BY THE COURT
a defendant criminally liable for the failure to pay the $20
registration fee under the Kansas Offender Registration Act
violates the defendant's procedural-due-process rights as
applied in this case because the defendant had no reasonably
available path to get a court finding of indigency.
from Wyandotte District Court; Michael A. Russell, judge.
Eddinger, of Kansas Appellate Defender Office, for appellant.
Christopher L. Schneider, assistant district attorney, Mark
A. Dupree Sr., district attorney, and Derek Schmidt, attorney
general, for appellee.
Malone, P.J., Leben, J., and Kevin P. Moriarty, District
Kansas law, convicted sex offenders must register four times
a year with their local sheriff. Each time, they must pay the
sheriff a $20 registration fee- and failing to pay the fee is
dollars is not a lot of money. But it's easy to imagine
circumstances in which a convicted sex offender-publicly
identified in the community through this registration-might
have trouble getting a job. And other events, like illness or
disability, might intervene too.
you can't imprison someone in the United States simply
because the person has no money; doing so would violate the
Fourteenth Amendment to the United States Constitution.
Bearden v. Georgia, 461 U.S. 660, 661, 103 S.Ct.
2064, 76 L.Ed.2d 221 (1983). So the Kansas Legislature has
provided a way for an offender to be excused from having to
pay the fee on account of indigency. It's the process for
being excused from the $20 registration fee that's at the
heart of Frederick Owens' case.
statute providing an exception for offenders who can't
afford the $20 registration fee applies only when,
"prior to the required reporting and within
the last three years, [the offender has] been determined
to be indigent by a court of law, and the basis for that
finding is recorded by the court." (Emphasis added.)
K.S.A. 2014 Supp. 22-4905(k)(3). What the statute doesn't
do is tell an offender how to get a court determination of
indigency before the required reporting period or
specifically authorize a court proceeding for that purpose.
has challenged the constitutionality of this statute-as
applied to him-on the ground that he wasn't given
procedural due process. Specifically, he argues a denial of
due process "by the State's failure to inform him
concerning his right to have the registration fee waived and
the process he was required to follow to obtain the
waiver." We agree that the State didn't provide
sufficient process to Owens because the applicable statute
didn't explicitly give him a way to get before a judge
who could determine whether he was too poor to pay the $20
fee. Because Owens was denied due process, we reverse his
that overview, let's review Owens' case and the issue
before us more fully. He's required to register because
of a 2003 conviction for aggravated indecent liberties with a
child. That triggered the requirement that he register with
the sheriff four times a year-and that he pay a $20
registration fee each time. See K.S.A. 2014 Supp. 22-4905(k).
Failing to pay the fee is a crime (a misdemeanor the first
time, a felony after that). K.S.A. 2014 Supp. 22-4903(c)(3).
claims he wasn't able to pay the registration fee in
January, April, and July 2014 because he had been injured,
couldn't work for medical reasons, and also had to make
child-support payments. The State responds that Owens could
have "request[ed] a court to find that he [was]
indigent." The State has not ...