State v. Limon, No. 85,898.

• Decision Date: 21 October 2005
• Docket Number: No. 85,898.
• Citation: 122 P.3d 22
• Parties: STATE of Kansas, Appellee, v. Matthew R. LIMON, Appellant.
• Court: Kansas Supreme Court

Page 22

122 P.3d 22

STATE of Kansas, Appellee, v. Matthew R. LIMON, Appellant.

No. 85,898.

Supreme Court of Kansas.

October 21, 2005.

Syllabus by the Court

1. K.S.A. 2004 Supp. 21-3522 violates the equal protection provisions of the Fourteenth Amendment to the United States Constitution and § 1 of the Kansas Constitution Bill of Rights.

2. The equal protection violation inherent in K.S.A. 2004 Supp. 21-3522 is cured by the severance of the words "and are members of the opposite sex" from the statute.

James D. Esseks, of American Civil Liberties Union Foundation, Lesbian & Gay Rights Project, of New York, New York, argued the cause, and Tamara Lange, of American Civil Liberties Union Foundation, Lesbian & Gay Rights Project, of San Francisco, California, and Paige A. Nichols, of Lawrence, were with him on the briefs for appellant.

Jared S. Maag, deputy attorney general, argued the cause, and Phill Kline, attorney general, was with him on the briefs for appellee.

Jeffrey E. Goering, of Thompson, Stout & Goering, LLC, of Wichita, and Mathew D. Staver, of Liberty Counsel, of Longwood, Florida, were on the brief for amicus curiae Kansas Legislators.

Timothy M. O'Brien and Chelsi K. Hayden, of Shook, Hardy & Bacon, L.L.P., of Overland Park, and Julie M. Carpenter and Nicole G. Berner, of Jenner & Block, LLC of Washington, D.C., were on the brief for amicus curiae DKT Liberty Project.

Eric D. Barton, of Wagstaff & Cartmell, LLP, of Kansas City, Missouri, and Hayley Gorenberg, of Lambda Legal, of New York, New York, were on the brief for amici curiae Kansas Public Health Association, American Public Health Association, American Academy of HIV Medicine, American Foundation for AIDS Research, HIV Medicine Association, International Association of Physicians in AIDS Care, National Alliance of State and Territorial AIDS Directors, and National Minority AIDS Council.

Melanie S. Morgan, of Kansas City, and Ruth N. Borenstein, Leecia Welch, and Sylvia M. Sokol, of Morrison & Foerster, LLP, of San Francisco, California, were on the brief for amici curiae National Association of Social Workers and Kansas Chapter of the National Association of Social Workers.

The opinion was delivered by LUCKERT, J.:

The principal issue presented in this case is whether the Kansas unlawful voluntary sexual relations statute, K.S.A. 2004 Supp. 21-3522, violates the equal protection provision of the Fourteenth Amendment to the United States Constitution. Matthew Limon argues that the United States Supreme Court decision in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), requires this court to find the statute unconstitutional because it results in a punishment for unlawful voluntary sexual conduct between members of the opposite sex that is less harsh than the punishment for the same conduct between members of the same sex.

The statute subject to this challenge, commonly referred to as the Romeo and Juliet statute, applies to voluntary sexual intercourse, sodomy, or lewd touching when, at the time of the incident, (1) the victim is a child of 14 or 15; (2) the offender is less than 19 years of age and less than 4 years older than the victim; (3) the victim and offender are the only ones involved; and (4) the victim and offender are members of the opposite sex. K.S.A. 2004 Supp. 21-3522. Limon's conduct meets all of the elements of the Romeo and Juliet statute except the one limiting application to acts between members of the opposite sex.

When the Romeo and Juliet statute applies, prison terms are shorter and other consequences, such as postrelease supervision periods and sex offender registration requirements, are less harsh than when general rape, sodomy, and lewd touching statutes apply. Because these disparities are based upon the homosexual nature of Limon's conduct, he argues the Romeo and Juliet statute creates a classification which violates the equal protection principles announced by the United States Supreme Court. Limon suggests we apply a strict level of scrutiny when reviewing his claim, but asserts that even if the rational basis test applies, under the guidance of Lawrence, the classification bears no rational relationship to legitimate State interests.

We agree that the United States Supreme Court's decision in Lawrence controls our analysis and, when considered in conjunction with several equal protection decisions of the United States Supreme Court, requires us to hold that the State does not have a rational basis for the statutory classification created in the Romeo and Juliet statute.

Because we reach this conclusion, we will not reach Limon's other constitutional attacks upon his conviction. However, we will discuss his argument that his sentence violates the principles enunciated by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Factual and Procedural Background

Limon was convicted of criminal sodomy pursuant to K.S.A. 21-3505(a)(2) after a bench trial on stipulated facts. The stipulation established that on February 16, 2000, Limon had consensual oral contact with the genitalia of M.A.R. Both Limon and M.A.R. are male. Limon turned 18 years of age just 1 week before the incident; his date of birth is February 9, 1982. He was less than 4 years older than M.A.R., who turned 15 years of age the month following the incident. M.A.R.'s date of birth is March 17, 1985.

After his conviction, Limon filed a motion for a downward durational departure from the presumptive sentence under the Kansas sentencing guidelines. He also renewed his argument that his equal protection rights had been violated by the conviction. These motions were argued and evidence was presented at the sentencing hearing.

The contact occurred at a school for developmentally disabled children where Limon and M.A.R. were residents. Although there is a discrepancy between Limon's and M.A.R.'s functioning, the difference is minor. Intellectually, Limon falls between the ranges described as borderline intellectual functioning and mild mental retardation. M.A.R. functions in the upper limits of the range of mild mental retardation. M.A.R. consented to the sexual contact, and when he asked Limon to stop, Limon did so.

The trial court rejected Limon's equal protection argument and denied the motion for downward durational departure. The trial court found that Limon's criminal history category was B because of two prior juvenile adjudications for aggravated criminal sodomy. Limon was sentenced to 206 months' imprisonment, which was the mitigated term under the Kansas sentencing guidelines for a severity level 3 crime where the defendant has a criminal history falling in category B. As a consequence of Limon's conviction, he is subject to 60 months' of postrelease supervision and is required to register as a persistent sexual offender. K.S.A. 22-4902 et seq. By contrast, had Limon been convicted of sodomy under the unlawful sexual relations statute, the presumptive sentence at the time of the offense (and now) would have been only 13, 14, or 15 months' imprisonment. K.S.A. 1999 Supp. 21-4704. Moreover, those sentenced under the unlawful sexual relations statute are not subject to the provisions regarding sentencing of persistent sexual offenders (K.S.A. 2004 Supp. 21-4704[j] and K.S.A. 2004 Supp. 22-3717[d][2]) or required to register as a sex offender (K.S.A. 22-4902).

Limon appealed, and the Court of Appeals affirmed his conviction and sentence in State v. Limon, No. 85,898, 41 P.3d 303 unpublished opinion filed February 1, 2002, rev. denied 274 Kan. 1116 (2002) (Limon I). The Court of Appeals' decision was based primarily upon Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), overruled by Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).

Limon sought this court's review of the Court of Appeals' decision; his petition was denied. Limon then filed a petition for writ of certiorari to the United States Supreme Court. While his petition was pending, the Supreme Court issued its decision in Lawrence v. Texas, which involved two adult men who engaged in private, consensual anal sex; they were charged and convicted under a Texas statute which prohibited "deviate sexual intercourse" between persons of the same sex.

In an opinion authored by Justice Kennedy and joined by Justices Stevens, Souter, Ginsburg, and Breyer, the Court held that the Texas statute violated the Due Process Clause. In doing so, the Court focused upon Bowers, the decision upon which the Kansas Court of Appeals had relied in the instant case. In Bowers, the United States Supreme Court sustained a Georgia criminal sodomy statute against a claim the provision violated the Due Process Clause. In a turnabout of the holding in Bowers, the Lawrence Court concluded: "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled." 539 U.S. at 578, 123 S.Ct. 2472.

The Lawrence Court recognized a liberty interest and considered whether the State's infringement of that interest was justified by a legitimate State interest:

"The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. `It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.' [Citation omitted.] The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." 539 U.S. at 578, 123 S.Ct. 2472.

Justice O'Connor concurred, finding the Texas statute unconstitutional. However, she did not join in the...