State v. Buser

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 105,982

STATE OF KANSAS,
Appellee,

v.

JOSEPH M. BUSER,
Appellant.


SYLLABUS BY THE COURT

1.
Article I, § 10 of the United States Constitution provides that no state shall pass
any ex post facto law. Ex post facto laws include retroactively applied legislation that
make more burdensome the punishment for a crime, after its commission.

2.
The constitutional prohibition on ex post facto laws applies only to penal statutes.

3.
To determine whether the retroactive application of a statutory scheme violates the
Ex Post Facto Clause, a court first determines the legislature's intention. If a statutory
scheme was intended to be punitive, it cannot be applied retroactively under any
circumstances.

4.
If the legislature intended to enact a regulatory scheme that is civil and
nonpunitive, the next inquiry is whether the statutory scheme is so punitive either in
2



purpose or effect as to negate the State's intent to deem it civil. If a statutory scheme is
punitive in effect, the Ex Post Facto Clause prohibits its application retroactively.

5.
The Kansas Offender Registration Act, K.S.A. 22-4901 et seq., as amended in
2011, is punitive in effect, and the amended statutory scheme cannot be applied
retroactively to any sex offender who committed the qualifying crime prior to July 1,
2011.

Review of the judgment of the Court of Appeals in an unpublished opinion filed March 15, 2013.
Appeal from Mitchell District Court; KIM W. CUDNEY, judge. Opinion filed April 22, 2016. Judgment of
the Court of Appeals reversing and remanding the district court's registration judgment is reversed.
Judgment of the district court is reversed.

Meryl Carver-Allmond, of Kansas Capital Appellate Defender Office, argued the cause and was
on the briefs for appellant.

Mark J. Noah, county attorney, argued the cause, and Derek Schmidt, attorney general, was with
him on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: Joseph M. Buser seeks review of the Court of Appeals' holding that
the 2011 amendments to the Kansas Offender Registration Act (KORA), K.S.A. 22-4901
et seq., can be applied retroactively to his 2009 conviction without violating the Ex Post
Facto Clause of the United States Constitution (hereafter Ex Post Facto Clause). Because
KORA's statutory scheme after the 2011 amendments is so punitive in effect as to negate
the implied legislative intent to deem it civil, we hold that the Ex Post Facto Clause
precludes the retroactive application of the amended statutory scheme to any sex offender
3



who committed the qualifying offense prior to July 1, 2011. Accordingly, we reverse the
Court of Appeals and hold that the time period in which Buser is required to register is 10
years from his release from prison, pursuant to the provisions of K.S.A. 22-4906(a).

FACTUAL AND PROCEDURAL OVERVIEW

In February 2009, when he was 21 years old, Buser began dating a 15-year-old
girl. The couple began having sex 2 months later, and the following month, in May 2009,
the girl's mother reported the couple's sexual relationship to the police. The police
investigation led to charges being filed against Buser, including one count of indecent
liberties with a child and six counts of aggravated indecent liberties with a child.
Ultimately, Buser pled no contest to one count of indecent liberties with a child. In
connection with his plea, Buser was advised of the KORA requirement to register as a
sex offender.

The district court accepted Buser's plea and sentenced him to 52 months'
imprisonment and lifetime post-release supervision. The district court also ordered Buser
to register as an offender under KORA for his lifetime because the court found that this
was Buser's second conviction, apparently based upon a prior juvenile adjudication.

In Buser's direct appeal to the Court of Appeals, he argued that the district court
erred in counting his prior juvenile adjudication as a first conviction for purposes of
KORA because K.S.A. 22-4906 refers to "convictions," not "adjudications." The State
agreed that Buser's juvenile adjudication could not count as a prior conviction to enhance
the time period of registration. But the State contended that under the subsequently
enacted 2011 amendments to KORA, Buser's registration term as a first-time offender
had been increased to 25 years. Buser's reply brief argued that he should only be subject
to the 10-year registration term in effect when he committed his crime, because
4



retroactively imposing a longer registration term based upon the 2011 amendments to
KORA violated the Ex Post Facto Clause.

The Court of Appeals found that the State was correct in conceding that the district
court erred in imposing a lifetime registration term. State v. Buser, No. 105,982, 2013
WL 1149655, at *6 (Kan. App. 2013) (unpublished opinion). But the panel also found
that the 2011 amended registration term of 25 years could be applied retroactively to
Buser. 2013 WL 1149655, at *9. Accordingly, the Court of Appeals remanded the case to
the district court for "correction of the duration of time Buser must register under
KORA." 2013 WL 1149655, at *10.

Buser petitioned this court for review on the sole issue of whether the Court of
Appeals violated the Ex Post Facto Clause when it held that Buser was required to
register under KORA for 25 years instead of 10 years. This court granted Buser's petition
for review, together with two other cases with related issues: Doe v. Thompson, 304 Kan.
___, ___ P.3d ___ (No. 110,318, this day decided), and State v. Redmond, 304 Kan. ___,
___ P.3d ___ (No. 110,280, this day decided).

RETROACTIVE APPLICATION OF KORA 2011 AMENDMENTS

The 2011 version of KORA's statutory scheme purported to apply to any person
who was convicted of any sexually violent crime on or after April 14, 1994. K.S.A. 2011
Supp. 22-4902(b) (defining "sex offender"). Indecent liberties with a child is statutorily
designated as a "sexually violent crime." K.S.A. 2011 Supp. 22-4902(c)(2). Accordingly,
Buser's 2009 conviction for a sexually violent crime made him subject to the additional
and enhanced provisions of the 2011 statutory scheme, including the increased time
period for a first-time offender.

5



But legislative acts must comport with our federal and state constitutions, and
Article I, § 10, of the United States Constitution provides, in relevant part, that "[n]o
State shall . . . pass any . . . ex post facto Law." One category of ex post facto laws is
"'"any statute . . . which makes more burdensome the punishment for a crime, after its
commission."'" State v. Todd, 299 Kan. 263, 277, 323 P.3d 829 (2014) (quoting Beazell v.
Ohio, 269 U.S. 167 169-70, 46 S. Ct. 68, 70 L. Ed. 2d 216 [1925]). Yet, "[t]he
constitutional prohibition on ex post facto laws applies only to penal statutes." State v.
Myers, 260 Kan. 669, 677, 923 P.2d 1024 (1996). Consequently, the question of whether
the 2011 version of KORA can be constitutionally applied retroactively to Buser will be
resolved by determining whether the amended statutory scheme is punitive.

Standard of Review

"When the application of a statute is challenged on constitutional grounds, this
court exercises an unlimited, de novo standard of review. State v. Myers, 260 Kan. 669,
676, 923 P.2d 1024 (1996)." State v. Cook, 286 Kan. 766, 768, 187 P.3d 1283 (2008).

Analysis

In upholding the constitutionality of retroactively applying the 2011 KORA
provisions, the Court of Appeals relied in part on this court's decision in Myers, as the
panel determined it had been modified by the United States Supreme Court's subsequent
holdings in Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). On
review, Buser acknowledges the hurdles that those cases present, but he argues that his
case is factually distinguishable in that the 2011 version of KORA is far more punitive in
nature than the statutes reviewed in Myers and Smith. We agree.

6



State v. Myers

Myers considered whether a previous registration act, the Kansas Sex Offender
Registration Act (KSORA), could be applied to a person who had committed the
qualifying offense prior to the 1994 effective date of KSORA. See L. 1994, ch. 107, secs.
1-7. Myers claimed that the retroactive application of KSORA's reporting and disclosure
requirements violated the Ex Post Facto Clause. The State conceded that KSORA was
being retroactively applied to Myers but argued that the intent and purpose of KSORA
was regulatory, rather than punitive, and the Ex Post Facto Clause did not apply.

The Myers court agreed with part of the State's argument, finding that while
KSORA contained no express statement of legislative intent or purpose, "the legislative
history suggests a nonpunitive purpose—public safety." 260 Kan. at 681. But Myers'
analysis did not end with legislative intent. Rather, the Myers court recognized that it had
to make the additional determination of "whether the 'statutory scheme was so punitive
either in purpose or effect as to negate that [legislative] intention.' United States v. Ward,
448 U.S. 242, 248-49, 65 L. Ed. 2d 742, 100 S. Ct. 2636 (1980)." 260 Kan. at 681.

Ultimately, Myers opined that KSORA's registration requirements were remedial
and could apply retroactively to Myers. In contrast, the court held that "KSORA's
disclosure provision must be considered punishment." 260 Kan. at 699. While holding
that the legislative aim was not to punish and retribution was not an intended purpose of
the legislation, Myers reasoned "that the repercussions, despite how they may be justified,
are great enough under the facts of this case to be considered punishment." 260 Kan. at
699. Further, Myers opined that the unrestricted public access to the registry was
excessive and went beyond what was necessary to promote public safety. 260 Kan. at
699. Consequently, Myers declared that "[t]o avoid the ex post facto characterization,
public access [to registration information] should be limited to those with a need to know
7



the information for public safety purposes" and that those authorized to access the
information should only use it for public safety purposes. 260 Kan. at 700.

The Court of Appeals opined that it was duty-bound to follow Myers' holding that
the registration requirements of KORA's predecessor did not violate the Ex Post Facto
Clause, but that it was also duty-bound to follow the United States Supreme Court's
holdings in Smith. Without explicitly stating as much, the panel suggested that Myers'
ruling on this State's disclosure provisions had been overruled by Smith. Buser, 2013 WL
1149655, at *8-9.

Smith v. Doe

Smith considered an Ex Post Facto Clause challenge to the Alaska Sex Offender
Registration Act (ASORA). Although it was the first time the high court had considered
the precise issue, the Supreme Court applied its well-established framework of (1)
determining whether the legislature's intention was to enact a "a regulatory scheme that is
civil and nonpunitive" and, if so, (2) "examin[ing] whether the statutory scheme is '"so
punitive either in purpose or effect as to negate [the State's] intention" to deem it "civil."'"
538 U.S. at 92 (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 138 L.
Ed. 2d 501 [1997]). This framework is often referred to as the "intent-effects" test. See,
e.g., Moore v. Avoyelles Correctional Center, 253 F.3d 870, 872 (5th Cir. 2001).
Although Myers did not label its analysis, it used the same framework.

On the intent component, Smith held that the Alaska Legislature's intent "was to
create a civil, nonpunitive regime." 538 U.S. at 96. For the effects part of the test, the
Court utilized the factors identified in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-
69, 83 S. Ct. 544, 9 L. Ed. 2d 644 (1963), but noted that "[b]ecause the Mendoza-
Martinez factors are designed to apply in various constitutional contexts, . . . they are
8



'neither exhaustive nor dispositive,' [citations omitted], but are 'useful guideposts.'" 538
U.S. at 97. The Court explained:

"The factors most relevant to our analysis are whether, in its necessary operation, the
regulatory scheme: [1] has been regarded in our history and traditions as a punishment;
[2] imposes an affirmative disability or restraint; [3] promotes the traditional aims of
punishment; [4] has a rational connection to a nonpunitive purpose; or [5] is excessive
with respect to this purpose." Smith, 538 U.S. at 97.

Smith summarily dismissed the remaining two Mendoza-Martinez factors—
"whether the regulation comes into play only on a finding of scienter and whether the
behavior to which it applies is already a crime"—by declaring those factors carried "little
weight." 538 U.S. at 105.

Under the first factor—whether the regulatory scheme has been regarded in our
history and traditions as a punishment—Smith noted that sex offender registration and
notification statutes "'are of fairly recent origin,' [citation omitted] which suggests that the
statute was not meant as a punitive measure, or, at least, that it did not involve a
traditional means of punishing." 538 U.S. at 97 (quoting Doe I v. Otte, 259 F.3d 979, 989
[9th Cir. 2001]). The Court rejected the argument that the notification provisions
resembled shaming punishments of the colonial period by asserting that shaming,
humiliation, and banishment punishments of old involved more than the dissemination of
accurate information, which is all that ASORA did. The Smith Court was not swayed by
the fact that Alaska posted the registration information on the Internet because, in the
Court's view, a member of the public visiting the state's website was analogous to that
person visiting the official criminal records archive. 538 U.S. at 99.

Under the second factor, Smith found that ASORA had not imposed an affirmative
disability or restraint on Doe because he was not physically restrained in any manner. 538
9



U.S. at 100. Moreover, the Court rejected the notion that the reporting provisions were
akin to probation or parole, partially because the subsequent reporting did not have to be
made in person.

Under the third factor—whether the regulatory scheme promotes the traditional
aims of punishment—the Court described those aims as retribution and deterrence. The
Court appeared to concede that ASORA might deter future crimes, but it opined that if
the mere presence of deterrent purpose renders a government program "criminal," it
"'would severely undermine the Government's ability to engage in effective regulation.'"
Smith, 538 U.S. at 102 (quoting Hudson v. United States, 522 U.S. 93, 105, 118 S. Ct.
488, 139 L. Ed. 2d 450 [1997]). It then held that the act's registration obligations were not
retributive based upon the differing duration of reporting for different categories of
offenders because these measures were "reasonably related to the danger of recidivism,
and this is consistent with the regulatory objective." 538 U.S. at 102.

Smith declared the fourth factor—the rational connection to a nonpunitive
purpose—to be the most significant factor. The Court summarily rejected the
respondent's argument that ASORA was not "'narrowly drawn to accomplish the stated
purpose,'" reasoning that a "statute is not deemed punitive simply because it lacks a close
or perfect fit with the nonpunitive aims it seeks to advance." 538 U.S. at 103.

When assessing the fifth factor—whether the regulatory scheme is excessive with
respect to its purpose—Smith opined that it need not determine "whether the legislature
has made the best choice possible to address the problem it seeks to remedy. The question
is whether the regulatory means chosen are reasonable in light of the nonpunitive
objective." 538 U.S. at 105. The Court concluded that ASORA's application to all
convicted sex offenders, without any individualized assessment of the offender's
dangerousness, did not render the act punitive. Finding that the risk of recidivism by sex
10



offenders was "'frightening and high,'" the Court held that "[i]n the context of the
regulatory scheme the State can dispense with individual predictions of future
dangerousness and allow the public to assess the risk on the basis of accurate, nonprivate
information about the registrants' convictions without violating the prohibitions of the Ex
Post Facto Clause." 538 U.S. at 103-04.

Relying on empirical research on child molesters, the Court also held that the
duration of ASORA's reporting requirements was not excessive because "'most reoffenses
do not occur within the first several years after release,' but may occur 'as late as 20 years
following release.'" Smith, 538 U.S. at 104 (quoting National Institute of Justice, R.
Prentky, R. Knight, & A. Lee, U.S. Dept. of Justice, Child Sexual Molestation: Research
Issues 14 [1997]).

Finally, the Court held that the widespread dissemination of the registration
information was not excessive, instead finding that the "notification system is a passive
one: An individual must seek access to the information." 538 U.S. at 105. The Court also
determined that making the registry information available throughout the state was not
excessive in light of population mobility, citing to a study indicating that 38% of
recidivist sex offenses took place in different jurisdictions than where the previous
offense was committed. 538 U.S. at 105.

Having determined that the respondents had failed to show "that the effects of the
law negate Alaska's intention to establish a civil regulatory scheme," the Smith majority
declared that the act was nonpunitive and that its retroactive application did not violate
the Ex Post Facto Clause. 538 U.S. at 105-06.

11



Statutory Differences

In his petition for review, Buser asserts that the enhanced requirements of KORA,
after the 2011 amendments, render that statutory scheme much more punitive than the
schemes involved in either Myers or Smith. Consequently, Buser contends that working
the current statutory scheme through the Mendoza-Martinez factors would yield a
different result.

We engaged in that endeavor in Doe v. Thompson, 304 Kan. ___, ___ P.3d ___
(No. 110,318, this day decided). There, we listed the significant differences between the
2011 KORA and the ASORA reviewed in Smith. Those differences included the
following: KORA applies to a broader group of offenders; KORA requires frequent in-
person reporting regardless of whether registration information has changed since the last
reporting; KORA requires a longer registration period for some first-time offenders;
KORA requires additional registration information; KORA requires changed information
to be reported in person within 3 days; KORA requires additional information to be
disseminated to the public; KORA imposes potentially costly registration fees; KORA
requires advance notice for travel outside the United States; KORA requires annual
driver's license renewal and offenders subject to KORA must have a distinguishing
number on their licenses; parents subject to KORA must disclose that status in any
proceeding determining child custody, residency, and parenting time; and KORA
imposes severe, person felony sanctions for violating any KORA provision. Thompson,
slip op. at 32-35.

Reviewing KORA, as amended in 2011, in light of the Mendoza-Martinez factors,
we first determined that the statutory scheme resembled traditional forms of punishment
by being akin to public shaming and by replicating the circumstance of being on
probation or parole. Thompson, slip op. at 37-38. The latter circumstance also imposed an
12



affirmative disability or restraint on the offender, as did the difficulties in obtaining
employment and housing caused by KORA. Moreover, the financial obligations were
punitive in effect, when viewed from an offender's perspective. Slip op. at 39-40. Next,
we determined that the current KORA had a deterrent effect and was retributive in
character, before opining that KORA was not rationally connected to the nonpunitive
purpose of public safety. In other words, the statutory scheme is excessive in relation to
its regulatory purpose. Slip op. at 43. Consequently, we determined that the 2011 version
of KORA is punitive in effect and that the amended statutory scheme cannot be applied
retroactively to any sex offender who committed the qualifying crime prior to July 1,
2011. Slip op. at 44.

Given that Buser committed his crime in 2009, he cannot be subjected to the
subsequently enacted 25-year registration period in the 2011 version of KORA without
violating the Ex Post Facto Clause. The Court of Appeals decision to the contrary is
reversed. Buser will be subject to the KORA provisions that were in effect in 2009.

Reversed.

MICHAEL J. MALONE, Senior Judge, assigned.1

* * *




1REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 105,982 under
the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court
created by the appointment of Justice Nancy Moritz to the United States 10th Circuit Court of
Appeals.

13



BILES, J., dissenting: I dissent from the majority's decision in this case for the
reasons more fully stated in my dissent in Doe v. Thompson, 304 Kan. ___, ___ P.3d ___
(No. 110,318, this day decided). As explained there, I believe the majority asks and
answers the wrong question. Whether the Kansas Offender Registration Act (KORA) as
amended in 2011 violates the Ex Post Facto Clause of the United States Constitution is
entirely a federal question. We should apply the abundant federal caselaw where possible
to inform the analysis. The majority's approach disregards that caselaw.

As explained in my Thompson dissent, the applicable federal caselaw considers
similar burdens under other offender registration schemes. It compels me to conclude that
the 2011 KORA amendments do not violate the United States Constitution's Ex Post
Facto Clause and the United States Supreme Court would so hold. I would affirm the
Court of Appeals decision for the reasons I explain in Thompson.

NUSS, C.J., and LUCKERT, J., join in the foregoing dissent.