Doe v. Thompson

• Decision Date: 22 April 2016
• Docket Number: No. 110,318.,110,318.
• Citation: 304 Kan. 291,373 P.3d 750
• Parties: John DOE, Appellee, v. Kirk THOMPSON, Director of the Kansas Bureau of Investigation, and Frank Denning, Johnson County, Kansas, Sheriff, Appellants.
• Court: Kansas Supreme Court

304 Kan. 291

373 P.3d 750

John DOE, Appellee,

v.Kirk THOMPSON, Director of the Kansas Bureau of Investigation, and Frank Denning, Johnson County, Kansas, Sheriff, Appellants.

No. 110,318.

Supreme Court of Kansas.

April 22, 2016.

Christopher M. Grunewald, assistant attorney general, argued the cause, and Ward E. Loyd, assistant attorney general, and Derek Schmidt, attorney general, were with him on the briefs for appellant Kirk Thompson, and Kirk T. Ridgway, of Ferree, Bunn, Rundberg, Radom & Ridgway, Chartered, of Overland Park, was with him on the briefs for appellant Frank Denning.

Christopher M. Joseph, of Joseph Hollander & Craft, LLC, of Topeka, argued the cause, and Carrie E. Parker, of the same firm, was with him on the brief for appellee.

James R. Shetlar, of Overland Park, was on the brief for amicus curiae The National Center for Victims of Crime.

Jessica R. Kunen, of Lawrence, was on the brief for amicus curiae American Civil Liberties Union Foundation of Kansas.

The opinion of the court was delivered by JOHNSON

, J.:

Plaintiff, proceeding under the pseudonym John Doe, filed a declaratory judgment action against agents of the State, claiming that retroactive application of the 2011 amendments to the Kansas Offender Registration Act, K.S.A. 22–4901 et seq.

(KORA), violated the Ex Post Facto Clause of Article I, § 10 of the United States Constitution (hereafter, Ex Post Facto Clause). The district court granted summary judgment in Doe's favor, finding that while the legislature intended KORA to be a civil statutory scheme, the act was punitive in effect pursuant to the factors identified in Kennedy v. Mendoza–Martinez, 372 U.S. 144, 168–69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963) (Mendoza–Martinez factors). Consequently, the district court concluded that, because KORA's retroactive application assigned a new punitive measure to a crime already consummated, it violated the Ex Post Facto Clause.

The State appealed the district court's judgment, arguing that the district court erred by (1) refusing to strike inadmissible evidence submitted in support of Doe's motion for summary judgment; (2) taking judicial notice of certain journal articles; and (3) concluding that the KORA amendments violated the Ex Post Facto Clause. In addition, the State complains about the district court's order granting Doe leave to proceed with a pseudonym. We affirm the district court's result.

Factual and Procedural Overview

In 2003, after being charged with inappropriately touching or fondling a 14–or 15–year–old child, Doe pled guilty to and was convicted of one count of indecent liberties with a minor, in violation of K.S.A. 21–3503(a)(1)

(Furse 1995). In April 2003, he received a controlling prison term of 32 months, but the prison portion of his sentence was suspended and he was placed on probation for 36 months. It appears that probation was Doe's presumptive sentence. Doe successfully completed his probation in April 2006.

At the time of his conviction, KORA required Doe to register with both the Kansas Bureau of Investigation (KBI) and the Johnson County Sheriff's Office for a period of 10 years from the date of his conviction, given that he was not incarcerated. K.S.A. 2002 Supp. 22–4906(a)

. Doe submitted his initial registration forms following his April 2003 sentencing and thereafter complied with the KORA registration and reporting requirements.

Information from the registration form, such as the offender's name, age, address, gender, race, and photograph, is available for public access on the Johnson County Sheriff's website, which allows the public to search for offenders by name or geographical location. In addition, the website contains a “share and bookmark” feature that allows users to share registry information via email and other Internet information sharing resources.

The KBI's website provides even more information for public access, including such additional information as the offender's hair and eye color, the dates of offense and conviction, the county of conviction, and the age of the victim. It also allows the public to search for an offender by name and geographical location. The public can also learn if a phone number, email, or Facebook identity belongs to an offender. Finally, the KBI website provides a community notification system that allows an individual to be notified by email when a registered offender registers a home, work, or school address that is near an address of interest to the notified individual.

Before Doe was scheduled to complete his reporting requirements, on June 15, 2011, the KBI sent a letter to all registered offenders, including Doe, detailing recent legislative amendments to KORA that were to become effective on July 1, 2011. The letter advised Doe that the amendments were retroactive and would apply to all offenders regardless of when their underlying offenses occurred. Particularly germane to Doe was the notification that his period of registration had been extended from 10 years to 25 years after conviction, i.e., Doe's KORA completion date was changed from the year 2013 to the year 2028.

In response, Doe filed a petition for declaratory judgment against KBI director Kirk Thompson and Johnson County Sheriff Frank Denning (hereafter collectively referred to as “the State”). Doe sought a judicial determination that the retroactive application of the 2011 KORA amendments, particularly the extension of the registration period, violated the Ex Post Facto Clause by effecting an after-the-fact increase in punishment for a previously committed crime. Doe sought, and was granted, leave to proceed with his lawsuit using a pseudonym in order to protect his identity, his family members' identities, and the identity of the victim in the underlying criminal case.

Both parties filed motions for summary judgment. To his motion, Doe attached affidavits and journal articles. The affidavits described how the registration requirements had adversely impacted Doe and his family. The journal articles provided general discussions of the difficulties that sex offenders encounter due to the registration requirements, together with social science findings regarding the impact that registration laws have on recidivism. The State filed a motion to strike specific portions of the affidavits, claiming that they were “replete with testimony unsupported by specific material facts or personal knowledge or both; inadmissible hearsay testimony”; and contained lay opinion testimony that lacked proper foundation. In addition, the State contended that Doe's motion for summary judgment “inappropriately attempts to use general law journal articles and other publications in lieu of testimony to establish certain facts.”

The district court denied the defendants' motion to strike and granted Doe's motion for summary judgment. As will be discussed in more detail below, the district court found that the 2011 amendments to KORA imposed additional burdens upon KORA registrants so as to render the act punitive in effect. Specifically, the district court concluded that “KORA's current provisions subject Mr. Doe to punishment under any definition,” and, therefore, the retroactive application of those punitive provisions to a previously committed crime violated the Ex Post Facto Clause. The district court entered judgment requiring defendants to immediately terminate Doe's additional 15–year registration requirement and delete all KORA information that was being publicly displayed.

The State filed a timely appeal, invoking this court's jurisdiction pursuant to K.S.A. 60–2101(b)

, which provides that “[a]n appeal from a final judgment of a district court in any civil action in which a statute of this state or of the United States has been held unconstitutional shall be taken directly to the supreme court.”

Denial of State's Motion to Strike Material From Plaintiff's Motion for Summary Judgment

The State argues that the district court erred in failing to strike certain evidence that Doe submitted in support of his motion for summary judgment. Specifically, the State complains about: (1) testimony contained in the affidavits that was not based on personal knowledge; (2) inadmissible hearsay evidence contained within the affidavits; and (3) purported “legislative facts” contained in journal articles, which forms the basis of the second issue discussed below. The State contends that the error was unfairly prejudicial because several of the objectionable affidavit statements “were recited by the district court as uncontroverted material facts.” Doe claims that the State's argument is a “straw man,” because the statements were not relied upon by the district court in deciding the summary judgment motion.

Standard of Review

The State challenges the legal basis upon which the district court considered the affidavits and journal articles in conjunction with Doe's summary judgment motion. We exercise de novo review over a challenge to the legal adequacy of the district court's decision to admit or exclude evidence. See State v. Holman, 295 Kan. 116, Syl. ¶ 6, 284 P.3d 251 (2012)

.

To the extent that we are called upon to interpret our judicial notice statute, K.S.A. 60–409

, we conduct a de novo review. See Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013) (statutory interpretation a legal question subject to de novo review).

Analysis

We begin with the State's challenges to the affidavits of John Doe and his wife, Jane Doe. K.S.A. 2012 Supp. 60–256(e)(1)

, the statutory provision governing motions for summary judgment, contains a specific provision addressing affidavits or declarations that are submitted in support of, or opposition to, a summary judgment motion, to-wit:

“A supporting or opposing affidavit or declaration must be made on personal knowledge, set out facts that would be admissible in evidence and show that the affiant or declarant is competent to testify on the matters stated. If a paper or part of a paper is referred to in

...