COMMONWEALTH OF KENTUCKY AND DENNIS GILBERT HALL V. COMMONWEALTH OF KENTUCKY
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RENDERED: FEBRUARY 21,2002
TO BE PUBLISHED
COMMONWEALTH OF KENTUCKY
APPELLEE
AND
2000-SC-0820-DG
DENNIS GILBERT HALL
V.
ON REVIEW FROM COURT OF APPEALS
99-CA-5 18-M R
WOODFORD CIRCUIT COURT NO. 92-CR-52
COMMONWEALTH OF KENTUCKY
AND
APPELLANT
APPELLEE
2000-SC-1076-DG and 2000-SC-0961 -DG
COMMONWEALTH OF KENTUCKY
APPELLANT/CROSS APPELLEE
APPEAL FROM COURT OF APPEALS
1999~CA-1923-MR
JEFFERSON CIRCUIT COURT NO. 78-CR-226
V.
APPELLEE/CROSS APPELLANT
NATHANIEL SIMS
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
AFFIRMING IN PART
REVERSING IN PART AND REMANDING
These cases arise out of three different Court of Appeals’ opinions rendered by
three different panels concerning the constitutionality of the Sexual Offender
Registration Act, KRS 17.500 et seq. commonly known as “Megan’s Law.” The
separate opinions of the Court of Appeals are diverse, however, all three opinions
involve an appeal from a circuit court Sex Offender Risk Determination, classifying each
of the defendants being released as a “high-risk sex offender,” requiring lifetime
registration unless redesignated. Hyatt v. Commonwealth affirmed the constitutionality
of the statutes but reversed and remanded for a New Risk Assessment hearing. In m
v. Commonwealth, a split panel of the Court of Appeals affirmed the order. In the third
case, Commonwealth v. Sims, which also includes a cross-appeal, the panel
unanimously reversed and vacated, declaring the entire statutory system
unconstitutional as a violation of the state constitutional separation of powers
provisions. This Court accepted discretionary review in order to reach a definitive
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disposition of the constitutional questions involved. A companion case, Martinez v.
Commonwealth, 2000-SC-1135TG,
will be considered separately.
We have carefully reviewed all of the authorities and arguments raised by the
respective parties in these appeals. We will briefly discuss the facts and procedural
histories of each case. As far as possible, we have combined common issues or cross
referenced them in the opinion. We address individual issues separately as needed.
Legislative History
In response to a general nationwide public outrage concerning the abduction and
sexual abuse of children a number of states have attempted to find legislative ways to
protect such children. Lawmakers have expressed a particular concern for the high rate
of recidivism by perpetrators of sex crimes. New Jersey gained national recognition
after it adopted a sex offender registration law which has become known as “Megan’s
Law,” named after a child abducted, raped and murdered by a known child molester
who had moved across the street from the child’s family without their knowledge. The
constitutionality of the New Jersey legislation was upheld by the New Jersey Supreme
Court in Doe v. Poritz, 662 A.2d 367 (N.J. 1995).
In 1994. Congress adopted the Jacob Wetterling Crimes Against Children and
Sexually Violent Offenders Registration Act to encourage individual states to adopt sex
offender registration statutes. If a state did not adopt some version of Megan’s Law with
certain provisions, Congress could withhold IO percent of the funds that the state would
ordinarily receive under 42 U.S.C. $3765, the Omnibus Crime Control and Safe Streets
Act of 1968.
In response, the Kentucky General Assembly adopted the first version of
Megan’s Law in 1994, codified as KRS 17.500-540 which required persons to register in
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certain circumstances after being convicted of a sex crime. Under this Act, offenders
were required to register for a period of ten years following their discharge from
confinement or ten years following their maximum discharge date on probation, shock
probation, conditional discharge, parole or other form of early release, whichever period
was greater. See KRS 17.520, which was repealed in part and amended in part in
1998. Failure to register would subject the person to a charge of a Class A
Misdemeanor. The law applied to any person who pled guilty or was convicted of a sex
crime after July 15, 1994.
In 1998, the legislature amended the sex offender registration laws and imposed
additional requirements of classification of offenders based on their potential of
recidivism
and public notification depending on the classification. The principal change
from 1994 to 1998 was the creation of a classification as to the potential for recidivism.
The law also provided for a risk assessment. The 1998 Act, KRS 17.500540 and KRS
17.550-991 applied to persons individually sentenced or incarcerated after July 15,
1998. KRS 17.520, 17.552, 17.570-578 and 17.991 did not become effective until
January 15, 1999.
In 2000, the General Assembly again amended the statute so as to provide for
the elimination of any need for a hearing in the risk assessment procedure and
extended the registration requirements to include an Internet Web site which posted the
relevant information of the convicted sex offender including a photograph and address.
I. Hyatt v. Commonwealth, 2000-SC-0676-DG
In this case, Hyatt sexually abused his younger sister over a period of time. In
1991, he pled guilty to one count of first-degree sexual abuse and the circuit court
sentenced him to one year in prison. The sentence was suspended and Hyatt was
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probated for a period of three years. After the trial judge revoked his probation, Hyatt
pled guilty to additional charges of second-degree rape and second-degree sodomy. In
1993, the circuit court sentenced him to five years in prison on each count to be served
consecutively.
On January 11, 1999, the circuit court ordered Hyatt, an inmate, to undergo a sex
offender risk assessment pursuant to KRS 17.570. That statute provides:
Upon conviction of a “sex crime” as defined in KRS 17.500
and within sixty calendar days prior to the discharge,
release, or parole of a sex offender, the sentencing court
shall order a sex offender risk assessment by a certified
provider for the following purposes: (a) To determine
whether the offender should be classified as a high,
moderate or low risk sex offender; (b) To designate the
length of time a sex offender shall register pursuant to KRS
17.500 to KRS 17.540 and (c) To designate the type of
community notification that shall be provided upon the
release of the sex offender pursuant to KRS 17.500 to
17.540.
Hyatt was represented by counsel at a hearing and on the morning of the hearing
the risk assessment arrived by facsimile and the circuit court admitted the report. Hyatt
did not present any evidence to counter the conclusions of the report and the court
relied on the report exclusively to classify Hyatt as a high-risk sex offender. Hyatt
appealed this classification to the Court of Appeals which affirmed in part, reversed in
part and remanded. The Court of Appeals noted the differences between the 1994 and
1998 Acts in that the 1994 Act required a sex offender to register within two weeks of
his release from prison and to remain registered for ten years. In 1998, the General
Assembly amended the statute to require sex offenders to be classified as low,
moderate or high risk offenders which in turn would determine the length of time the
defendant was required to register and who would be notified of such registration.
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The Court of Appeals panel rejected the constitutional objections of Hyatt to the
statutory system and found that neither double jeopardy, ex post facto, nor due process
rendered the statute unconstitutional. The Court of Appeals did reverse and remand on
procedural due process grounds, holding that Hyatt was entitled to call expert witnesses
and to receive timely notice of the Risk Assessment Report.
Hyatt argues that the Court of Appeals erred in holding that the 1998 and 2000
versions of KRS 17.500 et seq. on their faces, and as applied to him, did not violate the
ex post facto clauses of the state and federal constitutions. He contends that the
retroactive application of the 1998 and 2000 statutes violates his state and federal
protection against ex post facto legislation and that the Kentucky Registration and
Notification Statutes were not intended to apply to persons who were convicted before
July 15, 1994. He was assessed under the 1998 Act.
Hyatt also maintains that the Court of Appeals erred in determining that he had
no protected liberty interest and also failed to provide the circuit court with sufficient
guidance on the procedures that it should follow upon remand, thus violating his federal
and state constitutional due process rights.
The Commonwealth responds that the Sex Offender Registration Statute does
not violate the constitutional protection against ex post facto laws and does not violate
liberty interests in privacy or reputation. It claims that the Court of Appeals provided the
trial court with sufficient guidance upon rehearing for a new risk assessment.
A. Ex post facto
There is no question that the registration statute has a retroactive effect in this
case. At the time Hyatt committed the sex crimes against his younger sister, he was not
required to register as a sex offender. However, Hyatt is not able to satisfy the second
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prong of the ex post facto test set out in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960,
67 L.Ed.2d 17 (1981) or Lattimore v. Corrections Cabinet, Ky.App., 790 S.W.2d 238
(1990). Graham, supra, sets out a two-pronged test to establish whether a criminal or
penal law was ex post facto to the effect that “it must be retrospective, that is, it must
apply to events occurring before its enactment, and it must disadvantage the offender
affected by it.” See also Lvnce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63
(1997).
In Lattimore, supra, we have followed the same analysis. We agree with the
rationale of the Court of Appeals in Lattimore to the effect that ex post facto laws must
relate to a very real and direct effect on the actual time the prisoner remains behind
bars which could include an increase in punishment. That is not the case here.
Registration and Notification Statutes across the nation have consistently been
held to be remedial measures, not punitive, and therefore do not amount to punishment
or increased punishment. The United States Supreme Court in Kansas v. Hendricks,
521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), rejected constitutional
challenges to Kansas’ Sexually Violent Predator Act which authorized civil commitment
procedures for an individual who previously had been convicted of a sex crime and was
subsequently found to be a sexually violent predator in a civil proceeding. The U.S.
Supreme Court rejected claims that the statute imposed punishment in violation of the
ex post facto clause. Most state and federal courts have determined that sex offender
classification and registration, including community notification, does not violate the ex
post facto provisions of either the state or federal constitution. See e.a. E.B. v.
Verniero, 119 F.3d 1077 (3rd Cir. 1997); Arizona Dept. of Public Safety
v. Superior
Court, 949 P.2d 983 (Ariz. Ct.App.1997) review denied, 964 P.2d 477 (Ariz. 1998);
Kellar v. Fayetteville Police Dep’t, 5 S.W.3d 402 (Ark. 1999); People v. Castellanos, 982
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P.2d 211 (01.1999); Rav v. State, 982 P.2d 931 (Idaho 1999); Spencer v. O’Connor,
707 N.E.2d 1039 (Ind. Ct.App. 1999); In re Detention of Garren, 620 N.W.2d 275 (Iowa
2000); State v. Wilkinson, 9 P.3d 1 (Kan. 2000); State v. Torres, 574 N.W.2d 153 (Neb.
1998); Meinders v. Weber, 604 N.W.2d 248 (S.D. 2000)
The Sixth Circuit Court of Appeals reviewed the Sex Offender Registration and
Notification Statutes of Tennessee and determined that the system did not impose
punishment and thus did not violate the ex post facto clause of the federal constitution.
See Cutshall v. Sundauist, 193 F.3d 466 (6th Cir. 1999) cerl. denied, 529 U.S. 1053,
120 S.Ct. 1554, 146 L.Ed.2d 460 (2000). See also Doe. supra. As stated in &, what
counts is the purpose and design of the statutory provision, its remedial goal and
purposes and not the resulting consequential impact that may inevitably but incidentally
flow from it. See also Russell v. Greaoire, 124 F.3d 1079 (9th Cir. 1997); State v. Cook,
700 N.E.2d 570 (Ohio 1998); Commonwealth v. Mountain, 711 A.2d 473 (Pa., 1998)
although apparently at variance with Commonwealth v. Williams, 733 A.2d 593 (Pa.
1999).
We are persuaded that the designation of sexual predator is not a sentence or a
punishment but simply a status resulting from a conviction of a sex crime. Cf. Fletcher
v. State, 699 So.2d 346 (Fla. Dist. Ct.App. 1997). Another Florida case, Collie v. State,
710 So.2d 1000 (Fla. Dist. Ct.App. 1998), cert. denied, 525 U.S. 1058, 119 S.Ct. 624,
142 L.Ed.2d 563 (1998), correctly noted that registration requirements did not constitute
a disability or restraint; the registration did not place limitations on the activities of the
offender, and the registration requirement was insignificant in comparison to the goal of
protecting the public.
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Texas and Illinois have also held that because the sexual offender registration
requirement is remedial in nature, it does not impose punishment for constitutional
purposes and is not open to an ex post facto challenge. See People v. Malchow, 739
N.E.2d 433 (Ill. 2000); Saldana v. State, 33 S.W.3d 70 (Tex.App. 2000).
The Kentucky 1998 and 2000 Sex Offender Registration Statutes are directly
related to the nonpunitive goals of protecting the safety of the public. The statutes in
question do not amount to a separate punishment based on past crimes.
The Registration and Notification Statutes are reasonably related to the
nonpunitive goals of protecting the public and facilitating law enforcement. Doe v.
Pataki, 120 F.3d 1263 (2nd Cir. 1997). Registration is a reasonable and proper means
for achieving its purpose and completely consistent with the exercise of the police
power of the Commonwealth to protect the safety and general welfare of the public.
Snvder v. State, 912 P.2d 1127 (Wyo. 1996). Any potential punishment arising from the
violation of the Sex Offender’s Registration Act is totally prospective and is not
punishment for past criminal behavior. See Kitze v. Commonwealth, 475 S.E.2d 830
(Va.Ct.App. 1996). Although registration might impose a burden on a convicted sex
offender, registration is merely a remedial aspect of the sentence. p-1 supra.
See Kitze
The registration and notification required by the statutes are nonpunitive and provide
only the slightest inconvenience to the defendant, although they provide the
overwhelming public policy objective of protecting the public.
We are not persuaded by the citation to several Louisiana state cases that held
the retroactive application of sex offender registration statutes violates the ex post facto
clause of the Louisiana and federal constitutions. Recently, the Louisiana Supreme
Court in State ex rel. Olivieri v. State, 779 So.2d 735 (La. 2001) held that retroactive
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application of the sex offender registration system does not violate the state or federal
ex post facto laws. Moreover, the Louisiana Supreme Court held that the sex offender
registration system which was applicable to all sex offenders without ascertaining the
likelihood of recidivism, was not so obtrusive so as to be punitive rather than remedial or
regulatory.
We believe that the Louisiana Supreme Court has rendered the final word
on that state’s position.
It is the decision of this Court that the opinion of the Court of Appeals holding that
the sex offender classification, registration and notification system is constitutional must
be affirmed. The statutes do not amount to an ex post facto violation. The registration
laws do not punish sex offenders. They have a regulatory purpose only. The
dissemination of information has never been considered a form of punishment. The Act
in question does not impose any additional punishment on Hyatt, and are not ex post
facto laws under either the United States Constitution or the Kentucky Constitution.
We further agree with the Court of Appeals that this case should be remanded to
the circuit court because of the untimely arrival of the Risk Assessment Report. In
addition, we believe the case should be remanded for the failure of Dr. Wagner to
attend the hearing. The procedural due process rights of Hyatt were violated at the risk
assessment hearing because the report arrived too late to provide him with notice of its
contents, to allow his counsel to read and consider it and to allow sufficient time for
preparation including the calling of expert witnesses, if any, to counter the conclusions
of the report. We remand this case for an evidentiary hearing, in accordance with the
pre-2000 amendments, which would include the rights to present an expert witness.
We agree with the Court of Appeals that the failure of the victim to testify is of no
consequence because this hearing involves a risk assessment, not a criminal trial.
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Hyatt waived his constitutional rights to confrontation by pleading guilty. Centers v.
Commonwealth, Ky.App.
799 S.W.2d
51 (1990).
B. Privacy
Hyatt argues that he has a nontrivial privacy interest under both the federal and
state constitutions to prevent the Commonwealth from disclosing his personal
information including his home address to the public. The sex offender registration
statutory system does not violate any liberty interests in privacy or reputation that can
be inferred from Section Fourteen of the Kentucky Constitution. Although rights of
privacy have been argued in many ways, it would appear there is no specific language
about the “right to privacy” as such in either the federal or state constitution. As noted
in Doe v. Poritz, we must decide whether the intrusion on the right of privacy in regard
to address and photographs is justified by balancing the governmental interest in
disclosure against the private interest in confidentiality. In that case, after considering
all the factors, the Supreme Court of New Jersey found that the state interest in public
disclosure substantially outweighed any interest in privacy. “There is an express public
policy militating toward disclosure: the danger of recidivism posed by sex offenders.
The state interest in protecting the safety of members of the public from sex offenders is
clear and compelling.” Doe. We must agree.
The Commonwealth of Kentucky has a serious and vital interest in protecting its
citizens from harm which outweighs any inconvenience that may be suffered because of
the notification and registration provisions. The statute clearly serves a public policy
and is a wise use of government resources all of which is to be decided by the
legislature. Cf. Sisters of Charity Health Systems, Inc. v. Raikes, Ky., 984 S.W.2d 464
(1998); Commonwealth v. Allen, 980 S.W.2d 278 (1998).
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The argument by Hyatt that registration and notification violate his right of privacy
has been rejected by most of the states that have enacted such legislation, as well as
the federal courts. See e.g. Paul P. v. Verniero, 170 F.3d 396 (3d Cir. 1999); Russell v.
Gregoire, supra; Lanni v. Enaler, 994 F. Supp. 849 (E.D.Mich. 1998);.b;
Commonwealth v. Mountain, 711 A.2d 473 (Pa. 1998).
Matters which have been
exposed to public view may be disclosed without implementing privacy interests. See
Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); In re Mever, 16
P.3d 563 (Wash. 2001).
The Illinois Supreme Court in People v. Malchow, 739 N.E.2d 433 (III. 2000)
rejected the argument that registration, which included home address, fingerprints and a
photograph, infringed on the right to privacy under the United States Constitution.
Indiana has also rebuffed a similar challenge concerning public dissemination of
information regarding crime in order to allow the public to protect themselves. See
Spencer v. O’Connor, 707 N.E.2d 1039 at 1043 (Ind.Ct. App. 1999). As noted in
Spencer, supra, a significant part of the information contained in the registration is
already in the public domain and is accessible by the public. The compilation of the
information in one place does not add a punitive consequence to an otherwise
regulatory measure. The information is not truly personal data that is subject to privacy
because a convicted sex offender never had a reasonable expectation of privacy in
regard to the information that is now consolidated and posted on the sex offender
registry.
Public notification by means of the Internet has been determined not to violate
the right of privacy in other jurisdictions. See Femedeer v. Haun, 227 F.3d 1244 (10th
Cir. 2000); State v. Stevens, 992 P.2d 1244 (Kans. Ct.App. 1999). The Court of
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Appeals correctly found that neither the federal nor the state constitution prohibited the
disclosure of such information when the public health or safety is involved.
C. Guidance on Risk Assessment
Hyatt contends that the Court of Appeals failed to provide the circuit court with
adequate guidance to hold a constitutionally sufficient risk assessment hearing upon
remand. We disagree.
The argument by Hyatt that the Court of Appeals did not address the argument
that the definition of sex offender contained in the 1998 version of KRS 17.550(2)
presumed that he was a sex offender even before he appeared for the risk assessment
hearing is without merit because he never raised such a claim of error before the Court
of Appeals. Consequently, that court had no responsibility to address the claim of error.
However, by pleading guilty to second-degree rape and second-degree sodomy
and upon notification of his impending release from prison, he was properly assessed
for the sex offender registration program although he now argues he does not fit the
definition. KRS 17.51 O(2) reads as follows:
Any person eighteen (18) years of age or older at the time of
the offense or any youthful offender who has committed or
attempted to commit a sex crime shall, within ten (10) days
after his release by the court, the parole board, or the
cabinet, register with the appropriate local probation and
parole office in the county in which he resides.
This definition is used only for the purpose of actual risk assessment
determinations. KRS 17.51 O(2) relates to which persons are required to register.
Hyatt also claims that the Court of Appeals failed to specify the exact nature of
the burden of proof. However, once again, he failed to raise the issue in the Court of
Appeals and thus the court had no opportunity or duty to address the question. KRS
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17.500 et seq. sets out the guidelines for the trial court to follow upon rendering a risk
assessment determination. The trial judge is required to review all evidence presented
by both sides. The trial judge did follow such a requirement and there is no error.
The issue regarding the reliability of the evidence submitted during the risk
assessment test was not properly presented to the Court of Appeals. It is our view on
the merits of the question that the trial judge correctly exercised his authority in
accepting the results of the risk assessment evaluation without qualifying the tests
pursuant to Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993) or Kumho Tire Co.. Ltd. v. Carmichael, 526 U.S. 137,
119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The trial judge is not required to hold an
actual hearing in order to comply with Dauber-t: Kumho, supra, at 152, 119 S.Ct. at
1176, 143 L.Ed.2d at 252; Nelson v. Tenn. Gas Pipeline, 243 F.3d 249 (6th Cir. 2001).
The Court of Appeals correctly held that Hyatt did not have the right to confront
his victim because such a right has generally been held to only apply to trials as
distinguished from a risk assessment hearing. We recognize the fact that Hyatt on
direct appeal to the Court of Appeals did not raise the issues of whether he was
entitled to prehearing discovery or that the Commonwealth must devise a notification
plan that accounts for the actual level of risk that is posed to the community.
Finally, Hyatt can cite no authority that supports his argument that the
Commonwealth must prove by clear and convincing evidence that the high risk
classification, as well as its proposed notification plan are justified. The statute sets out
specific guidelines for the trial judge to follow in making a determination of the risk.
The statute does not place a “clear and convincing evidence” standard of proof
element on the Commonwealth.
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It is the decision of this Court that the opinion of the Court of Appeals is affirmed
in all respects which means that a remand is necessary because the procedural due
process rights of Hyatt were violated. The Act is constitutional as applied.
II. Hall v. Commonwealth, 2000~SC-0820-DG
This appeal was heard at oral argument with the three other sex offender
registration cases. It involves an appeal from an opinion of the Court of Appeals which
affirmed an order of the circuit court which found Hall to be a high risk sex offender and
required registration and notification.
The questions presented are whether the circuit court had jurisdiction to conduct
the hearing; whether the statutes violate the separation of powers doctrine; and
whether it was error to allow the introduction of the testimony of an expert witness
without determining that the evidence was reliable. The primary issue is whether the
1998 Sexual Offender Registration Statute as enacted and applied violates separation
of powers principles.
Hall, then 22 years old, was convicted of first-degree sexual abuse and firstdegree sodomy in 1992. He was sentenced to a total of seven years in prison. He
was paroled in 1996, and as a condition of his parole, he was directed to attend a sex
offender treatment program. A year later, his parole was revoked when he failed to
continue the treatment program. Also in that year, he was charged with violating the
Child Pornography Prevention Act by having in his possession visual depictions
obtained from the Internet of minors appearing to engage in sexually explicit conduct
prohibited by 18 U.S.C. 2252(A).
Prior to his release from his state conviction, the circuit judge ordered Hall to
undergo a sex offender risk assessment pursuant to KRS 17.570. He was taken to the
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Kentucky State Reformatory where the assessment was performed by a “certified
provider,” a psychologist, who after interviewing Hall and conducting a series of tests,
wrote a report that Hall exhibited a “high risk to reoffend sexually.” Subsequently, a
hearing was conducted in circuit court pursuant to KRS 17.570(4) where Hall,
represented by counsel, sought to have the trial judge dismiss the proceeding as a
violation of his constitutional protection against double jeopardy. He also challenged
the sex offender Risk Assessment Report as being inadmissible as evidence because
the author of the report was not present for either direct or cross-examination. The
circuit judge denied the motion to dismiss because he did not believe the rules of
evidence prohibiting the admission of hearsay were applicable to the proceeding which
was similar to a preliminary hearing or parole revocation hearing.
Hall argues that the circuit judge erred in holding the hearing because he did not
have jurisdiction and that KRS 17.500 et seq. violates the doctrine of separation of
powers. He also claims that the circuit judge erred when he allowed the introduction of
hearsay testimony of an expert witness without determining that the evidence was
reliable. He further argues that the Court of Appeals committed error when it he’ld that
KRS 17.500 et seq. allowed the legislature to make determinations concerning
evidence which are reserved for the judiciary.
The Commonwealth responds that the sentencing court had proper jurisdiction
to conduct the risk assessment hearing. It argues that the legislature had the express
power to determine the original jurisdiction of circuit and district courts. It also asserts
that the trial judge correctly used the recommendations of the certified provider during
the risk assessment hearing. The Commonwealth states that classification hearings
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are similar to probation and parole hearings and may be conducted in accordance with
minimum requirements of due process.
A. Jurisdiction--Separation of Powers
Although this issue is not properly preserved for appellate review, this Court will
consider the arguments presented.
We acknowledge that the legislature, pursuant to the constitution, has express
power to determine the original jurisdiction of circuit and district courts. Ky. Const. 5s
112(5) and 113(6). See also KRS 23A.010. When the legislature does not specifically
assign jurisdiction of a particular matter to the district court, jurisdiction rests in the
circuit court.
The General Assembly has enacted the declaratory judgment statute, KRS
418.040 et seq., which has been held constitutional by this Court in Black v. Elkhorn
Coal Core., 233 Ky. 588, 26 S.W.2d 481 (1930). It has also enacted the habeas
corpus statutes encompassed in KRS 419.020 et seq. and the shock probation statutes
in KRS 439.265 to 267. The latter statutes have been held to be constitutional in
Commonwealth v. Williamson, Ky., 492 S.W.2d 874 (1973). See also Commonwealth
v. Gross, Ky., 936 S.W.2d 85, 87 (1996).
This Court has recognized the authority of the legislature to enact statutes
regarding the jurisdiction of the court. See Kuprion v. Fitzaerald, Ky., 888 S.W.2d 679
(1994); McElroy v. Taylor, Ky., 977 S.W.2d 929 (1998). Here, the legislature assigned
to the circuit courts the duty of conducting classification hearings in connection with a
legislative act requiring assessment for the purpose of community notice.
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B. Provider’s Report
The procedural due process rights of Hall were violated at the risk assessment
hearing because the author of the report failed to attend. Consequently, this case is
remanded to the circuit court to conduct an evidentiary hearing in accordance with the
pre-2000 amendments. Such a hearing would require the attendance of the author of
the report as well as the right of Hail to call expert witnesses to rebut the same. The
trial judge has the authority to accept the results of the risk assessment evaluation
without qualifying the tests pursuant to Dauber-t or Kumho.
The decision of the Court of Appeals is affirmed in part, reversed in part and
remanded for a new evldentiary hearing. The Act is constitutional as applied to Hall.
III. Commonwealth v. Sims, 2000~SC-1076
& 961-DG
This appeal and cross-appeal are from an opinion of the Court of Appeals
reversing a ruling of the Jefferson Circuit Court which determined that Sims was a high
risk sex offender pursuant to the Sex Offender Registration Act, KRS 17.500 et seq.
(1998 Kentucky Acts).
In 1978, Sims pled guilty to one count of first-degree sodomy and was
sentenced to 20 years in prison. Prior to his release, a risk determination hearing was
held and the circuit judge determined that Sims was a high risk offender. The Court of
Appeals reversed the ruling because it believed the statute violated the separation of
powers doctrine and was an unconstitutional reopening of a final judgment. This Court
granted discretionary review.
The Commonwealth argues that the statutory system does not constitute a
reopening of the original judgment and conviction. It contends that the legislature has
the express constitutional authority to regulate the jurisdiction and venue of circuit
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courts. The Commonwealth claims that the legislature has done this in the past in
declaratory judgment statutes, habeas corpus statutes and shock probation statutes. It
claims that the system actually establishes jurisdiction for a separate civil proceeding.
The Commonwealth also maintains that the courts have constitutional authority to
review sex offender classifications and conduct hearings and to do so does not
constitute an impermissible separation of powers violation.
Sims responds that the Court of Appeals properly declared the 1998 statute
invalid because the legislature improperly ordered circuit judges to reopen closed
criminal cases in order to conduct assessment hearings. He argues that the legislature
did not intend that the 1998 version of KRS 17.500 et seq. apply to him. He complains
that the application of the 1998 amendments of the Registration and Notification
Statutes violate his constitutional protection against retroactive punishment. He
asserts that the new punishment of Internet publicity under the 2000 amendments to
the Sex Offender Registration Act cannot be imposed on him and that this Court must
order a removal of all information about him from the state police Web site.
A. Separation of Powers/Statute Not a Reopening
We have previously stated in this opinion that there is no violation of the
separation of powers principles. We believe some additional comments are necessary
to respond to the particular arguments raised by Sims.
The Registration and Notification Statutes are occasioned by the criminal
conviction and cannot occur without it, but it does not affect the criminal proceeding. It
could be compared to a PFO proceeding during a criminal trial which cannot occur
without the presence of a previous criminal conviction. A risk assessment cannot arise
without a prior sex offense conviction. Similar to the PFO proceeding, the offender
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does not receive any additional punishment for the original criminal conviction. The
previous conviction is certainly not reopened for further proceedings.
Commonwealth v. Griffin, Ky., 942 S.W.2d 289 (1997) provides that a court
may retain jurisdiction over a particular case by operation of rule or statute and also by
operation of its own judgment provided it is not precluded by any statute from doing so.
Here, jurisdiction over the convicted sex offender regarding classification and
registration was imposed by the statutes. The circuit court did not exceed its
jurisdiction in classifying Sims. See Collie v. State, 710 So.2d 1000 (Fla. Dist.
Ct.App. 1998).
The argument that because this action carries the same number from the
indictment of 22 years ago, it must signify that the case has been reopened is totally
without merit. The administrative decision by the clerical division of the court system to
place the number from the original conviction on the subsequent paper work does not
amount to a reopening of the original judgment of conviction. The number a court
system uses to track its cases has nothing to do with the substance of the case or the
underlying statute. We find the Court of Appeals to be in error when it determined that
the statutes required a reopening of the criminal judgment.
B. Separation of Powers--Review Authority
Sims claims that the assignment of the duty to conduct a risk assessment
hearing to the circuit court is a violation of the separation of powers doctrine because it
places a burden on the circuit court. We cannot agree.
A hearing to review the classification of risk as recommended by the certified
provider pursuant to the statute is not a delegation of a purely legislative or executive
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responsibility to the court system. It does not unreasonably interfere with the function
of the judiciary and is not a violation of the separation of powers principles.
Commonwealth v. Raines, Ky., 847 S.W.2d 724 (1993), overruled on other
grounds in Commonwealth v. Howard, Ky., 969 S.W.2d 700 (1998) recognizes that a
statute may confer on the courts the duty to administer certain types of laws but not to
legislate. Raines. supra, a case involving the revocation of drivers licenses found that
nothing in the constitution prevented the administration of traffic laws including the
suspension of licenses from being lawfully delegated to the courts and that such a
statute did not impose a purely executive function on the judiciary. The same is true in
this situation, thus the statute here does not constitute a separation of powers violation.
Cf. Mullins v. Commonwealth, Ky., 956 S.W.2d 210 (1997).
The argument by Sims that the hearing should be conducted by the parole
board is unconvincing. It is within the power of the legislature to determine what unit of
government is best suited to perform certain civil responsibilities. Here, the legislature
determined that the sentencing courts were most familiar with the facts surrounding the
offender, and therefore, would be most capable of handling the risk determination
efficiently. The assignment of this responsibility to the circuit courts is a legitimate
policy decision by the legislature and does not violate the separation of powers
doctrrne.
The circuit courts have the constitutional authority to review sex offender
classifications and to conduct hearings in connection therewith. Such action does not
constitute an impermissible separation of powers violation.
The Arizona Court of Appeals, where the separation of powers doctrine
approach is similar to that of Kentucky, has found that its sexually violent persons act
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did not violate separation of powers by providing that rules of civil procedure and
evidence would apply in the proceedings. The Arizona Court concluded that: “The
critical question is whether the exercise of power usurps the power of another branch
of government.” Such usurpation was not found in Arizona and there is no usurpation
here. See Martin v. Reinstein, 987 P.2d 779 (Ariz. Ct.App. 1999).
In the cross-appeal by Sims, in addition to the challenge to the constitutionality
of the statutes, he raises other lengthy arguments in regard to constitutional Sections
1, 26, 27, 28, 47 and 51. None of these arguments are convincing, but we will
comment on some of them.
We have previously held in this Opinion that the statutes in question were not
intended and are not any form of punishment. Section 51 is not violated. The
legislation does not relate to more than one subject and is not misleading. Registration
and notification are not punishments for a previous sex crime. They are remedial
measures, not punitive, and do not constitute punishment. See Kansas v. Hendricks,
521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997).
The arguments by Sims regarding his right to privacy have no foundation. The
limitation on the right to privacy was expressed by a delegate to the 1890 constitutional
convention when he stated, “My rights end where another gentleman’s rights
commence.” Const. Debates p. 597. The laws enacted here are for the direct
protection of society. See Commonwealth v. Campbell, 133 Ky. 50, 117 S.W. 383
(1909). The contention that the statutes violate section 47 of the constitution is
unpersuasive. Chapter 401 of the 2000 version of the acts does not violate the
constitution because it is not a taxation or revenue bill. The purpose of the legislation
is to promote public safety. The fact that the latest version of the statute was
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necessary to prevent Kentucky from losing federal funding does not change the statute
into one of a revenue raising type. Yeoman v. Health Policy Board, Ky., 983 S.W.2d
459 (1998) indicates that if there is a revenue aspect to a bill that is incidental to its
primary purpose, the statute survives scrutiny under Section 47. The funds received
by Kentucky from the federal government are not revenue raised by means of local or
state taxation.
The application of the statutes in question will not result in ex post facto, double
jeopardy or bill of attainder violations. The Kentucky legislation establishes a remedial
and regulatory system regarding registration and notification of convicted sex offenders
similar to all the other states in the union and the federal government. From any
aspect, the intended purpose of this legislation is to promote public safety. The title of
the bill is “An Act concerning criminal justice matters” and in practice, the statutes
relate to criminal justice matters because they apply to individuals previously convicted
of sexual offenses. It should be noted that the law is not styled “An Act Relating to
Crimes and Punishments.”
C. Double Jeopardy
We reject the claims that the statutes are unconstitutional because they violate
the principles of double jeopardy. A careful review of the statutes indicates that the
registration laws do not expose any individual to double jeopardy when applied to a
criminal who has already been convicted of committing a sex crime. The statutes have
a remedial purpose and are not excessive when compared to that purpose. The
statutes protect the public and aid law enforcement in monitoring sex offenders. The
fact that the statutes are intended to deter recidivism does not warrant declaring them
unconstitutional as a violation of double jeopardy principles. The dissemination of
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.
information by whatever means has not been considered a form of punishment. Cf.
Cutshall v. Sundauist, 193 F.3d 466 (6th Cir. 1999). The restrictions imposed on sex
offenders are not comparable in any way to any form of incarceration. The statutes
serve a regulatory purpose.
None of the elements of the registration act run afoul of the double jeopardy
analysis provided by this Court in Houriaan v. Commonwealth, Ky., 962 S.W.2d 860
(1998) or the United States Supreme Court in Hudson v. United States, 522 U.S. 93,
118 S.Ct. 488, 139 L.Ed.2d 450 (1997).
They do not involve a second prosecution for the same offense after acquittal.
They are not a second prosecution for the same offense after conviction, and multiple
punishments for the same offense are not involved.
It has been held that Megan’s Law, which is a common name for the
Registration and Notification Act, does not adjudicate guilt nor does it inflict punishment
and therefore cannot constitute a bill of attainder. Roe v. Far-well, 999 F.Supp.
174 (D.
Mass. 1998); Patterson v. State, 985 P.2d 1007 (Alaska Ct.App. 1999);
Commonwealth v. Mountain, supra, discussing Commonwealth v. Gaffney, 702 A.2d
565 (Pa. Super. Ct. 1997); Doe. We agree.
The opinion of the Court of Appeals is reversed and the ruling of the Jefferson
Circuit Court is reinstated.
The 1998 and 2000 versions of the Sex Offender Registration and Notification
Statutes are constitutional as applied to each appellant herein.
All concur.
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COUNSEL FOR APPELLANT WILLIAM KEITH HYATT, JR:
Carol R. Camp
Assistant Public Advocate
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLANT DENNIS GILBERT HALL:
Elizabeth Shaw
P.O. box 644
Richmond, KY 40476
COUNSEL FOR APPELLEE:
Albert B. Chandler III:
Attorney General
Anitria M. Franklin
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
ATTORNEY FOR APPELLANT/CROSS-APPELLEE:
Albert B. Chandler III
Attorney General
Tami Allen Stetler
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601
ATTORNEYS FOR APPELLEE/CROSS-APPELLANT NATHANIEL SIMS:
Frank W. Heft, Jr.
J. David Niehaus
Deputy Appellate Defender
Office of the Jefferson District Public Defender
200 Advocacy Plaza
719 West Jefferson Street
Louisville, KY 40202
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