The Supreme Court of Kansas, Or Maybe It’s Oz
Apr. 27, 2016 (Mimesis Law) — Kansas. Who knew it would be Kansas?
Unless you’ve been skipping your daily dose of court news or blog posts (including here on Fault Lines, over at Simple Justice, at Volokh, at Sentencing Law and Policy, at . . . .), you’ve at least run across reference to the Supreme Court of Kansas and its what-the-fuck-are-they-doing-? series of rulings last Friday. Just in case, here’s the first paragraph of Justice Caleb Stegall’s opinion in State of Kansas v. Henry Petersen-Beard for the 4-3 majority.
Henry Petersen-Beard challenges his sentence to lifetime postrelease registration as a sex offender pursuant to the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., as cruel and unusual punishment in violation of § 9 of the Kansas Bill of Rights and the Eighth Amendment to the United States Constitution. Because we find that lifetime registration as a sex offender pursuant to KORA is not punishment for either Eighth Amendment or § 9 purposes, we reject Petersen-Beard’s argument that it is unconstitutionally cruel and/or unusual and affirm his sentence. In so doing, we overrule the contrary holdings of State v. Redmond, 304 Kan. ___, ___ P.3d ___ (No. 110,280, this day decided), State v. Buser, 304 Kan. ___, ___ P.3d ___ (No. 105,982, this day decided), and Doe v. Thompson, 304 Kan. ___, ___ P.3d ___ (No. 110,318, this day decided).
I need to be clear about this. On Friday, the Kansas high court issued four opinions on the constitutionality of that state’s sex offender registration law (KORA). Three of those opinions said that the law cannot be applied retroactively because the Ex Post Facto Clause of the Constitution prohibits retroactive application of punitive laws and KORA is punitive. The fourth opinion, Pertersen-Beard, says that KORA does not violate constitutional prohibitions against cruel and unusual punishment because it is not punitive.
And because KORA is not punitive, the court said, we are overruling the decisions we are making today saying that it is. Except for Redmond, Buser, and Doe. For them it’s punitive – even though it’s not. And for everyone else, it’s not punitive – even though we are also saying today that it is.
Along with being confusing as hell, this is all somewhere between disingenuous and outright dishonest. And as Justice Lee Johnson’s dissent makes clear, it’s also calculated gamesmanship (citations and some surplussage deleted and paragraph breaks added for ease of reading and clarity).
The “overruled” Ex Post Facto cases dealt with the question of whether article I, § 10 of the United States Constitution—the Ex Post Facto Clause—prohibited the retroactive application of the 2011 amendments to the Kansas Offender Registration Act (KORA). An initial consideration was whether KORA was even subject to the Ex Post Facto Clause. The three cases were set together and heard on this court’s docket on September 11, 2014.
At that time, and for some 3 months thereafter, a position on this court was open due to the appointment of our colleague, Nancy Moritz, to the United States 10th Circuit Court of Appeals. Consequently, the Chief Justice utilized his constitutional and/or statutory authority to assign a senior district court judge as the seventh member of this court to hear and decide cases coming before the court during the vacancy period, which included the September 2014 docket.
Notably, our constitution does not restrict or limit the power and authority of a temporarily assigned justice nor does it restrict or limit the precedential effect of the decisions issued by a supreme court that includes a justice that is temporarily assigned. Indeed, the Chief Justice often announces at oral argument that a temporarily assigned jurist will be fully participating in the decision of the court.
A majority of the constitutionally constituted court hearing the Ex Post Facto cases voted to hold that KORA’s statutory scheme, after the 2011 amendments, was so punitive in effect as to negate any implied legislative intent to deem it civil, so that it was subject to the Ex Post Facto Clause’s prohibition on retroactive application. The decision specifically left intact all provisions of the 2011 iteration of KORA for any person who committed a qualifying offense after July 1, 2011, the effective date of the 2011 amendments. In other words, the majority opinion in the Ex Post Facto cases did not hold KORA unconstitutional, but rather it held that the retroactive application of KORA’s amendments was unconstitutional. The prohibitions against cruel and/or unusual punishment in our federal and state constitutions were neither raised as issues nor discussed by this court in the Ex Post Facto cases.
By August 2015, the opinion in Thompson, the lead Ex Post Facto case, was ready to be filed. By that time, the vacancy on this court had been filled and this case had been set on a docket to be heard by the newly constituted court the following month, September 16, 2015, i.e., a year after the arguments in Thompson. Thereupon, notwithstanding that the outcome for the Ex Post Facto litigants would be unaffected by any subsequent ruling in another case, a majority of the Ex Post Facto court ordered that the opinions in those cases were to be held in abeyance pending the newly constituted court’s hearing and resolution of Petersen-Beard’s cruel and unusual punishment case.
Then, after a majority of the court in this case determined that it could overrule the holdings in the Ex Post Facto cases for all future litigants—as disclosed in the majority opinion above—a majority of the Ex Post Facto court ordered that the release of the Ex Post Facto cases was to be further delayed until this Petersen-Beard opinion was ready to be filed.
The apparent rationale for the delay was to make the holding in the Ex Post Facto cases applicable solely to the parties in those cases. Plainly stated, all of those litigants won on appeal, and the KORA amendments cannot be applied to them. But they had to wait for many months—unnecessarily in my view—to reap the benefits of their respective wins. I find that to be a denial of justice.
That’s way long, even as I’ve cut it slightly. So here’s the short version: We decided the three Ex Post Facto cases in favor of Redmond, Thompson, and Doe and had the opinions written in August. But by then there’d been a change in the court’s personnel, and while the new majority couldn’t just wipe out those three cases, it figured out how to eviscerate them. It refused to release the opinions until it had written the opinion in this case overruling them and arranged for them all to be released at the same time. It was a cheap, cruel, trick.*
I had a woman in my office today. Her son was convicted of crimes she was quite adamant he had not committed, and he was serving a lengthy prison sentence. She’d never been in trouble with the law, she told me. She’d never been in the courthouse before her son’s trial. But she attended every day of that trial. For two weeks she’d sat in the courtroom and watched a sham version of justice.
How, she asked, could they convict him? There was no evidence against him, she said. His witnesses weren’t allowed to testify, she said. How can that be?
The panel of judges in Ohio who sentenced Johnnie Baston to be executed, described him as a “gun-toting, false-macho, selfish and violent mess,” and said that his “adult [criminal] record was minor in nature, owing large part to the fact that he was barely twenty years of age at the commission of this offense.” Aside from the fact that Baston had shot his victim, the rest of that is just shit the panel made up to justify killing him. The panel did all sorts of things wrong in its effort to justify a death sentence.
When the Ohio Supreme Court affirmed Baston’s conviction and death sentence, it said that the panel was certainly not biased. Generally, they said, they’d follow a presumption that the panel wasn’t biased. No need for that here. They knew the panel wasn’t biased and prejudiced in this case because “the panel expressly stated that it engaged in a ‘dispassionate review.'” Can’t ask for more than that. They executed Baston 5 years ago.
Over at Gamso – For the Defense, my blog which I have been sadly neglecting, I write frequently about how the Rule of Law, that thing they teach in 5th grade civics classes and in law schools, and the glories of which we spout on Law Day,** is a sham. Rather, we suffer the Law of Rule. It’s about power. And it’s about how they do it ’cause they can.
*And, of course, it’s wrong. Of course these laws are punitive.
**Ironically, Law Day is May 1st, May Day, which has its British origins as a pagan spring planting festival celebrating fertility with drunken revelry, Morris dancing, Maypoles, all overseen by the Lord of Misrule!
Main Image of Chief Judge Lawton Nuss via http://www.kscourts.org/.