Commonwealth of Kentucky v. Michael Baker ( 2009 )

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 wh72 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 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
A.L.R. 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 1352
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