Friday, February 02, 2018

Due Process violated if no procedure for offender to show he could not pay registration fee

Ryan Eddinger won in State v. Frederick Owens, No. 116,979 (Kan. App. January 12, 2018), obtaining reversal of a Wyandotte County failure to register conviction. The case involved the requirement for sex offenders to pay a $20 registration fee each time they register (four times a year) and making it a crime to fail to pay that fee. Mr. Owens argued that conviction upon failure to pay the fee, when there is no avenue for getting a finding of indigency that would excuse the failure violated the Due Process Clause as it applied to him. The COA agreed that the record showed Mr. Owens' indigency:

Owens 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 argued on appeal that Owens was not actually indigent or that he was able to pay the fee. 

Some evidence was presented at a preliminary hearing on Owens' interactions with the sheriff's office. Owens said he told personnel there that he couldn't afford the fee and that no one told him he could seek an indigency determination from the court. An officer who interacted with Owens, Lisa Williams, testified that she told Owens to "talk to an attorney" about getting a waiver, though she conceded that folks seeking an indigency determination weren't likely to be able to afford an attorney.

So what could Owens have done? It's not clear, even to us, that he had any way to get a court determination of indigency that would have eliminated his criminal responsibility. And that doesn't meet minimal standards for due process. 

The COA clarified that the statute simply did not provide any path to relief for someone in Mr. Owens' shoes:

The problem is that the statute didn't provide any procedure for Owens to seek that court determination. What should Owens have filed? Would the clerk have accepted it and sent it on to a judge for review? Would the judge have considered it a valid proceeding and gone on to make an indigency determination? We can't be at all sure of the answer to any of those questions, and the statute says nothing about them. Even if we assume that there is some implied grant of jurisdiction to the district court to handle some sort of miscellaneous action to make this determination, given the uncertainties and lack of direction, this can't be sufficient process to meet constitutional requirements when a person's liberty is at stake.

In sum, no one gave Owens notice of a procedure he could use to get a court to determine he was unable to pay the $20 before his registration dates. Nor has the Legislature provided any clear guidance about how one might do so. We conclude that Owens' right to procedural due process was violated.

The COA clarified that this decision was particular to Mr. Owens and that other factual scenarios might come out differently. But because the convictions in Mr. Owens' case violated the Due Process Clause, the COA reversed.

[Update: the state did not file a PR and the mandate issued on February 20, 2018.]

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