Attorney General Opinion No

Full title: Robert E. Blecha

Court: Attorney General of Kansas — Opinion

Date published: Jun 26, 2008

2008-16 (Ops.Kan.Atty.Gen. Jun. 26, 2008)

Opinion

June 26, 2008.

Re: Criminal Procedure — Offender Registration — Time Period in which Required to Register; Termination of Registration Requirement; Relief from Registration Requirement for Persons Adjudicated as Juvenile Offenders for Certain Sexually Violent Crimes

Synopsis:

Notwithstanding K.S.A. 22-4908, a district court may relieve a person from the duty to register under the Kansas Offender Registration Act if the duty to register was based upon the person's adjudication as a juvenile offender for an act which if committed by an adult would constitute the commission of a sexually violent crime and such crime was not an off-grid felony or a felony ranked in severity level 1 of the nondrug sentencing grid. Cited herein: K.S.A. 22-4902; 22-4903; 22-4906; 22-4908; K.S.A. 2007 Supp. 59-29a02.

* * *

Stephen N. Six, Attorney General

Robert E. Blecha Director, Kansas Bureau of Investigation 1620 SW Tyler Topeka, Kansas 66612

Dear Mr. Blecha:

As Director of the Kansas Bureau of Investigation, you request our opinion whether a person can be relieved of the requirement that he or she register as a sex offender under the Kansas Offender Registration Act, K.S.A. 22-4901 et seq, (Act), following adjudication and a previously imposed requirement that the person register as a sex offender. The answer is "yes."

The Act requires that individuals¹ convicted or adjudicated for certain crimes register with the sheriff within a prescribed period of time.²

1 K.S.A. 22-4902(a).

2 Sexually violent predators are also required to register. However, this group may include persons who are not convicted but who have been charged with a sexually violent offense and who suffer from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence. K.S.A. 22-4902(f); K.S.A. 2007 Supp. 59-29a02(a).

Under the Act, "sex offender" is defined as " any person who, after the effective date of this act, is convicted of any sexually violent crime³ or is adjudicated as a juvenile offender for an act which if committed by an adult would constitute the commission of a sexually violent crime."⁴

3 K.S.A. 22-4902(c).

4 K.S.A. 22-4902(b). Emphasis added.

K.S.A. 22-4906(h) mandates registration for juvenile offenders adjudicated for a sexually violent crime if the crime is an off-grid felony or a severity level 1 felony on the nondrug sentencing grid. In 2006, the legislature amended this statute to allow for discretionary registration if the crime was not an off-grid felony or a severity level 1 felony on the nondrug sentencing grid:

"(h)(2)(A) A person who is adjudicated as a juvenile offender for an act which if committed by an adult would constitute the commission of a sexually violent crime set forth in subsection (c) of K.S.A. 22-4902, and amendments thereto, and such crime is not an off-grid felony or a felony ranked in severity level 1 of the nondrug grid as provided in K.S.A. 21-4704, and amendments thereto, may, by the court:

"(i) Be required to register . . .;

"(ii) not be required to register if the judge, on the record, finds substantial and compelling reasons therefor⁵ . . . .

5 Emphasis added.

In 2007, the legislature amended K.S.A. 22-4906 to make retroactive the discretionary registration provision:

"(h)(4) The provisions of paragraph (2)(A)(ii) shall apply to adjudications on and after the effective date of this act⁶ and retroactively to adjudications prior to July 1, 2007."

6 July 1, 2007.

However, this retroactivity provision appears to create a conflict with K.S.A. 22-4908, which states: "[n]o person required to register as an offender pursuant to the Kansas offender registration act shall be granted an order relieving the offender of further registration under this act."

A plain reading of K.S.A. 22-4908 might suggest that a court is absolutely precluded from relieving certain juvenile offenders of their duty to register. Thus, the question is: notwithstanding K.S.A. 22-4908, does the retroactive provision allow a court to use the discretion given to it under K.S.A. 22-4906(h)(2)(A)(ii) in cases where the registration requirement has already been imposed. To answer this question we must look to the rules of statutory construction. Generally, a specific statute that relates to particular persons or things controls over a general statute, which concerns persons or things as a group or class.⁷ Further, a more recent statute or amendment trumps an earlier statute.⁸ This is true unless it is clear that the legislature intended otherwise.⁹ K.S.A. 22-4908 was last amended in 2001¹⁰ when the legislature removed the authority of a court to relieve an offender from the duty of continued registration. We note that in 2001, the definition of "sex offender" did not include juvenile offenders.¹¹ The definition defined a sex offender as "any person . . . convicted." The addition referring to juveniles did not occur until 2002.¹² Juveniles are not convicted; their case is adjudicated. Thus, the legislature did not have juvenile offenders in mind when it removed the court's authority to relieve offenders from a previously imposed duty to register in 2001. As K.S.A. 22-4906 was amended later than K.S.A. 22-4908, the former controls. The conclusion that K.S.A. 22-4906 controls is further supported by the general versus specific rule of statutory construction noted above.¹³ K.S.A. 22-4908 makes a general, blanket statement concerning all offenders, stating that no order relieving an offender of the duty to register shall be granted. K.S.A. 22-4906 on the other hand, addresses specific offenders and bases registration requirements on the specific crime committed. For example, K.S.A. 22-4906 addresses the registration requirement as it relates to nonresident workers, nonresident students, and persons who have been declared sexually violent predators.¹⁴ Thus, K.S.A. 22-4906 is more specific, and therefore, the controlling statute. Finally, the fundamental rule of statutory construction in this situation dictates that we consider the legislative intent behind an amendment.¹⁵ Our Supreme Court has explained the process for determining legislative intent this way.

7 State v. McAdam , 277 Kan. 136 (2004).

8 State v. Ricks , 173 Kan. 660 (1952).

9 State v.Yrigolla , 38 Kan. App.2d 1029 (2008).

10 L. 2001, ch. 208, § 15.

11 L. 2001, ch. 208, § 10.

12 L. 2002, ch. 55, § 1.

13 State v. McAdam , 277 Kan. 136, 146 (2004).

14 K.S.A. 22-4906(c)-(h).

15 Aves v. Shah , 258 Kan. 506, 512-13 (1995).

"In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia . When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law."¹⁶

When legislators added the retroactive provision they made it clear that courts now have the opportunity to reconsider the registration requirement that was previously imposed on an individual who was adjudicated as a juvenile offender prior to July 1, 2007, for a sexually violent crime that was not an off-grid felony or a severity level 1 felony on the nondrug grid. ¹⁷ After reviewing the entire Kansas Offender Registration Act as a whole, it is our opinion that K.S.A. 22-4906 gives a court discretion to lift the requirement that a person adjudicated as a juvenile offender register as a sex offender even after the duty to register has been imposed. Our conclusion is supported by the rules of statutory construction which dictate that K.S.A. 22-4906 controls notwithstanding the provisions of K.S.A. 22-4908. Sincerely ,

16 Id. at 513.

17 Minutes , House Judiciary Committee, March 20, 2007.

Stephen N. Six, Attorney General

Rebecca E. Rand Assistant Attorney General

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