In a single day, the Kansas Supreme Court issues important constitutional opinions—and overrules them

|The Volokh Conspiracy |

I'm not sure I've ever seen anything quite like it. On Friday the Kansas Supreme Court issued decisions in three cases—State v. Buser, State v. Redmond and Doe v. Thompson—holding that Kansas's Offender Registration Act, requiring anyone previously convicted of various violent felonies, drug crimes or sex offenses to register with state authorities, cannot be constitutionally applied to people whose underlying felony convictions occurred before enactment of the registration statute in 2011.

The Kansas statute (KORA) requires all people previously convicted of covered offenses to provide a wide variety of identifying information to Kansas law enforcement agencies:

"KORA registration requires: alias dates or places of birth; temporary lodging information; telephone numbers; social security number; occupation; name of any anticipated employer and anticipated place of employment; photocopies of current driver's licenses and identification cards; aircraft and watercraft license plates and registration information; information concerning where motor vehicles, aircraft, and watercraft are habitually parked or otherwise kept; professional licenses, designations, and certifications; preconviction mental health treatment; schools attended or expected to be attended; travel and immigration documents; name and telephone number of probation, parole, or community corrections officer; email addresses; all online identities used on the Internet; any information relating to membership in online social networks; DNA exemplars; and the sex and date of birth of each victim.

It also requires quarterly updates (or sooner, if any of the information has changed) and a $20 processing fee(!) for each update, and further requires state officials to make all submitted information available on a publicly accessible website.

In each of the three cases, the court found—correctly, in my view—that application of the registration requirements to people whose felonies occurred prior to the 2011 enactment would violate the constitutional prohibition on ex post facto laws; by "making more burdensome the punishment for a crime after its commission," the statute was clearly punitive in nature, and could not, therefore, be applied as additional punishment to those who had already been punished (before 2011) for their crimes.

But on the same day, the court also issued State v. Petersen-Beard, rejecting a separate claim that application of the registration provisions was a violation of the prohibition on cruel and unusual punishment; in the course of its opinion, the court held that the registration provisions were not punitive (and could not, therefore, constitute cruel and unusual punishment), the court expressly overruled the three contrary holdings in the opinions issued earlier the same day.

This strange circumstance seems to have come about because the Kansas court was short-handed. (One of its seven members, Nancy Moritz, had recently been appointed to the U.S. Court of Appeals for the 10th Circuit.) The first three cases were heard and decided by the court composed of the six remaining justices and Senior Judge Michael J. Malone from the district court, sitting by designation. And each case had been decided by a 4-to-3 majority, with Malone in the majority.

But a new justice for the court—Caleb Stagall—was sworn in after the first three cases were heard, and he replaced Malone in the fourth case, where he was the swing vote in the opposite direction (and wrote the opinion).

It's all a bit unseemly. Notice that the outcomes in the first three cases have not changed; that is, the judgments in those three cases all stand and therefore the three individuals who brought the challenges in those cases will not be required to register, because the registration requirement can't be constitutionally imposed upon them.

But all other violent/drug/sex offenders in the state with convictions before 2011 will have to register—because the holdings in the first three cases (that the statute is punitive) have been overruled, and the law in Kansas is now to the contrary (the statute is not punitive, and cannot, therefore, be challenged under the Ex Post Facto Clause).

And that, of course, seems to violate the very fundamental notion, embedded in our idea of "due process of law," that like cases are to be treated alike—someone in precisely the same situation as Mr. Buser (or Mr. Redmond, or Mr. "Doe") will have to register (or face serious criminal penalties for failing to do so), while Messrs. Buser, Redmond and "Doe" will not.

And it's unfortunate, too, that the court ends up on the wrong side on the merits—these registration statutes, as I've argued many times before, are clearly designed to impose punishment on a particularly easy-to-vilify subgroup—but that's a subject for another day.