State v. Wilkinson, 82,347.
| Decision Date | 14 July 2000 |
| Docket Number | No. 82,347.,82,347. |
| Citation | 269 Kan. 603,9 P.3d 1 |
| Parties | STATE OF KANSAS, Appellee, v. EDWARD B. WILKINSON, Appellant. |
| Court | Kansas Supreme Court |
Brent Getty, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the brief for appellant.
Debra S. Peterson, assistant district attorney, argued the cause, and Charles R. Reimer, assistant district attorney, Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were on the brief for appellee.
The opinion of the court was delivered by
In this appeal following his pleas to two counts of incest, Edward B. Wilkinson attacks the Kansas Sex Offender Registration Act (KSORA), K.S.A. 22-4901 et seq., on due process grounds and also asserts that the Kansas Bureau of Investigation (KBI) website on sex offenders violates KSORA.
On October 10, 1998, Wilkinson pled no contest to two counts of incest, a severity level 10 person felony, K.S.A. 21-3602. The crimes occurred between June 1, 1996, and April 1, 1997. The victim, Wilkinson's biological daughter (born 6-20-77), claimed Wilkinson had been engaging with her in sexual activities, including sexual intercourse, anal sex, and oral sex, on a regular basis since she was age 14.
Prior to sentencing, Wilkinson filed a "Motion for Order Rescinding Registration Requirement and/or Public Access to Registration Information due to the Unconstitutionality of K.S.A. 224901 et seq., and that Registration Information Not be Published on the Kansas Bureau of Investigation Website." In the motion, Wilkinson argued the registration and public access provisions of KSORA violate due process under the United States and Kansas Constitutions. More specifically, he argued that he had a procedural due process entitlement to a hearing to determine the significance of his threat of reoffense before his registration information was made available to the public, and that KSORA violates due process because it contains no risk assessment mechanism and no graduated system of public access linking registration and public access to the degree of threat presented by the offender. Finally, he argued that the KBI website on sex offenders is not authorized by KSORA.
At sentencing on November 5, 1998, the trial court announced consecutive sentences of 7 months' imprisonment for each conviction and 60 months of postrelease supervision. Because of Wilkinson's category I criminal history, presumptive probation applied and the court granted Wilkinson 24 months' probation to community corrections on each count, with various terms and conditions of probation. In addition, the trial court certified Wilkinson as a sex offender pursuant to K.S.A. 22-4902(b)(12) and informed him of his duty to register as required by KSORA. The trial court denied Wilkinson's motion to rescind the registration and public access requirements of KSORA and also denied his oral motion for a stay of the registration requirement pending an appeal. Wilkinson appeals. The case was transferred to this court pursuant to K.S.A. 20-3018(c).
Does KSORA violate due process?
Wilkinson complains that KSORA does not afford him a hearing to determine the degree of threat he poses to the public prior to requiring him to register and/or prior to permitting the public to have access to his registration information. He asserts this violates procedural due process under the Fifth and Fourteenth Amendments to the United States Constitution and the Kansas Constitution.
Standard of review
The constitutionality of KSORA is a question of law, over which we exercise unlimited review. See State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996), cert. denied 521 U.S. 1118 (1997). The constitutionality of legislative enactments is presumed and all doubts must be resolved in favor of a statute's validity. State v. Scott, 265 Kan. 1, 4, 961 P.2d 667 (1998). A statute should not be declared unconstitutional unless the infringement of the superior law is clear beyond a substantial doubt.
The KSORA was renamed the "Kansas Offender Registration Act" effective July 1, 1997, when it was expanded to include registration requirements for those who commit certain violent (but not sex-related) offenses and certain other types of offenders. L. 1997, ch. 181, §§ 7-14. Wilkinson's crimes occurred between June 1996 and April 1997, during the period when the versions of KSORA found in the 1995 Furse bound volume and 1996 Supplement were in effect. For purposes of this appeal we will refer to the statutes in issue as KSORA or "the Act."
The Act (both then and now) provides an automatic registration requirement for all sex offenders convicted of a "sexually violent crime" within the meaning of K.S.A. 22-4902(b). See also K.S.A. 22-4905 (). Wilkinson's crime of incest is not one of the crimes enumerated by name in K.S.A. 22-4902, but it is deemed a sexually violent crime under K.S.A. 22-4902(a) and (b)(12) because it was found beyond a reasonable doubt to have been sexually motivated. The registration information is forwarded to the KBI, is "open to inspection in the sheriff's office by the public," and is specifically subject to the provisions of the Kansas Open Records Act, K.S.A. 45-215 et seq. K.S.A. 22-4907; K.S.A. 22-4909. The offender must also keep law enforcement informed of any change of address. K.S.A. 22-4904(b).
The 1995 version of the information required to be registered included: name; date of birth; offense or offenses committed, date of conviction or convictions; city or county of conviction or convictions; a photograph; fingerprints; and social security number. K.S.A. 22-4907 (from L. 1993, ch. 253, § 23). Effective July 1, 1996, the registration information must also include: sex and age of the victim; current address; identifying characteristics, such as race and hair color; occupation and name of employer; and drivers license and vehicle information. K.S.A. 1996 Supp. 22-4907 (from L. 1996, ch. 224, § 5). The law was amended again effective July 1, 1997, to also require: documentation of any treatment received for a mental abnormality or personality disorder of the offender; and anticipated future residence. See K.S.A. 1999 Supp. 22-4907(a)(11) and (12) (from L. 1997, ch. 181, § 12).
Under the law in effect at the time Wilkinson committed his crimes:
"Any person required to register as provided in this act shall be required to register: (1) Upon the first conviction of a sexually violent crime, if not confined, for a period of 10 years after conviction, or, if confined, for a period of 10 years after paroled, discharged or released; or (2) upon a second or subsequent conviction for such person's lifetime." K.S.A. 22-4906(a).
Other than specifying what kinds of offenses warrant registration as a sex offender, the Act does not call for further classification or evaluation of particular offenders for purposes of determining whether registration should be required in the first instance or the extent of public access to the registration information. K.S.A. 22-4908 provides the opportunity for a hearing to relieve the offender from the responsibility of further registration, but only after he or she has registered. The version of K.S.A. 22-4908 in effect in 1995 until July 1, 1997, (covering the period during which Wilkinson committed his offenses) provided:
Under that version in effect starting July 1, 1997, the court shall hold a hearing to consider such application. At the hearing, witnesses and evidence may be presented, and, for sexually violent offenders, the court shall consider a report by a board composed of experts knowledgeable in the field of the behavior and treatment of sex offenders. K.S.A. 1997 Supp. 22-4908(a) and (b). If the court then finds by a preponderance of the evidence that the sex offender is rehabilitated and "does not suffer from a mental abnormality or personality disorder that would make the person likely to engage in a predatory sexually violent crime," the court shall relieve the offender of the duty of further registration. K.S.A. 1997 Supp. 22-4908(b).
Procedural due process standards
Under the Fifth and Fourteenth Amendments to the United States Constitution, no state may "deprive any person of life, liberty, or property, without due process of law." Section 18 of the Kansas Constitution Bill of Rights provides that "[a]ll persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay."
The basic elements of procedural due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Kennedy v. Board of Shawnee County Comm'rs, 264...
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