Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200,
207, 135 S. Ct. 2239, 192 L. Ed. 2d 274 (2015) ("When government speaks, it is not
barred by the Free Speech Clause from determining the content of what it says.").
Masterson disagrees, saying that the speech is his own and the offender registry is "truly
only a megaphone broadcasting the compelled speech." But we need not decide this point
because federal courts have provided highly persuasive guidance along different lines.
Assuming without deciding that the government is compelling Masterson to speak, the
requirement is narrowly tailored to a compelling government interest.
Offender registries require a narrow category of information for the compelling
government interest of protecting the public from harm. Fox, 286 F. Supp. 3d at 1223-24.
For example, Robert Wesley Fox moved to dismiss a charge of failing to register as
required under the Sex Offender Registration and Notification Act (SORNA), the federal
equivalent to KORA. Fox challenged the indictment as unconstitutional, presenting the
same compelled speech argument that Masterson presents here. The United States
District Court for the District of Kansas held that strict scrutiny applied to his claim. A
statute satisfies strict scrutiny if the government can show that it narrowly tailored the
statute to serve compelling governmental interests. See Reed v. Town of Gilbert, 576 U.S.
155, 171, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015). The Fox court held that the
government had a compelling interest in protecting the public from sex offenders and
offenders against children, recognizing that convicted sex offenders are much more likely
than any other type of offender to be rearrested for a new sexual offense. Fox, 286 F.
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Supp. 3d at 1223 (citing McKune v. Lile, 536 U.S. 24, 33, 122 S. Ct. 2017, 153 L. Ed. 2d
47 [2002]). The Fox court also held that SORNA is narrowly tailored because it requires
reporting of a limited amount of information which is directly related to the goals of the
statute. Fox, 286 F. Supp. 3d at 1224. In short, the registry requirement does not mean
that the government has unlawfully compelled the offender's speech. See Arnold, 740
F.3d at 1035.
Like the federal sex offender registry (SORNA), the Kansas offender registry has
also passed a strict scrutiny test in federal court. As an example, Robert Davis challenged
the constitutionality of KORA in the United States District Court for the District of
Kansas. Davis, 2019 WL 6327420, at *1. The Davis court reviewed KORA under the
same strict scrutiny test. 2019 WL 6327420, at *3. Also, the court held that KORA serves
the same compelling government interest as SORNA and is also narrowly tailored to that
purpose. 2019 WL 6327420, at *3. So we adopt the rule in Davis that KORA does not
violate the First Amendment to the United States Constitution.
For the preceding reasons, we affirm.
Affirmed.
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