Commonwealth of Kentucky v. Michael Baker

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

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

COMMONWEALTH OF KENTUCKY PETITIONER

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

MICHAEL BAKER RESPONDENT

OPINION OF THE COURT

CERTIFYING THE LAW

I . INTRODUCTION

The question of law to be answered is whether KRS 17.545, which restricts where registered sex offenders may live, may be applied to those who committed their offenses prior to July 12, 2006, the effective date of the statute. We hold that it may not. Even though the General Assembly did not intend the statute to be punitive, the residency restrictions are so punitive in effect as to negate any intention to deem them civil. Therefore, the retroactive application of KRS 17 .545 is an ex post facto punishment, which violates Article 1, Section 10 of the United States Constitution, and Section 19(1) of the Kentucky Constitution .

II. BACKGROUND

Kentucky's Sex Offender Residency Restrictions

On July 29, 1994, seven-year-old Megan Kanka disappeared from her 1 neighborhood in Hamilton Township, New Jersey . Soon after, police discovered

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

offenses. New Jersey enacted wh<tt became known as "Megan's Law," requiring

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

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

Crimes Against Children and Sexually Violent Offenders Registration Act,

which conditioned certain law enforcement funding on states enacting their

own version of Megan's Law.

Like every other state, Kentucky has enacted a version of Megan's Law. The General Assembly first enacted sex offender registration requirements in

1994, amending them in 1996 and again in 2000. "1`he 2000 amendments to our Megan's Law also included residency restrictions on sex offenders as a condition of their probation or parole. That restriction, codified at KRS 17 .495, read as follows:

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

This Court upheld the registration provisions of Kentucky's Megan's Law in Hyatt v. Commonwealth, 72 S.W.3d 566 (Ky. 2002). The next year, the United States Supreme Court. uhlield Alaska's sex offender registration statute against an ex post. facto challenge ill Smith v. Dock, 538 U.S. 84 (2003) . 1

In 2006, the General Assembly enacted House Bill 3, which amended Kentucky's residency restrictions to their current form. 2006 Ky. Acts 182 . The current residency restriction statute, effective July 12, 2006, codified at KRS 17.545, reads as follows:

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

(2) For purposes of this section :

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

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

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

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

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

(4) Any registrant residing within one thousand (1,000) feet of' a high school, middle school, 1 Doe subsequently challenged the registration statute in state court on state law grounds, with the Alaska Supreme Court holding that the statute cannot be applied retroactively. Doe v. State, 189 P.3d 999 (Alaska 2008) .

elcment,,=-,iry school, presel- iool, publicly owned 131aygroiind, or licensed day (, are facility on July 12, 2006, shall move. and comply with this section within ninety (90) days of July 12, 2006, and thereafter, shall be subject to the penalties set forth tinder subsection (3) of this section .

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

While the original residency restrict ion statute applied only to those on probation, parole, or otl-ier form of supervised release, the current statute applies to all registrants regardless of probation or parole status . In addition, KRS 17 .545 adds publicly owned playgrounds to the list of prohibited areas, and measures the distance from the property line as opposed to the wall of a building. The statute also places the burden on the registrant to determine whether he is in compliance . Violation ofthe residency restriction is a Class A misdemeanor for the first offense, and ;a Class D felony for subsequent offenses . B. Procedural His jr,V

On March 31, 1995, Respondent Michael Baker entered a guilty plea to a charge of third-degree rape in Kenton Circuit Court. In addition to Respondent's probated sentence of five years imprisonment, pursuant to the version of KRS 17.520 in effect at the time. Respondent was required to register as a sex offender until March 27, 2010 .

Respondent subsequently lived in Reading, Ohio with his family . However, the City of Rea-ding's sex offender residency restrictions forced Respondent to niove back to Kentucky . On February 2, 2007, Respondent resided in Elsinere, Kentucky and was arrested and charged with violating KRS 17 .545 for living within 1,000 feet of East Covered Bridge Park, allegedly a public playground .

According to Respondent, the Division of Probation and Parole provided him with a link to a. website to determine whether he was in compliance with KRS, 17.545 . The website did not show East. Covered Bridge Park and the surrounding area to be a prohibited zone .

In Kenton District Court, Respondent challenged KRS 17 .545 on a number of constitutional grounds and moved to dismiss the charges against him. On April 20, 2007 . the Kenton District Court granted Respondent's motion and dismissed the charges.

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

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

General Assembly had intended KRS 17 .54-5 to be punitive . The district court also found that, even if KRS 17.545 were not clearly punitive, its effect was punitive. Upon finding the statute to be unconstitutional as applied to Respondent, the district court declined to address the remaining constitutional challenges.

The Commonwealth then moved this Court for certification of law to determine whether KRS 17.545 is an ex post facto punishment . See Ky. Const.

§ 115, CR 76.37(10) . We gr-mted certilicatiorl to resolve this important

constitutional issue .`'

III . ANALYS IS

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

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

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

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

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

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

additional punishment to that. then prescribed ."' Weaver v. Graham , 450 U .S. 24, 28 (1981) (quoting Cummins v. Missouri, 71 U .S. (4 Wall.) 277, 325-26

(1867)) .

As a threshold question, for a law to be considered ex post facto, "it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Hyatt, 72 S .W .3d at 571

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

(quoting Weaver, 41-50 U .S. at. 29) . There is iio qtiestion that KRS 17 .545 applies to conduci, by Wspojident that occurred well before the law's enactment In addition, Resl-.)ojident, is disadvantaged by the law, as it restricts where he may live. HowevQr, to violate the ex post facto clause, the statute

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

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

In determining whether, with regard to those like Respondent, KRS 17 .545 constitutes retroactive punishment forbidden by the ex post facto clauses, we are gi-iided. by the United States Supreme Court's two-part test from Smith v. Doe, 538 U .S. 84 (2003) . First., we must determine whether the legislature intended to establish a civil, nonpunitive, regulatory scheme, or whether the legislature intended to impose punishment . Id. at 92 (citing Kansas v. Hendricks, 521 U .S. 346, 361 (1997)) . If the legislature intended to impose punishment, oti.r inquiry ends . Smith, 538 U.S. at 92 . If, however, the legislature intended to eriact a civil, nonpunitive, regulatory scheme, then we must determine "wtiether the statutory scheme is so punitive either in purpose or effect as to negate the State's intention to deem it `civil." " Id . (quoting Hendricks, 521 U.S. at 361) (internal quotations and citations omitted) . A. Whether the General Assembly Intended KRS 17.545 to be Punitive

We must first determine whether the General Assembly intended to establish a civil, nonpunitive, regulatory scheme, or whether the legislature intended to impose punishment. In determining the legislature's intent, this Court "must first ask whether the legislature, in establishing the penalizing

mechanism, hidicated either expressly or iiiiplie(Ily a preference for one label or

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

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

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

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

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

establishes." 538 U .S. at 94.

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

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

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

punishment thereof." 2006 Ky. Acts 182 . J'his title suggests that the General Assembly int.ended KRS 17 .545 to be punitive. however, while the title of an act may be used as an a-id in statutory construction, Wheeler & Clevenger Oil Co ., Inc. v. Washbum, 127 S.W.3d 609, 613 (Ky. 2004), we do not believe that it should be determinative in this situation.

We therefore look to the General Assembly's implied intent in enacting KRS 17.545. First, we consider the manner of its codification. Kentucky's original sex offender residency restrictions, which were codified at KRS 17-495, were part of the 2000 amendments to Kentucky's Megan's Law . 4 2000 Ky. Acts 401 . In Hyatt v. Commonwealth, this Court, addressing the sex offender registration portions of our Megan's Law (including the 2000 amendments), 4 KRS Chapter 17 is ,~ntitled "Public Safety ." concluded that those sta,Uh"s "are WRwIly related to the nonpunitive goals of protecting the safety of the public." 72 SM.3d at 572 .

Second, we look al, the penalties established by KRS 17.545. Violation of residency restrictions is ~a crime : a Class A misdemeanor for the first. offense and a class D felony for subsequent of-f -enses . KRS 17 .545(3) . However, criminal liability attaches only ifthe offender fails to move. This is similar to the criminal. liability under KRS 17.5 10(11) for failing to register as a sex offender, which we upheld in Hyatt, 72 S .W.3d at 573 . See MY) Smith, 538 U.S. at 101-02 ("A sex offender who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual's original offense . ?

We conclude that the General Assembly intended KRS 17 .545 to be a civil, nonpunitive, regulatory scheme . Therefore, we now consider the second part of the Smith test. B. Whether RRS 17.545 is Punitive in Purpose or Effect

Because we conclude that the General Assembly did not intend KRS 17 .545 to be punitive, we must now determine "whether the statutory scheme is so punitive either in purpose or effect as to negate the State's intention to deem it 'civil.'" Smith, 538 U.S. at 92 (quoting Hendricks, 521 U.S. at 361) (internal quotations and cit;-7dions omit-led) . In making such a determination, courts are guided by seven factors originally discussed in Kennedy v. Mendoza-Martine, 372 U .S . 144, 168-69 (1963) . S th, 538 U.S. at 97.

As in Stnith . the live factors relevant here are, "whether, in its necessary operation, the regulatory scl-wine" (1) has been regarded in our history and traditions as punishment., (2) promotes the traditional aims of punishment, (3) imposes an affirinative disability or restraint, (4) has a rational connection to a, nonpunitive purpose, or (5) is excessive with respect to the nonpunitive purpose. Id.

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

been regarded in our history and traditions as punishment . Traditionally, the colonial era practice of banishing an offender from the community has been regarded as a. form of punishment . Smith, 538 U .S. at 98. Banishment has been defined as "punishment inflicted upon criminals by compelling them to quit a city, place, or country, for a specified period of time, or for life ." United States v. Ju Toy, 198 U.S. 253, 269-70 (1905) .

As the district court noted, courts reviewing sex offender residency restrictions have. avoided or sidestepped the issue of whether these restrictions constitute banishment, and "dissenting judges have been far more intellectually honest concluding that residency restrictions constitute banishment." While KRS 17 .545 is not identical to traditional banishment,5 it does prevent the registrant from residing in large areas of the community. It also expels registrants from their own homes, even if their residency predated

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

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, 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 <aa-e pY esent .E 3

KRS 17 .545 is connected to public safety . However, the statute's inherent flaws prevent that corinectiora trom being "rational." Therefore, we conclude that. KRIS 17 .545 does, not liavc a rational connection to a nonpunitive purpose.

5. Exeessive mrith Reject to a hlonpunitive Purpose

Finally, we address whether KRS 17 .545 is excessive with respect to the nonpunitive purpose of public saffXty . In iiiaking that. determination, we note the lack of individLEalimd risk :_assessment ., combined with the statute's fluidity.

First, as noted previously, KRS 17 .545 does not, make any type of individualized as.sessme at as to wti(Aher a particular offender is a threat to public safety. KRS 17.545 prohibits all registrants---regardless of whether the registrant's victim was an adult:., teenager', or child, and regardless of whether the crime was violent.; no.aviolent, or statutory-from living within 1,000 feet of a school, playground, or daycare facility. There is absolutely no individual determination.

The Commonwealth correctly points out that a "statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance ." Smith, 538 U .S . at 103. In Smith, the U.S. Supreme

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

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

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

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

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

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

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

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

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

offenders prior to commitment . icy. at 352-53. The Smith court. noted that, while individual assessment is got . required 1-or sex offender registration, in Hendricks, "[t]he niagnitude of resbaint, made individual assessment appropriate ." Sngdth, 538 L.) .S . at 104.

The residei.- icy rt~strictions fOLInd in KRS 1 .7.545 are more onerous than the registration requirements at issi-je in Hyatt and Smith, but less onerous than the involuntary, commitment. ire .Hendricks . We believe that the

magnitude of the restraint" in.voNed in residency restrictions is sufficient for a lack of individua_1 assessment to render the statute punitive.

The record before us does not. reveal whether or not Respondent might be a threat to children and to public safety . But this is exactly why KRS 17 .545 is excessive . 7 Given the drastlic consequences of Kentucky's residency restrictions, and the fact that there is no individual determination of the threat

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

a particular registrant poses to ptJolic sal-ety, we can only conclude that KRS 17.545 is excessive ,with respect tv the nonrainitive purpose of public safety .

Second, as the district coiirt stated, "It.1he excessiveness of Kentucky's residency restrictions is fiat her heightened by their fluidity ." While a sex offender may be permitled one da-y to live in a particular home, he may the next day find himself* prohibited bY the opening of a school, daycare facility, or playground . Perhaps even i-nore MiNesorne is the fact that a city could easily designate an area a playgrotind, and the statute provides no guidance as to what exactly qualifies as a "playgrotind . -

While such fluidity may provide little problem for registrants in rural areas of Kentucky", it should be easy to see why this becomes a serious burden in areas such as Louisville. Lexington, or respondent's home of Northern Kentucky, th its dozens oftightly clustered municipalities . Furthermore, the statute places the sole bur&,m on the registrant in determining whether or not he is in compliance . KRS 17 .545(2) . This fluidity and uncertainty makes KRS 17 .545 excessive xvith respect to the purpose of public safety.

Of the five Smith factors, till dive weigh in favor of concluding that KRS 17.545 is punitive in effect . Therefore, we conclude that KRS 17 .545 is so punitive in effect as to negate the General Assembly's intention to deem it civil.

M CONCLUSION

Although the General Assembly did not intend KRS 17 .545 to be punitive, the residency restrictions are so punitive in effect as to negate any intention to deem them. civil. Therefore, the statute may not constitutionally be

applied to ttiose like Respoiidetit :, w'P".io coiiiiili1ted their- crimes prior to July 12, 2006, the effc-cthr(, cl-ile of [he statt..i e . To do so violates the ex post facto clauses of the thlitc d States ~iizd h:c~nfwky cotistittitions . The law is so certified.

Cunninghw~ri, i alilc~, Schroder, Scof t . ~arid Veiiters, JJ ., concur. Abramson, J ., dissents by separate opinion hi which Minton, CA ., joins .

ABRAMS()N, JUSTKT;, DISSENTING : Virtually alone among appellate courts to consider the issi.ic, the rn<ijority has invalidated the retroactive application of legislation forbidding convicted sex offenders from residing near the schools, day care centers, and playgrounds where potential child victims congregate . In so doing the aiajor ty has, with respect. to a most difficult social problem, arrogated to itself! he role of legislator and has substituted its public policy judgment for that of the General Assembly . Because our democratic system leaves stt(ch POLICY choiCes to the legislature, and because I agree with the several other courts than. have held that retroactive sex offender residency restrictions do riot exceed legislative authority to address vital public safety concerns, I respectfully diss ?rit .

RE-LEVANT ]FACTS

As the majority notes, since 100.4, when it adopted Kentucky's initial version of Megan's Law, the General Assembly has engaged in an evolving effort to address the profoundly serious and vexing problem of sex offenders, particularly those who oftend against children . As part of this effort, Megan's Law, or the Sex Offender Registration Act, IRS 1.7.500 to 17.540, requires convicted sex ofknders and offenders against ininors to register their addresses with the local probation and parole office . In 2000, the General Assembly sought further to protect. potential cliild victims by forbidding registrants during the course of their, probation or parole froin residing within 1,000 feet of day care centers and eleme-n.tary, middle, and high schools. In 2006, the General Assembly a_gain expandcyd its protect.ivc., efforts by enacting House Bill 3, the legislation. at issue here, whicl-i, irder atio., extends the previously enacted residential restrictions . The whendad restrictions, currently codified at KRS 17.545, apply to all registrants, not just to probationers and parolees, and add public playgrounds to the list of protected sites.

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

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

of a public playground in Elsmere, Kentucky, when he was notified that he was in violation of the amended residency restrictions . In February 2007 he was charged in Kenton District Court with a. class A misdemeanor. Baker challenged KRS 17.5435 as violative of the federal and state Ex Post Facto Clauses, constitutional provisions Wat forbid the state from either punishing or increasing punishment retroactively . By Order entered April 20, 2007, the district court agreed with Baker and declared the statute's retroactive application invalid . FUTsuant to Section 115 of our Constitution and CR 76 .37(10), the Ccnirnonwealth then moved this Court for a certification of law on the following issue: "Whether KISS 17.545 was enacted with the intent to punish sex offenders or is so conse(Inentially excessive as to negate any inferred contrary intent. t o regiolate sex offender recidivism."

ANALY8JS

Resolution of this case, as fhe majority notes, requires consideration of the two-part test the LJnited States Supreme Court. has applied t.o ex postfacto issues in such cases as ansas v. Hendricks, 521 U .S . 346 (1997) (upholding the retroactive. application o(',. ,t Kansas statute providing for the civil commitment of dangerous sex offenders) and Smith v. Doe, 538 U.S. 84 (2003) (upholding the retroacti-ve application of Alaska's version of the Sex Offender Registration Act) . Under that test., a statute may be deemed punitive, and thus subject to the Ex Post Plctclb CLILISCS, prohibition against retroactive punishment, if the legislatui -e evidenced a punitive intent, or, even where the legislature intended a civil, :-corgi--punitive, regulatory statute, if "the statutory scheme is so punitive either in purpose or effect as to negate [the State's] intention. to deem it 'civil."' Smith ., 538 U .S. at 92 (citations and internal quotation marks omitted) . Because courts generally defer to legislative intent, however, "only the- clearest proqf will sqffice to override legislative intent and transform what ha-s been denominated a civil remedy into a criminal penalty." Id. at 92 (emphasis supplied, cilations and internal quotation marks omitted) . The transformation the majority has worked in this case is contrary to this deferential standard .

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

The majorit~i correctly concedes that the General Assembly intended KRS 17.545's residence. restrictions to serve a regidatoi-y, non-punitive, public safety function. Irideed, the residence restrictions have been codified in the "Public Safety" Chapter oftVic K(.,,ntt1cky Revised Stattites, Chapter 17, immediately following the Sex Offender Wgistrafion Act, an Act held to be non-punitive and thus no[ SL1bJM to the Ex Post Facto Clause, in ffyatt v. Commonwealth, 72 S.W .3d,566 2002) . Nevertheless, the majority concludes that KI?S 17.54,53's residence restrictions are so punitive in effect as to belie the General Asseynbly's apparently regulatory intent and to render KRS 17.545 inapplicable to the many registered sex offenders whose crimes were committed prior -,. .o the statiji te's effective date of July 12, 2006. This ruling obviously deals a severe blow to the statute's effective-ness and reflects, in my judgment, this Cotirt's failtire to givc due deference to the General Assembly's contrary intent.

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

As the majority correctly notes, in assessing the punitive effect of legislation intended to be nierely regulatory, the United States Supreme Court has considered the ftAlo-vAng factors : "whether, in its necessary operation, the regulatory scheme : has been regarded in our history and traditions as a punishment ; imposes an affirmative disability or restraint; promotes the traditional aims of punishment, has a rational connection to a nonpunitive

purpose; or is excessive wil-ti re-ipect to t 1-iis purpose ." Smith, 538 U.S. at 97. Several appella.1 e cou its ftave ad(Irc ssed I 1w. retroactive application ofsex offender residency restrictions in tigfit of tliese factors, and all but one of them have held that die restrictio--iis, :~oine far itiore severe than Kentucky's 1,000 foot buffer zone, were prin)arily regidatoiN, not punitive, and thus did not implicate ex posiJi:x1o li:iaiftatiol is. )_)(,e v- . reClle , 405 F-3d 700 (8th Cir. 2005) (Iowa's 2,000 for t. buffer zone regulatory, iiot punitive) ; State v. SeerjRg, 701 N.W.2d 655 (Iow~-, 2005) (upl-ioldirig 2,000 foot buffer zone) ; Salter v. State, 971 So . 2d 31 (Ala . App . 2007) (approNlrig 2,00(l foot: buffer zone) ; People v. LeRoy, 828 N.E.2d 769 (111. App. 2005) (approving 500 foot. buffer zone) . See also ,Standey v. Town of kyoodf -,, t;.20 01 8 (N .C. App. 2007) (upholding Dan on entering public pax1c) ; Doe v. Baker, 2006 WL 905368 (N .D. Ga. 2006) (upholding 1,000 fool.. buffer zone) . See geoerally MajJorie A. Shields, "Validity of Statutes Imposing Rc,~ sidericy Restrictiotis on Registered Sex Offenders," 25 ALR 6th 227 (2007) . But see State v. Pollar!j, 908 N .E .2d 1145 (Ind . 2009) (residence restriction dei-:~ ii:-Fied p-unitiive in large part. because it applies without a particularized assessment of dangerousness} . As these courts have noted, residence restrid .ions are not a traditional form of punishment and their punitive effects are not undi-w in light of their important public safety objective . In my view, the majon.ty's application of the Supreme Court's factors fails at several points to defer-, as we ar-e obliged to do, to permissible legislative judgments, and amounts th.us t,,-) Judicial legislating under the guise of constitutional. analysis.

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

Contrary to the niajority's assertion, for example, KRS 17.545's residence restriction does .j -iot resejuble ba,iii ;~,J -irticiit in either purpose or effect . Banishment, of course, was a mea'pis of'ren -toving dangerous individuals from the community irk days wlicii prisojiis did not exist. or were inadequate to serve that purpose . KRS- 17.545, by coritrast, leaves registered sex and child offenders completely free to live, work, and participate in the community. It seeks only to lessen the contact, arid lience the opportunity for tragedy, between known se-x offenders arid soriie oft -le cotliniunity's most vulnerable members . The statutrz:'s potential r(qufrernent, that a registered sex offender change residence is not unlike a zoning change with a like effect, a far cry from banishment or a-rjy other traditional form of punishment.

In other cases it has been argued tbat the buffer zones around protected sites left little or no residential opportunities available to registrants, and thus did tend to force registrants outside the community. We have not been referred to any similar showing in the record before us, however, and the buffer zones under Kentucky's statute are smaller than those at issue in most of those other cases . Even in those cases, the. courts have held that because the residence restrictions left registrants free to visit, work, and otherwise conduct their affairs throughout the community, they did not resemble banishment in any but a superficial sense. See, e.g. Doe v. Miller, a. The record here suggests only th4A 13<alcer la<a~ been inconN-enienced by being forced to move .8 The majority's c14djus n0wfistanding, llic lacas not been banished .

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

Baker lia.s been burdened, however. '"fllere is no doubt. but that residence restrictions are alOrm of disability. That tact alone, however, does not render KRS 17.54,E punitive. The vast majority ot'civil regulatory statutes impose some sort of'disability or restraint . The questions, rather, are whether the disability here serves punitive ends and whether it is so excessive with regard to the civil enc-,s it. is meant to serx,e as not to be rational. The majority maintains that KRS J7 .54,5 both punitive and irrational.

It is punitive, t.he aajority contends, because it applies only to convicted sex offenders . Because i l-zc :regulakon is hosed on a prior offense, the majority concludes that it an2ounts to additional retribution for that offense . As the United States Court: (;f Appeals for the Eighth Circuit in Doe v. Miller explained, however, residence restrictions single out. prior offenders not because their past conduct is to be liirthcr punished, but because that conduct is an indicator of future dangerousness, whieh tfe legislature hopes to mitigate . The regulation looks not to the past. crime, but . t o the danger of future recidivism.

The majority contends that that forward looking focus is belied by the fact that the regulation does not attempt to distinguish the more from the less

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

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dangerous offenders, iut the i-ecord Before us provides no basis for that distinction . A s the Ui-titc d States Supreme Court noted six years ago in Smith v. Doe, there is data suggesting that "[t-)he risk of- recidivism posed by sex offenders is `frightening and higli .'"' 53(3 U .S . at. 103 . It may well be, of course, that as more data is gather(-A important dillerences among different types of offenders will emerge, differ-crwes wtuch could have a bearing on legislative: choices. That, however, is precisely the sort. of iz-iformation law makers, not courts, are design(-~d to assess . "M,--re is 1-othing in the record before us which would preclude the General Assembly from treating sex offenders as a class, or would compel it to make tlv~ distinctions the majority favors . Neither Baker nor the majority, in surri, ha.s shown tl~.at. K.RS 17 .545 is a retributive statute, and most assurcydly they have not slliowi-i retribution by the "clearest proof." C. KRS 17.545 Reasonably A vaiaces A Vital Public Safety Aim.

The final questions, then, are whether K.RS 17 .545 rationally serves a valid non-punitive purpose, and whether the disabilities it creates are excessive in light of that purpose . As our sister courts have held, residence restrictions have the vital, noii-punit;.i,ve purpose of protecting children from sexual assaults and other crimes. In Smith, SU ra, the Supreme Court noted that a statute's "rational connection to a nonpunitive purpose is a `most significant' factor in our determination that the statute's effects are not punitive." 538 U .S . at 102 (citation omitted) . The majority acknowledges, as it must, the General Assembly's legitimate, regulatoi-y concern with public safety, but opines that KRS 17.545 is ;rt hT :f.1io_aa.l means RR,o serve the public safety end because it

does not. solve the recidivisiii 1:)roblcin by e1iiiiii - iating any and all opportunities for a sex offender to reoll'i,, nd .

The majority has applied I'ar too st,rict a stand~ird . The General Assembly is not obligated to -fashion perfect. staftites, Cornelison v. Commonwealth,, 52 S.W.3d 570 (Ky . 2001), nor is it precluded from addressing part of a. problem and leaving offier parts 1'6r anol .her day . flolbrook v. f,exmark International Group, Inc. , 65 S-W.3d 908 (Ky . 2001) . As the I,Jnffed States Supreme Court stated in Smith, "fal stati-ite is not deerned punitive simply because it. lacks a close or perfect fit witll the vtonptinitive a.irns it seeks to advance." 538 U.S . at 103. As in Smith, the imprecision the majority relies upon "does not suggest that [KRS 17.545]'s rionpuriffiVOPUrpose is a sham or mere pretext." Id. at 103 (citation and iriternal quotation marks oiiiitl .ed) . On the contrary, while residential restrictions cannot eliminate all contacts between potential recidivists and their potenti -a I child victims, particularly where perpetrator and victim are related, they are. clearly a rational means of decreasing those contacts, and thiis the General Assernbly could reasonably believe that they would enhance the overall safety of children . In denying the reasonableness of that belief, the majority disrep_rds the General Assembly's right to address problems in part, rather than comprehensively, and improperly substitutes its policy judgment for that of the General Assembly .

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

Under Smith, even if a. regiflation rationally serves a non-punitive purpose, it may still be deemed punitive if the disability or restraint it imposes

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 .

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