July 14, 2003

ATTORNEY GENERAL OPINION NO. 2003- 20

Larry Welch, Director

Kansas Bureau of Investigation

1620 S.W. Tyler

Topeka, Kansas 66612-1837

Re:	Crimes and Punishments; Kansas Criminal Code; Classification of Crimes and Sentencing--Sentencing--Expungement of Certain Convictions, Arrest Records and Diversion Agreements

Criminal Procedure; Kansas Code of Criminal Procedure--Offender Registration--Relief from Registration Requirement; Offenders from Other States

Synopsis:	K.S.A. 2002 Supp. 22-4908 removes the power of any court to relieve a covered offender of the duty to register as required by K.S.A. 2002 Supp. 22-
4201 et seq. However, registration is not required if, prior to July 1, 2001, the person qualified for and went through the processes authorized by K.S.A. 22-4908 prior to its 2001 amendment. If persons receiving an expungement prior to July 1, 2001 have not complied with the process set forth in the prior version of K.S.A. 22-4908, registration duties are not negated by an expungement order from this or any other state's courts. Cited herein: K.S.A. 2002 Supp. 21-3110a; 21-4619; K.S.A. 22-4901; 22-4902; 22-4904; 22-4905; 22-4906; 22-4908; 22-4909; 38-1610.

*	*	*

Dear Mr. Welch:

As director for the Kansas Bureau of Investigation (KBI), you request our opinion on whether an expungement under K.S.A. 2002 Supp. 21-4619 relieves a convicted person of the obligation to register under the Kansas Offender Registration Act (ORA), K.S.A. 22-
4901 et seq. You note that the Kansas Legislature has acted to insure that no future expungements involve sex offenses.1 However, KBI continues to receive and process orders granting expungement prior to these statutory amendments, as well as expungement orders from other states. Thus, it is these situations you ask us to address.

Offender registration laws require offenders to supply their addresses and other identifying information to a state agency or to law enforcement, usually with the intent of increasing community protection. "In light of the legislative history, it is clear that the legislature passed the KSORA in order to protect Kansas residents from sexual offenders who pose a high risk of re-offense. It is clear from the KSORA that the legislature specifically required all people convicted of Chapter 21, Article 35 crimes, or crimes of a similar nature, to register as sex offenders."2 Would-be sex offenders have been on notice since April 14, 1994, when KSORA became law, that if they commit certain crimes they will be subject to public disclosure pursuant to K.S.A. 2002 Supp. 22-4909.3 In State v. Wilkinson,4 the Kansas Supreme Court examined the ORA and stated that "the registration requirement imposed no affirmative disability or restraint, and that, while the burden of registering may cause discomfort, the act of registration alone was not punishment."5 Likewise, the Court in State v. Scott6 held that the punitive effect of registration and notification provisions of the ORA were not so disproportionate to defendant's violent, sexually-motivated crime as to constitute cruel and unusual punishment.7

The requirements to register under the ORA are largely set forth at K.S.A. 2002 Supp. 22-
4904 and 22-4905. K.S.A. 2002 Supp. 22-4906 establishes the time lines and requirements applicable to any person required to register. It is clear from these provisions that persons coming into the State must register if the law applies to them.8 This is true even if the offense occurred prior to the 1994 enactment of the KSORA, in which case registration is required but there is no public release of the information.9

Thus, the sole issue becomes whether expungement of the conviction record, pursuant to the laws of this state or any other, negates the registration requirements in K.S.A. 2002 Supp. 22-4901 et seq.

"Expunge" means to "destroy; blot out; obliterate; erase; efface designedly; strike out wholly. The act of physically destroying information - including criminal records - in files, computers, or other depositories."10 K.S.A. 2002 Supp. 21-4619 provides for expungement of certain records. Until 2002, certain sex related crimes could be expunged.11 Expungement limits certain future disclosure of the convictions by a record custodian.12 However, K.S.A. 2002 Supp. 21-4619(f) and (i) still allow an expunged record to be accessed, considered and used in certain circumstances.13 Expungement of a criminal record can be conditional.14 Thus, while an expungement generally means that there is no longer a record of the person being convicted, an expungement does not necessarily result in that record being obliterated for all purposes.

We believe that properly crafted legislation can provide for registration, even when a conviction record has been otherwise expunged, especially given the Court's statements concerning ex post facto principles as they apply to such registration requirements.15 A review of cases concerning offender registration and these challenges leads us to believe that registration requirements can still be imposed upon persons who have had their convictions previously expunged, but that public dissemination of that information would be limited in accordance with the Myers case. Thus, despite expungement orders from other states, Kansas law-makers may require registration under the ORA. The issue then is whether the Kansas Legislature has so required.

K.S.A. 2002 Supp. 22-4908 previously permitted relief from registration after the passage of time and if a specified procedure was followed. This, then, was the only way that anyone could escape registration requirements in Kansas. The 2001 Legislature significantly changed K.S.A. 2002 Supp. 22-4908.16 K.S.A. 2002 Supp. 22-4908 now reads: "No 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." The new amendment went into effect as of July 1, 2001.17 After that date, courts may not grant any order negating the registration otherwise required by the ORA.18 Likewise, the 2002 Legislature clarified K.S.A. 2002 Supp. 21-4619 to make it clear that sex offenders did not qualify for expungement.19 Thus, we believe any court order granting an expungement after July 1, 2001 cannot lawfully relieve offenders of any otherwise required duty to register under the ORA. Likewise, persons who were required to register prior to July 1, 2001 could only have obtained relief from registration by going through the procedure then outlined in the former version of K.S.A. 22-4208.

In summary, K.S.A. 2002 Supp. 22-4908 removes the power of any court to relieve a covered offender of the duty to register as required by K.S.A. 2002 Supp. 22-4201 et seq. However registration is not required if, prior to July 1, 2001, the person qualified for and went through the processes authorized by K.S.A. 22-4908 prior to its 2001 amendment. If persons receiving an expungement prior to July 1, 2001 have not complied with the process set forth in the prior version of K.S.A. 22-4908, registration duties are not negated by an expungement order from this or any other state's courts.

Sincerely,

Phill Kline

Attorney General of Kansas

Theresa Marcel Nuckolls

Assistant Attorney General

PK:JLM:TMN:jm