offenders seeking to avoid retroactive application of
provisions of the Kansas Offender Registration Act (KORA)
must, in order to satisfy the "effects" prong of
the test set forth in Kennedy v. Mendoza-Martinez,
372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963),
produce a record that distinguishes-by the "clearest
proof"- KORA's effect on those classes of offenders
from the Act's effects on sex offenders as a class.
of the judgment of the Court of Appeals in an unpublished
opinion filed May 8, 2015. Appeal from Crawford District
Court; Lori A. Bolton Fleming, judge. Judgment of the Court
of Appeals affirming the district court is affirmed. Judgment
of the district court is affirmed.
A. Kaul, of Kansas Appellate Defender Office, was on the
briefs for appellant.
Michael Gayoso, Jr., county attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.
Barbara Annemarie Hill entered an Alford plea to one
count of possession of pseudoephedrine with intent to
manufacture and one count of possession of methamphetamine.
At the time she committed these offenses-May 2, 2010-the law
required persons convicted of such crimes to register as a
drug offender, "unless the court ma[de] a finding on the
record that the possession of such product was intended to be
used to manufacture a controlled substance for [Hill's]
personal use." K.S.A. 2009 Supp. 22-4902(a)(11)(B). At
the time of her sentencing in December 2012, however, the
Kansas Legislature had removed the personal use exception.
See K.S.A. 2012 Supp. 22-4902(f)(2); see also L. 2011, ch.
95, sec. 2.
asked the court to apply the pre-2011 version of KORA and
make a finding that she possessed pseudoephedrine with the
intent to manufacture methamphetamine for her personal use.
The State argued that the current version of the statute
retroactively applied to Hill, though it conceded that if the
pre-2011 version applied, Hill would not be required to
register because it would stipulate that she had manufactured
methamphetamine for both sale to others and for personal use.
See State v. Mishmash, 295 Kan. 1140, 290 P.3d 243
(2012) (holding that defendant who had been convicted of
unlawful manufacture of a controlled substance was not
required to register where the defendant was manufacturing
the controlled substances for both personal use and for sale
court held a nonevidentiary hearing and, after taking the
matter under advisement, filed a journal entry stating that
the 2011 amendments to KORA applied to Hill and she was
required to register. Hill appealed the district court's
order regarding her registration requirement. The Court of
Appeals ultimately held that the "duty to register is a
civil penalty, not punitive, and retroactive application does
not violate the Ex Post Facto Clause of the United States
Constitution." State v. Hill, No. 111, 226,
2015 WL 2342392, at *2 (Kan. App. 2015) (unpublished
opinion). We granted her petition for review.
recently analyzed KORA in this context using the
intent-effects test set forth by the United States Supreme
Court and concluded lifetime sex offender registration does
not constitute "punishment" for purposes of
applying any provision of the federal Constitution. State
v. Petersen-Beard, 304 Kan. 192, 198-209, 377 P.3d 1127
(2016) (relying on the factors set forth in Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9
L.Ed.2d 644 ). We therefore held that the 2011 version
of KORA could not violate federal prohibitions against cruel
and unusual punishment. See 304 Kan. at 208. And not long
ago, we "explicitly extend[ed] the holding of
Petersen-Beard to apply to ex post facto
challenges." State v. Reed, 306 Kan.__, __ P.3d
__ (No. 110, 277, filed August 4, 2017), slip op. at 8.
to prevail, Hill must demonstrate that drug offenders as a
class are sufficiently distinguishable from the class of sex
offenders such that the effects of the law become punitive
rather than civil when applied to drug offenders. We recently
confronted this question in State v. Meredith, 306
Kan.__, __ P.3d __ (No. 110, 520, filed August 4, 2017). In
that case, we declined to hold that KORA registration is
punishment where "the record . . . is insufficiently
developed for [the defendant] to persuasively argue
KORA's allegedly punitive effects on drug offenders as a
class separate and distinct from sex offenders."
Meredith, 306 Kan. at__, slip op. at 6; see
Smith v. Doe, 538 U.S. 84, 92, 123 S.Ct. 1140, 155
L.Ed.2d 164 (2003) ("Because we 'ordinarily defer to
the legislature's stated intent, ' [citation omitted]
'"only the clearest proof" will suffice to
override legislative intent and transform what has been
denominated a civil remedy into a criminal penalty, '
[citations omitted]."); see also State v.
Myers, 260 Kan. 669, 923 P.2d 1024 (1996) (holding that
the legislature's intent in enacting KORA was to create a
nonpunitive civil regulatory scheme); Doe v.
Thompson, 304 Kan. 291, 373 P.3d 750 (2016) (upholding
Myers' determination that the legislature
intended to enact a nonpunitive scheme), overruled on
other grounds by Petersen-Beard, 304 Kan. 192. We
further explained in Meredith that such an inquiry
"requires a robust record because the effects prong of
the applicable legal test obliges an appellate court to
premise its legal conclusion on at least some fact-intensive
questions." Meredith, 306 Kan. at __, slip op.
claim suffers from the same flaw. She is unable to satisfy
the "clearest proof" standard because the record
below has not been sufficiently developed. As a result, we
cannot-at this time-hold that KORA's registration
requirements as applied to drug offenders are punishment and
subject to the limitations of the Ex Post Facto Clause.