1 IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI 2 AT KANSAS CITY 3 Honorable Jon R. Gray, Judge 4 5 JANE DOE, I, et al., ) 6 ) Case No. 7 Plaintiff, ) 03CV219085 8 vs. ) 9 THOMAS PHILLIPS, et al, ) 10 ) Division 18 11 Defendants. ) 12____________________________________________________ 13 TRANSCRIPT OF PROCEEDINGS 14 November 24, 2003 15____________________________________________________ 16 17 18 19 20 21 22 23 24 25 LaNell R. Larson, C.C.R. No. 0459 1 Registered Professional Reporter 1 APPEARANCES 2 FOR THE PLAINTIFF: 3 Arthur Benson, Esq. 4 4006 Central 5 P.O. Box 119007 6 Kansas City, MO 64171-9007 7 8 FOR DEFENDANT THOMAS PHILLIPS 9 AND DEFENDANT MICHAEL SANDERS 10 Kathleen Kedigh 11 Office of the County Counselor 12 415 E. 12th Street 13 Kansas City, MO 64106 14 15 FOR DEFENDANT STOTTLEMYRE: 16 Michael Pritchett 17 Office of the Attorney General 18 P.O. Box 899 19 Jefferson City, MO 65102 20 21 22 23 24 25 LaNell R. Larson, C.C.R. No. 0459 2 Registered Professional Reporter 1 INDEX 2 NOVEMBER 24, 2003 3 Ms. S (Sworn) ........................... 12 4 Ms. S (Direct) .......................... 13 5 Ms. S (Cross) ........................... 21 6 Ms. S (Cross) ........................... 22 7 Ms. S (Excused) ......................... 23 8 Mr. S (Direct) .......................... 23 9 Mr. S (Cross) ........................... 31 10 Mr. S (Cross) ........................... 32 11 Mr. S (Excused) ......................... 34 12 Mr. B (Sworn) ........................... 34 13 Mr. B (Direct) .......................... 34 14 Mr. B (Cross) ........................... 41 15 Mr. B (Excused) ......................... 41 16 Reporter's Certificate ..................... 64 17 Word Index ................................. 65 18 19 20 21 22 23 24 25 LaNell R. Larson, C.C.R. No. 0459 3 Registered Professional Reporter 1 INDEX OF EXHIBITS 2 3 No. 1 Blank Form of Fields of Information 9 4 Collected by Highway Patrol 5 No. 2 Copy of Form Registrants Fill Out 9 6 No. 3 Form to notify Sheriff of Change of 9 7 Address 8 No. 4 Copy of Deposition of David Oldfield. 9 9 No. 5 Printout of Department of Corrections 9 10 SORA Data Base (late August or early 11 September of 2002) 12 No. 6 Exhibit 6 to Oldfield Deposition 9 13 (correspondence) 14 No. 7 Exhibit 7 to Oldfield Deposition 9 15 (correspondence) 16 No.8 Exhibit 8 to Oldfield Deposition 9 17 (Table of Data) 18 No. 9 Discovery Deposition taken of Dr. Roy 9 19 Lacoursiere 20 No. 10 CV of Dr. Roy Lacoursiere 9 21 No. 11 Evidentiary Deposition of Dr. Roy 9 22 Lacoursiere 23 No. 12 Affidavit of Member of Purported 9 24 Class 25 No. 13 Partial Transcript of Proceedings for 9 LaNell R. Larson, C.C.R. No. 0459 4 Registered Professional Reporter 1 Mr. B 2 No. 14 Copy of Order of Discharge From 9 3 Probation for Mr. B 4 No. 15 Copy of Judgment of Ms. S 9 5 No. 16 Judgment of Guilty Plea of Mr. S 9 6 No. 21 Supplement to Suggestions in 43 7 Opposition to Preliminary Injunction 8 Motion 9 No. 22 House Report 103-392 44 10 No. 23 House Report 105-256 44 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 LaNell R. Larson, C.C.R. No. 0459 5 Registered Professional Reporter 1 NOVEMBER 24, 2003 2 (In session at 10:48 p.m.) 3 THE COURT: The case before the 4 Court is No. 03CV219085. There's a Jane Doe and 5 John Does -- Jane Doe I and II, John Does 6 I through VI, who are the plaintiffs versus John 7 Phillips in his capacity of Jackson County 8 Sheriff; Michael Sanders Prosecuting Attorney 9 for Jackson County and Colonel Roger 10 Stottlemyre, Superintendent of the Missouri 11 Highway Patrol. The petition is for declaratory 12 relief challenging the constitutionality of the 13 Sex Offender Registration Act, § 589.400 to 14 589.425 of the Revised Statutes of Missouri. 15 Plaintiff seeks varying forms of relief. 16 I note that the defendants have answered. 17 Plaintiffs have filed a motion for class 18 certification. There's a motion for preliminary 19 injunction, and the cause was set down for 20 hearing at this date and time. 21 Any preliminary items we need to take up? 22 MR. BENSON: Yes, Your Honor. 23 First, I have an exhibit list. To whom should I 24 give that? 25 THE COURT: Thank you. LaNell R. Larson, C.C.R. No. 0459 6 Registered Professional Reporter 1 MR. BENSON: I have the wrong 2 case number on it. 3 THE COURT: I'll fix it. 4 MR. BENSON: The right caption, 5 wrong case number. 6 THE COURT: I'll fix it. 7 MR. BENSON: And there are two 8 stipulations which also have the wrong case 9 number. At least I'm consistent. 10 THE COURT: All right. I see -- 11 one stipulation I see is between the plaintiff 12 and what I'll call the county defendants, 13 Defendants Phillips and Sanders. Those parties 14 have agreed that those defendants assert that 15 their interest in Missouri's Sex Offender 16 Registration Act are to enforce the laws of the 17 State of Missouri. All right. That fact will 18 therefore be stipulated as between those 19 parties. 20 The second one is between the plaintiff and 21 the Defendant Stottlemyre. Those parties are 22 stipulating that the General Assembly does not 23 maintain a record of legislative history that 24 provides any direct evidence of the intent or 25 purpose of the act in question. There are LaNell R. Larson, C.C.R. No. 0459 7 Registered Professional Reporter 1 further stipulations that there are 9,212 2 registrations of persons in the Highway Patrol's 3 Sex Offender Registration data base and that the 4 data base does not state that the registrants 5 are registered as a result of an offense that 6 was adjudicated by suspended imposition of 7 sentence; further, that the Defendant 8 Stottlemyre's interests in the Sex Offender 9 Registration Act area are to provide information 10 to law enforcement officers to assist them in 11 investigating future crimes and to provide 12 information to members of the public so they may 13 take steps to protect themselves and their 14 children. The superintendent also reserves the 15 right to assert other reasons justifying his 16 interest in the Sex Offender Registration Act of 17 which reasons he may not be currently aware. 18 All right. Those facts will be conclusive 19 and stipulated and should be brought forward in 20 any proposed findings and conclusions that the 21 parties submit. 22 Anything further? 23 MR. BENSON: At this time, Your 24 Honor, I have a number of exhibits I'd like to 25 offer into evidence. I believe they're being LaNell R. Larson, C.C.R. No. 0459 8 Registered Professional Reporter 1 offered without objection. 2 THE COURT: All right. There are 3 15 exhibits? Is that -- 16 exhibits -- 4 MR. BENSON: 16. 5 THE COURT: -- listed on the 6 plaintiff's exhibit list. Do both counsel have 7 a copy of that list? 8 MS. KEDIGH: Yes, Your Honor. 9 MR. PRITCHETT: Yes, Judge. 10 THE COURT: All right. Is there 11 any objection to Exhibits 1 through 16? 12 MS. KEDIGH: No, there is not. 13 MR. PRITCHETT: There is not from 14 the State either, Judge. I will have comments 15 about the weight of some of the statistical 16 data. 17 THE COURT: Understood. All 18 right. Then without objection, Exhibits 1 19 through 16 are all received in evidence. 20 (The Court received into 21 evidence Exhibits 1 through 16 22 inclusive.) 23 MR. BENSON: Your Honor, may I 24 provide them to the Court one at a time now with 25 just a very brief description of them? LaNell R. Larson, C.C.R. No. 0459 9 Registered Professional Reporter 1 THE COURT: Yes, sir. 2 MR. BENSON: All right. Exhibit 3 1 is a blank form consisting of the fields of 4 information that are collected by the State 5 Highway Patrol upon the registration of a person 6 required to register under the act. 7 Exhibit 2 is a copy of a form that 8 registrants fill out when they appear at their 9 county sheriff's office to register. 10 Exhibit 3 is a similar form used to notify 11 a sheriff of a change of address. 12 Exhibit 4 is a copy of the deposition of 13 David Oldfield. It was taken in another case. 14 The parties have agreed as though taken in this 15 case. He is one of the -- when the deposition 16 was taken, he was the director of planning, 17 research and evaluation for the Missouri 18 Department of Corrections and his responsibility 19 included data collected pursuant to the act. 20 Exhibit 5 is a printout of data that was in 21 the Highway Patrol's SORA Data Base in late 22 August or early September of 2002. 23 MR. PRITCHETT: Did you say 24 Highway Patrol? 25 MR. BENSON: Yes. LaNell R. Larson, C.C.R. No. 0459 10 Registered Professional Reporter 1 MR. PRITCHETT: It was the 2 Department of Corrections 3 MR. BENSON: Oh, excuse me. It 4 was the Department of Corrections data base. 5 The Department of Corrections maintains the data 6 base. 7 Exhibit 6 is also Exhibit 6 to the Oldfield 8 deposition. It's correspondence. 9 Exhibit 7 is also Exhibit 7 to the 10 deposition. It too is correspondence. 11 Exhibit 8 is a table of data that was 12 Exhibit 8 to the Oldfield deposition and is 13 referred to in that deposition. 14 Exhibit 9 is a copy of the discovery 15 deposition taken in another case of Dr. Roy 16 Lacoursiere, as an expert witness in a related 17 case, and the parties agree it can be used in 18 this case as though taken in this case. 19 Exhibit 10 is Dr. Lacoursiere's curriculum 20 vitae. Did I give you a -- does it have a 21 sticker number on it? 22 THE COURT: No, it doesn't. 23 MR. BENSON: Exhibit 11 is the 24 evidentiary deposition of Dr. Lacoursiere taken 25 in another -- in the other case but to which the LaNell R. Larson, C.C.R. No. 0459 11 Registered Professional Reporter 1 parties have agreed may be used in this case. 2 Exhibit 12 is an affidavit of a 3 purported -- a member of the purported class. 4 THE COURT: Are you able to 5 identify which Jane Doe or John Doe this is? 6 MR. BENSON: He's not a 7 plaintiff. This is a member of the purported 8 class. 9 THE COURT: Oh, I see. 10 MR. BENSON: Exhibits 13 and 11 14 -- Exhibit 13 is a partial transcript of 12 proceedings for that same -- for the affiant in 13 Exhibit 12, and Exhibit 14 is a copy of the 14 order of discharge from probation for the same 15 affiant in Exhibit 12. 16 I have two other exhibits I'll use with 17 witnesses. 18 I misspoke with No. 13. No. 13 goes with 19 one of the witnesses I'll soon be calling. All 20 right. 21 At this time I'd like to call as our first 22 witness, Ms. S. 23 (Witness sworn by the 24 Court.) 25 THE COURT: Be seated, please. LaNell R. Larson, C.C.R. No. 0459 12 Registered Professional Reporter 1 MS. S, 2 Having been duly sworn by the Court, testified 3 as follows: 4 DIRECT EXAMINATION 5 BY MR. BENSON: 6 Q. Now Ms. S, we've agreed to -- with the Court and 7 counsel to refer to you by your last initial. 8 What county do you reside in? 9 A. Jackson, eastern Jackson. 10 Q. And what part of the county do you reside in? 11 A. Blue Springs -- well, Oak Grove. 12 Q. Are you required to register under Missouri's 13 Sex Offenders Registration Act? 14 A. Yes, sir, I am. 15 Q. In what state was a criminal action brought 16 against you that resulted -- 17 A. Texas. 18 Q. -- that resulted in your requirement to 19 register? 20 A. Texas. 21 Q. And when was it that you entered into a plea in 22 Texas? 23 A. In 1998. 24 Q. Here's Exhibit 15 which is already in evidence. 25 I'll provide you with a copy of it. Is Exhibit LaNell R. Larson, C.C.R. No. 0459 13 Registered Professional Reporter 1 15 a copy of the judgment, suspension of 2 sentence, placing you on community supervision 3 in your case? 4 A. Yes, sir. 5 Q. Okay. At the time of the offense of which the 6 charge says "felony of a third degree, to-wit 7 injury to a child," who is the child that is 8 referred to there? 9 A. My oldest daughter. 10 Q. What is the current age of your oldest daughter? 11 A. She turned ten last month. 12 Q. And how old was she at the time of the alleged 13 offense? 14 A. Four. 15 Q. Four? 16 A. Yes, sir. 17 Q. Where were you living at that time? 18 A. In Pleasanton, Texas. 19 Q. With whom were you living? 20 A. My ex-husband and my one-year-old son and my 21 newborn daughter. 22 Q. The four-year-old daughter who was the subject 23 of the charge was living with you and your 24 ex-husband? 25 A. No, sir. My oldest daughter when I left her LaNell R. Larson, C.C.R. No. 0459 14 Registered Professional Reporter 1 father, he promised me that he would never try 2 to keep me away from her and that he would never 3 talk bad about me to her. I had nowhere to 4 live, so I left her in the home and I managed to 5 survive. 6 Q. So at the time of this offense when you were 7 living in Texas, you were living with a man who 8 was then your husband? 9 A. Yes, sir. 10 Q. And was he the father of the four-year-old girl? 11 A. No, sir. 12 Q. He was her stepfather? 13 A. Step. 14 Q. And he had not adopted her? 15 A. No, sir. 16 Q. And you were living in the home with him and the 17 four-year-old girl? 18 A. She did not live with us. She lived with her 19 father. He's always had custody of her. 20 Q. Did she come to visit with you? 21 A. Yes, sir. 22 Q. And then the man you were living with then, you 23 were married to him and you and he had a 24 one-year-old together? 25 A. Yes, sir. LaNell R. Larson, C.C.R. No. 0459 15 Registered Professional Reporter 1 Q. And that one-year-old was living with you? 2 A. Yes, sir. 3 Q. At some point in time the four-year-old girl 4 visited you and your then husband? 5 A. Yes, sir. 6 Q. And did something happen that resulted in a 7 criminal charge being brought? 8 A. Yes, sir. 9 Q. What was that? 10 A. It was -- it was terrible. But we had been 11 having problems with her and -- not just my 12 ex-husband and I, her father and his wife at the 13 time were having problems as well with her being 14 very stubborn. "I'm not gonna do it your way. 15 I'm gonna do it mine." 16 And I -- I tried everything. I talked -- 17 I, you know -- candy and -- as rewards -- and I, 18 you know, had swatted her, you know, and 19 grounded -- you know, put her in time out. She 20 was four years old, so we weren't supposed, you 21 know, to put her in more than -- you know, 22 longer than three minutes, and we followed all 23 of that. 24 She adored Michael, my ex-husband. She 25 really adored him. And I thought that if he LaNell R. Larson, C.C.R. No. 0459 16 Registered Professional Reporter 1 were to step in and help us in letting her 2 understand that she needed to comply, you know, 3 she had to work with us on that, that she 4 might -- it might affect her in a way that she 5 would actually change or, you know, quit. 6 And I told him that -- for him to spank her 7 and he -- he bruised her. 8 Q. What did he spank her with? 9 A. A belt. 10 Q. And left a bruise? 11 A. Yeah, several bruises. There was three. 12 Q. Three bruises. And those three bruises were 13 reported to the authorities? 14 A. Yes, sir. 15 Q. All right. And charges were brought? 16 A. Yes, sir. 17 Q. Who was charged? 18 A. Well, he was and I was. 19 Q. All right. And you were charged with permitting 20 injury to your child? 21 A. I was -- yes, and that -- well, the charge says 22 injury to a child and that's what they say. You 23 know, the paper work reads like I did it. 24 Q. But did you -- 25 A. No. LaNell R. Larson, C.C.R. No. 0459 17 Registered Professional Reporter 1 Q. -- physically injure your child? 2 A. No. 3 Q. All right. And you were sentenced to suspension 4 of sentence and probation? 5 A. Yes, sir. 6 Q. And are you still on probation? 7 A. Yes, sir. 8 Q. And when did you move to Jackson County? 9 A. To Jackson County about a year ago. 10 Q. Was your probation moved up here? 11 A. My probation was transferred from Lafayette 12 County to Jackson County. I was -- I was 13 released to Missouri from the very get-go of my 14 probation. 15 Q. From the beginning of your probation you were 16 assigned to Missouri for probation? 17 A. Yes. I told the courts that I couldn't live in 18 Texas. 19 Q. And at the present time are you married? 20 A. Yes, sir, I am. 21 Q. To the same man you were married to back in '98? 22 A. No. 23 Q. All right. 24 A. He's -- I've got a good husband. 25 Q. Do you have children living with you? LaNell R. Larson, C.C.R. No. 0459 18 Registered Professional Reporter 1 A. Yes, my two children. 2 Q. All right. Including the girl that was then 3 four? 4 A. No. No. She's still with her father. 5 Q. She's still with her father. And you have two 6 other children living with you now? 7 A. Yes, sir. 8 Q. What are their ages? 9 A. Five and six. 10 Q. Have any other charges been brought against you? 11 A. No, sir. 12 Q. Have you ever harmed anyone in your life 13 yourself? 14 A. No, sir. 15 Q. Other than this one incident in '98, have you 16 ever permitted anyone to harm somebody that you 17 had a responsibility for? 18 A. No, sir. 19 Q. Have you attempted to obtain employment here in 20 the Kansas City area? 21 A. In -- yes. Well, you mean -- 22 Q. Have you applied for jobs in this area? 23 A. Yes. 24 Q. All right. And has the fact of your 25 registration interfered with your ability to LaNell R. Larson, C.C.R. No. 0459 19 Registered Professional Reporter 1 obtain any employment here? 2 A. Well, it was implied. 3 Q. Okay. 4 A. I -- 5 Q. All right. Let -- where did you apply for work? 6 A. One -- the place that was actually stated was 7 Home Depo. I -- on the -- on the application it 8 asks and I answered truthfully. And I asked 9 them afterward if that would affect my chance 10 for employment, and it was told to me 11 unfortunately yes, it would. 12 Q. Did you get that job? 13 A. No, sir, I did not. 14 Q. When you say it was asked on the application 15 form, did it say, "Are you required to register 16 under. . . ." 17 A. It was asked if I was required to register under 18 any law for any reason. 19 Q. And you answered yes? 20 A. Yes, sir, I did. 21 Q. Have you since been able to find other 22 employment? 23 A. I've got a job. I'm just looking for a job 24 closer to home. 25 Q. Do you consider yourself to be a threat to LaNell R. Larson, C.C.R. No. 0459 20 Registered Professional Reporter 1 anyone? 2 A. No, sir. 3 Q. Has anybody ever accused you of being a threat 4 to anyone? 5 A. No, sir. 6 Q. Has anyone in authority, any law enforcement or 7 prosecutorial agent, ever accused you of being a 8 threat to -- 9 A. No, sir. 10 Q. -- danger to anyone? 11 A. (Shook head.) 12 MR. BENSON: No further 13 questions. 14 THE COURT: All right. Any 15 questions, counsel? 16 MS. KEDIGH: Yes. Just a couple. 17 CROSS-EXAMINATION 18 BY MS. KEDIGH: 19 Q. I assume, then, that injury to a child in Texas 20 is considered a sex offense? 21 A. No, ma'am. It is not. 22 Q. Okay. 23 A. When I contacted Texas and asked them, they said 24 no, that there was under no -- under no part of 25 their understanding that I should be required to LaNell R. Larson, C.C.R. No. 0459 21 Registered Professional Reporter 1 register as a sex offender because it is not and 2 they didn't understand. I mean, I spoke with 3 several different people down there, and they 4 didn't understand Missouri law. They said, 5 "We're not Missouri. I don't know. I can't 6 tell you. But under Texas law, no." 7 MS. KEDIGH: All right. Thank 8 you. That's all I have. 9 THE COURT: Mr. Pritchett? 10 MR. PRITCHETT: Good morning. 11 CROSS-EXAMINATION 12 BY MR. PRITCHETT: 13 Q. Are you currently registered with the Sheriff's 14 Office -- 15 A. Yes, sir, I am. 16 Q. -- for the offense? 17 A. Yes, sir, I am. 18 MR. PRITCHETT: That's all I 19 have, Judge. Thank you. 20 THE COURT: Anything else, 21 Mr. Benson? 22 MR. BENSON: No. 23 THE COURT: Thank you. You may 24 step down. 25 (Witness excused by the LaNell R. Larson, C.C.R. No. 0459 22 Registered Professional Reporter 1 Court.) 2 MR. BENSON: I would call Mr. S. 3 THE COURT: Step in the witness 4 stand, please. 5 MR. S, 6 Having been duly sworn by the Court, testified 7 as follows: 8 DIRECT EXAMINATION 9 BY MR. BENSON: 10 Q. Mr. S, we've also agreed to use your initial. 11 Would you please tell us what county you 12 reside in. 13 A. Jackson County. 14 Q. What part of the county? 15 A. Eastern Independence. 16 Q. Are you currently registered under Missouri's 17 Sex Offender Registration Act? 18 A. Yes. 19 Q. How old are you? What's your date of birth? 20 A. 11/12/54. 21 Q. Are you married? 22 A. Yes. 23 Q. Do you have children? 24 A. Yes. 25 Q. How many children? LaNell R. Larson, C.C.R. No. 0459 23 Registered Professional Reporter 1 A. Four including my stepdaughter. 2 Q. And what are their ages? 3 A. 29, 28, 22 and 18. 4 Q. And is your requirement that you register a 5 result of an allegation concerning one of those 6 four children who you just listed? 7 A. Yes. 8 Q. Which one? 9 A. My stepdaughter, 18. 10 Q. Where does she live at the present time? 11 A. At our home. 12 Q. How -- and in what year did this offense take 13 place? 14 A. '93 I think is what they said the date of the 15 offense was, but '94 is when it all come about. 16 Q. Show you what we've marked as Exhibit 16. Is 17 this a copy of your judgment and guilty plea? 18 A. Yes, sir. 19 Q. In the upper right-hand corner of the first page 20 it says, "Offense Date: November and 21 December 1993." Do you see that? 22 A. Yes. 23 Q. How old would your stepdaughter have been at 24 that time? 25 A. She would have been eight. LaNell R. Larson, C.C.R. No. 0459 24 Registered Professional Reporter 1 Q. Has she lived with you and your wife since then? 2 A. Since this happened? 3 Q. Yes. 4 A. Yes. 5 Q. What was the charge? 6 A. They said sodomy, inappropriate touching. 7 Q. Did you enter a plea originally in the case? 8 A. Not guilty at first. 9 Q. Okay. Who was your lawyer? 10 A. Sam Buccero. 11 Q. And what was the nature of the allegation as to 12 what the touching was? 13 A. Well, that I had touched her buttocks, and they 14 said that I had touched her genitals or 15 whatever; no entry, just happened to touch it in 16 the process of touching her butt. 17 Q. And how had this become a complaint brought to 18 the attention of the authorities? 19 A. Well, first it was -- you mean how the actual 20 complaint come? 21 Q. Yes. 22 A. She was at -- our baby-sitter lived down the 23 street where Sarah stayed, and she was doing 24 hair dressing on the side or whatever. And at 25 the time they had come to investigate her about, LaNell R. Larson, C.C.R. No. 0459 25 Registered Professional Reporter 1 you know, doing hair dressing at the time that 2 she was in childcare. So she thought it was my 3 wife that made that implication and the next 4 thing I know this come up. 5 Q. And in the course of deciding whether or not -- 6 did you at some point change your plea from not 7 guilty? 8 A. Sure. 9 Q. And what did you change the plea to? 10 A. Guilty with a suspended imposition of sentence. 11 Q. And your lawyer at the time, Mr. Buccero, 12 what -- did he tell you the advantages or 13 disadvantages of any course of action? 14 A. Well, yes, through him, the prosecutor and the 15 judge at the time. 16 Q. And -- 17 A. Judge Moran. 18 Q. At the time was it your intention to plead not 19 guilty and stand trial? 20 A. Sure. 21 Q. And were you quoted a fee for doing that? 22 A. Yes. 23 Q. How much? 24 A. He said it would probably cost me approximately 25 35,000, plus he'd have to basically hammer on my LaNell R. Larson, C.C.R. No. 0459 26 Registered Professional Reporter 1 daughter a little bit in court. And at that 2 time I figured it wasn't worth it. 3 Q. Did you consider yourself guilty of having in 4 any sexual way touched your daughter, your 5 stepdaughter? 6 A. No. 7 Q. Did you decide to plead not guilty -- excuse me. 8 Did you decide to plead guilty and receive a 9 suspended imposition of sentence? 10 A. Yes. 11 Q. Was the legal effect of suspended imposition of 12 sentence explained to you by your lawyer? 13 A. Yes. 14 Q. And by the prosecutor? 15 A. Yes. 16 Q. What did they tell you? 17 A. They told me I would be on three years 18 probation. Keep my nose clean during that time 19 and basically there would be no record of this 20 ever happening, you know. But if something 21 happened during that time, then they would come 22 back and reapply everything that was initially 23 on it. 24 Q. Did you serve your three years on probation? 25 A. Yes, sir. LaNell R. Larson, C.C.R. No. 0459 27 Registered Professional Reporter 1 Q. Were you discharged from probation? 2 A. Yes, sir. 3 Q. Nonetheless, did you find that you were required 4 to register under Missouri's Sex Offender 5 Registration Act? 6 A. Yes, sir. 7 Q. You are registered? 8 A. Yes, sir. 9 Q. During all of the time since November of 1993 10 has your stepdaughter continued to live with 11 you? 12 A. No. She was out of the home for I think two 13 years, and then we had reunification through the 14 reunification process. 15 Q. Were those two years from the time of your -- 16 the time you were charged? 17 A. Yes, sir. 18 Q. Who did she live with during that time? 19 A. She lived with her grandparents. 20 Q. At the time that the reunification was brought 21 about, was there a family home investigation? 22 A. Nope. 23 Q. Who made the decision that she could be 24 reunified? 25 A. Judge Moran, the same judge that I gave the LaNell R. Larson, C.C.R. No. 0459 28 Registered Professional Reporter 1 suspended imposition of sentence to. 2 Q. Was there a home study done that was reported to 3 Judge Moran? 4 A. Yeah. Yeah, there was. 5 Q. Has any law enforcement or prosecutorial 6 authority at any time since November of 1993 7 ever accused you of being a danger to anyone 8 else? 9 A. No, sir. 10 Q. Have you ever been accused of harming or 11 endangering anyone else? 12 A. No, sir. 13 Q. Have you ever been accused by anyone of 14 molesting anyone? 15 A. No. 16 Q. Do you consider yourself to be a danger to 17 anyone else? 18 A. No, I do not. 19 Q. How is your stepdaughter doing in school? 20 A. Straight A student. 21 Q. Okay. How have your other three kids done in 22 school? 23 A. They were all in the upper 1 percent of their 24 class. 25 Q. Are you employed? LaNell R. Larson, C.C.R. No. 0459 29 Registered Professional Reporter 1 A. Yes, sir. 2 Q. What industry do you work in? 3 A. Manufacturing and installing. 4 Q. Approximately how many employees does your 5 employer have? 6 A. Eighty-three including me. I'm the general 7 manager. 8 Q. Do you have responsibilities that put you in 9 contact with others outside your -- the other 82 10 employees? 11 A. Continuously. 12 Q. Is the fact of your registration a -- under the 13 Missouri Sex Offender Registration Act a cause 14 of potential difficulty for you? 15 A. Sure. 16 Q. And describe the nature of that, please. 17 A. Well, there's a stigma that goes with it. If 18 somebody was to find out -- the people that know 19 me personally, it probably wouldn't be a big 20 issue, you know, take it for what it is. I 21 mean, there's a stigma that goes with it. 22 You're just lumped in a class. Nobody knows 23 what degree of offense you had at that time or 24 the circumstances surrounding it. 25 So yeah, it's gonna be a problem. LaNell R. Larson, C.C.R. No. 0459 30 Registered Professional Reporter 1 Q. Does your employer have a number of sizable 2 customers or clients? 3 A. We're an $8 million company, yeah. 4 Q. To your knowledge do any of the customers of 5 your employer know of your -- the requirement 6 that you register? 7 A. No. No. 8 Q. All right. Are you concerned that should some 9 major customer of your employer learn of the 10 fact of your registration -- 11 A. Sure. 12 Q. -- it could cause you difficulty or even loss of 13 your job? 14 A. Sure. 15 Q. That hasn't happened yet? 16 A. No. 17 MR. BENSON: No further 18 questions. 19 THE COURT: Any questions? 20 MS. KEDIGH: Yes. 21 CROSS-EXAMINATION 22 BY MS. KEDIGH: 23 Q. Good morning. 24 A. How are you? 25 Q. Have you ever been accused of any inappropriate LaNell R. Larson, C.C.R. No. 0459 31 Registered Professional Reporter 1 contact with anyone else prior to the 2 incident -- 3 A. No. 4 Q. -- with your stepdaughter? 5 A. No. 6 Q. Have you experienced any adverse consequences as 7 a result of having to register under the 8 Missouri Sex Offender Registration Act? 9 A. In my initial neighborhood, yes. 10 Q. And what is that? 11 A. It's just from the neighbors when they found 12 out. Somebody had passed around a list that 13 showed the registration. My name was on it, and 14 I was confronted with it. But, you know, you 15 deal with it at the time you're confronted with 16 it. I mean, I had no problem explaining it. 17 And over a period of years when they get to know 18 you it probably does settle down a little bit. 19 MS. KEDIGH: All right. Thank 20 you. No further questions. 21 CROSS-EXAMINATION 22 BY MR. PRITCHETT: 23 Q. Good morning. 24 A. How are you? 25 Q. Do you still live in that neighborhood or have LaNell R. Larson, C.C.R. No. 0459 32 Registered Professional Reporter 1 you moved since then? 2 A. I've moved since. 3 Q. Has the -- your registration on the sex offender 4 list caused any problems in that neighborhood? 5 A. Not to this point. 6 Q. How long have you lived in your new 7 neighborhood? 8 A. Eleven months. 9 Q. When you are discussing the charges that 10 initiated your appearance on the sex offender 11 list, I wasn't quite clear how the allegations 12 came up. I thought you said the investigator 13 thought your wife had made some charges. How is 14 it attention focused on you and you became the 15 suspect? 16 A. At that point I don't have a clue other than 17 maybe my stepdaughter told her that I touched 18 her butt or swatted her butt or whatever. 19 Q. Your stepdaughter may have told -- 20 A. The baby-sitter. 21 Q. The baby-sitter? 22 A. Right. And at the time of the allegations when 23 it came up. 24 Q. And then did the baby-sitter -- if you know, did 25 the baby-sitter report it to the authorities? LaNell R. Larson, C.C.R. No. 0459 33 Registered Professional Reporter 1 A. Yes. 2 Q. So your wife did not make the charges? 3 A. No. 4 MR. PRITCHETT: Okay. That's all 5 I have. Thank you. 6 THE COURT: All right. Anything 7 else? 8 MR. BENSON: Not with this 9 witness, no. 10 THE COURT: Thank you, sir. You 11 may step down. 12 (Witness excused by the 13 Court.) 14 (Witness sworn by the 15 Court.) 16 THE COURT: Be seated, please. 17 MR. B, 18 Having been duly sworn by the Court, testified 19 as follows: 20 DIRECT EXAMINATION 21 BY MR. BENSON: 22 Q. Mr. B, we've also agreed to use your initial. 23 What county do you reside in? 24 A. Jackson County. 25 Q. Are you currently registered under the Missouri LaNell R. Larson, C.C.R. No. 0459 34 Registered Professional Reporter 1 Sex Offender Registration Act? 2 A. Yes, I am. 3 Q. How -- how long have you been registered? 4 A. Three years, four years. 5 Q. And when was the -- in what year was the 6 sentence that caused you to register about three 7 years ago? 8 A. 1993. 9 Q. And were you among those who did not have to 10 register because you lived in Jackson County at 11 the time of the enactment of the Sex Offender 12 Registration Act and therefore were not coming 13 into the county? 14 A. That's correct. 15 Q. And after the statute was amended, you were 16 required to register? 17 A. That's correct. 18 Q. And did you? 19 A. Yes. 20 Q. Back in 1993, about how old were you at the time 21 of the offense? 22 A. Thirty-four, thirty-five. 23 Q. Were you married? 24 A. Yes. 25 Q. Did you have children? LaNell R. Larson, C.C.R. No. 0459 35 Registered Professional Reporter 1 A. Yes. 2 Q. What were their ages and genders? 3 A. Six and four, both males. 4 Q. Were you -- was your marriage going through a 5 divorce? 6 A. Yes. 7 Q. Was the offense that later required you to 8 register an offense based on an allegation 9 concerning one of your two sons? 10 A. Yes. 11 Q. What was the nature of the charge? 12 A. That I had whipped them with a belt. 13 Q. And what were the circumstances at the time that 14 allegation arose? 15 A. We were in the midst of a divorce, just starting 16 that. My ex-wife had been diagnosed with Lyme's 17 Disease and was bedfast for about a year prior 18 to that. And she had almost died two or three 19 times. It was very stressful. 20 Q. And in the course of the divorce were you 21 seeking custody of the two boys? 22 A. No. 23 Q. Okay. Was there any -- did acrimony arise in 24 the course of the divorce -- 25 A. Yes. LaNell R. Larson, C.C.R. No. 0459 36 Registered Professional Reporter 1 Q. -- between you and your then wife? 2 A. Yes. 3 Q. All right. And at the time that the 4 disciplining of your son with a belt occurred, 5 were you and your wife living together or apart? 6 A. Living together. 7 Q. All right. Was the divorce action pending? 8 A. Yes. 9 Q. All right. What happened that caused your -- to 10 cause the authorities to be notified that you 11 had disciplined your son with a belt? 12 A. I'm not really sure who filed the charges. I 13 think my ex-wife did, but I'm not sure. 14 Q. All right. And what did the injury to your son 15 consist of? 16 A. There was some bruising. 17 Q. Okay. And when the matter was brought up, did 18 you have a lawyer? 19 A. Yes. 20 Q. Did you end up pleading not guilty? Did you 21 start out by pleading not guilty? 22 A. No. 23 Q. What did you plead initially? 24 A. That I had in -- actually, I spanked him with a 25 belt. LaNell R. Larson, C.C.R. No. 0459 37 Registered Professional Reporter 1 Q. Were you sentenced at that time? 2 A. It was about a year and a half later. It was in 3 '93. The offense was in '91. 4 Q. Okay. I'm gonna show you a copy of what is 5 Exhibit 13, a partial transcript of proceedings. 6 Is that in your case? 7 A. Yes. It appears to be. 8 Q. And were you given a suspended imposition of 9 sentence? 10 A. Yes. 11 Q. Were you placed on probation? 12 A. Yes. 13 Q. For how long? 14 A. Five years. 15 Q. Did you serve that probation? 16 A. Yes. 17 Q. I'm going to show you a copy of Exhibit 14. Is 18 that the Order of Discharge from Probation -- 19 A. Yes, it is. 20 Q. -- in your case? 21 A. Yes. 22 Q. Where did your sons live during the time you 23 were on probation? 24 A. With their mother. 25 Q. And how old are your sons now? LaNell R. Larson, C.C.R. No. 0459 38 Registered Professional Reporter 1 A. Eighteen and fifteen. 2 Q. Are you in business? 3 A. Yes. 4 Q. What's the nature of your business? 5 A. Private contractor, remodeling. 6 Q. Do you have any partners in that business? 7 A. Primarily just myself. My sons work with me 8 from time to time. 9 Q. Both your sons? 10 A. Yes. 11 Q. And did they finish school? 12 A. One of them still is in school. 13 Q. And the other? 14 A. He's working on getting his GED right now. 15 Q. And do they -- both of those sons -- work with 16 you in your contracting business? 17 A. Part time. 18 Q. All right. And what is your relationship with 19 them? 20 A. Very good. 21 Q. Prior to this incident back in 1991, had you 22 ever been in any difficulty with the law? 23 A. No. 24 Q. Ever been charged with anything other than 25 traffic offenses? LaNell R. Larson, C.C.R. No. 0459 39 Registered Professional Reporter 1 A. No. 2 Q. Ever harmed anyone? 3 A. No. 4 Q. Since the incidents in 1991, have you been 5 charged with any other offense? 6 A. No, sir. 7 Q. Have you ever been accused by any law 8 enforcement or prosecutorial authority of ever 9 having harmed anyone or being a danger to 10 anyone? 11 A. No, sir. 12 Q. Have you harmed or been a danger to anyone since 13 then? 14 A. No, sir. 15 Q. Do you consider yourself to be dangerous to 16 anyone? 17 A. No. 18 Q. Friends or strangers? 19 A. No. 20 MR. BENSON: I have no further 21 questions. 22 MS. KEDIGH: I have no questions, 23 Your Honor. 24 25 LaNell R. Larson, C.C.R. No. 0459 40 Registered Professional Reporter 1 CROSS-EXAMINATION 2 BY MR. PRITCHETT: 3 Q. Good morning. 4 A. Good morning. 5 Q. You said after you had used the belt to 6 discipline your child -- actually, was it to 7 discipline the child? 8 A. Yes. 9 Q. -- there were bruises. Was there any 10 hospitalization required or doctor's visit? 11 A. Not that I'm aware of. 12 MR. PRITCHETT: Thank you. 13 That's all I have. 14 MR. BENSON: Nothing further. 15 THE COURT: Thank you. You may 16 step down. 17 (Witness excused by the 18 Court.) 19 THE COURT: Before I forget, with 20 respect to Mr. S there was a discharge from -- 21 the probation was eventually discharged? 22 MR. BENSON: Yes. 23 THE COURT: Were you eventually 24 discharged from probation? 25 MR. BENSON: Yes, sir. LaNell R. Larson, C.C.R. No. 0459 41 Registered Professional Reporter 1 THE COURT: All right. Any other 2 evidence? 3 MR. BENSON: Do we have all 4 Exhibits 1 through 16 admitted? 5 THE COURT: Yes, sir. 6 MR. BENSON: Now as to these 7 pending motions, plaintiffs have no further 8 evidence. 9 THE COURT: Defendants have any 10 evidence? 11 MS. KEDIGH: No, Your Honor. 12 THE COURT: Any evidence? 13 MR. PRITCHETT: I have some, 14 Judge. 15 THE COURT: All right. 16 MR. PRITCHETT: What's marked 17 Defendant's Exhibit 20 is actually already into 18 evidence as Plaintiff's Exhibit 11. So I guess 19 to forego cluttering the file up anymore than 20 need be, I will not submit them. I will rely on 21 the plaintiff's. 22 THE COURT: Very well. 23 MR. PRITCHETT: I have marked as 24 Exhibit 21 -- it's probably more in the nature 25 of a supplement to the suggestions in opposition LaNell R. Larson, C.C.R. No. 0459 42 Registered Professional Reporter 1 to the preliminary injunction motion -- but some 2 quotes from cases concerning recidivism rates 3 the courts have found to apply. 4 THE COURT: Any objection to 21? 5 MR. BENSON: I don't object to it 6 going into the record, but I guess I do object 7 to it as being evidence. It's more in the 8 nature of argument. 9 THE COURT: All right, sir. 10 (The Court received into 11 evidence Exhibit 21.) 12 MR. PRITCHETT: I also have 13 Exhibits 22 and 23. Exhibit 22 is House Report 14 103-392 from the United States Congress on the 15 Jacob Wetterling Crimes Against Children 16 Registration Act. 17 THE COURT: Any objection to 18 Exhibit 22 and 23? 19 MR. BENSON: I do not object to 20 their authenticity, but I -- I do not object to 21 their being admitted into evidence for whatever 22 they're worth. I think the legislative intent 23 of the federal act is of marginal relevance to 24 the state act. 25 THE COURT: All right, sir. LaNell R. Larson, C.C.R. No. 0459 43 Registered Professional Reporter 1 (The Court received into 2 evidence Exhibits 22 and 23.) 3 MR. PRITCHETT: Judge, on Exhibit 4 22, I would -- I submit that primarily because 5 at the time -- it's marked page 34. Actually, I 6 think it's the third page. Down -- about 7 halfway down, Judge, there's a paragraph 8 beginning. 9 "Evidence suggests that child 10 offenders are generally serial 11 offenders." 12 THE COURT: I see that. 13 MR. PRITCHETT: 14 "Indeed, one recent study 15 concluded behavior is highly 16 repetitive to the point of being 17 compulsive and found that 74 percent 18 of imprisoned child sex offenders had 19 one or more prior convictions for 20 sexual offense against a child." 21 MR. BENSON: Well, I mean, that 22 would -- I would object to that as if it's being 23 offered to substantively prove the assertion. 24 The fact that that was -- that was an assertion 25 that was relied on by Congress when it adopted LaNell R. Larson, C.C.R. No. 0459 44 Registered Professional Reporter 1 the federal act has marginal relevance in this 2 case, but . . . . 3 THE COURT: All right. Your 4 objection is noted of record. 5 MR. PRITCHETT: I have Exhibit 23 6 which is House Report 105-256. 7 THE COURT: Same objection, 8 Mr. Benson? 9 MR. BENSON: Yes. 10 THE COURT: All right. 11 MR. PRITCHETT: And the point 12 that I have out of that, Judge, is what's marked 13 page 6 at the top right. About a third of the 14 way down to halfway down is "Purpose and 15 Summary". And then there's a paragraph that 16 starts: 17 "Part of what makes this problem 18 so unsettling is the peculiar nature 19 of the perpetrators. Sex offenders 20 have a high likelihood of reoffending. 21 In fact, they're nine times more 22 likely to repeat their crimes than any 23 other class of criminal." 24 There are parts of the deposition that's in 25 evidence already that I would also like to point LaNell R. Larson, C.C.R. No. 0459 45 Registered Professional Reporter 1 out. I can do that now or as part of our 2 argument. I'll leave that to you. 3 THE COURT: Whichever you prefer. 4 MR. PRITCHETT: I think I can do 5 it fairly quickly, Judge. 6 THE COURT: All right, sir. 7 MR. PRITCHETT: If that's okay. 8 It's Plaintiff's Exhibit 11. On page 8 9 line 3 through page 9 line 3. And I guess to 10 make things more expeditious I'll summarize it, 11 unless you prefer me to read the whole thing in. 12 I think at page 8 line 3 through page 9 line 3, 13 the gist of that is sex offenders are more 14 likely to reoffend, commit another crime, than a 15 member of the general public is. 16 Page 9 line 10 through page 9 line 22. I 17 think the gist of that is that child molesters 18 are more likely to reoffend, commit another 19 crime, than a member of the general public. 20 Page 10 line 17 through page 11 line 12. 21 There's a reference to studies. Harris and Rice 22 found a 50 percent recidivism rate for child 23 offenders having a second offense checking out 24 to 15 years after the initial offense. There's 25 also in that section a study by Prentky -- LaNell R. Larson, C.C.R. No. 0459 46 Registered Professional Reporter 1 P-R-E-N-T-K-Y -- finding a 52 percent recidivism 2 rate for child offenders having a second sex 3 offense after 25 years. 4 There's also a reference in that section to 5 the Bureau of Justice having a finding of 6 41 percent of those convicted of non-rape sexual 7 assaults had a reoffense of some kind after 8 three years. 9 Then page 11 line 13 through page 12 line 10 9. There's a discussion about these studies 11 that have been cited are based on subsequent 12 convictions. The recidivism rate, according to 13 the doctor testifying, is calculated 14 conservatively for that reason, because sex 15 offenses often go unreported. And to have a 16 conviction, even if the crime is reported, there 17 has to be -- it has to be -- the person has to 18 be arrested and convicted. 19 Page 11 line 25 through page 12 line 3. 20 The expert, Dr. Lacoursiere, indicates that sex 21 offenses are more often than not unreported. 22 Page 16 line 16 through page 17 line 13. 23 The doctor states, "The rate of reoffending by 24 sex offenders remains significant for many years 25 out. It's not just something that occurs within LaNell R. Larson, C.C.R. No. 0459 47 Registered Professional Reporter 1 the first five years or so but is a continuing 2 risk. 3 Page 17 line 14 through page 12 line 22. 4 Persons with a conviction -- 5 THE COURT: Hold on a minute. 6 You started at page 17 line 14 and go forward 7 from page -- to page what? 8 MR. PRITCHETT: Well I said 12, 9 but that's obviously a problem with my typing. 10 THE COURT: Would it be 17, then, 11 or what? 12 MR. PRITCHETT: I think it's 13 still 17, Judge. I think it's 17 lines 14 14 through 22. 15 THE COURT: All right. 16 MR. PRITCHETT: Yes. There the 17 doctor states that a person with a conviction 18 for any sex offense is significantly more likely 19 to commit a sex offense than a member of the 20 general public is. 21 Page 26 lines 8 through 14. 22 Dr. Lacoursiere stated that past behavior is one 23 of the best predictors of future behavior. The 24 group who previously offended is at a higher 25 risk than a group that never has. LaNell R. Larson, C.C.R. No. 0459 48 Registered Professional Reporter 1 Page 27 line 23 through page 29 line 29. 2 There's a discussion about whether or not any 3 tests or examinations can guarantee whether or 4 not a particular individual will reoffend, and 5 the doctor concludes that he cannot guarantee 6 that any tests would do that. 7 Page 29 lines 15 through 19. The doctor 8 stated that the fact that a person has any sex 9 offense in his or her past is a significant risk 10 factor. 11 THE COURT: Is that all? 12 MR. PRITCHETT: A couple remarks 13 about the other depositions -- three, I think. 14 In Dr. Lacoursiere's discovery deposition -- 15 that's Plaintiff's Exhibit 9. At page 43 line 16 18 through page 44 line 9 the doctor stated that 17 even after an evaluation of a specific sex 18 offender resulted in a conclusion that he or she 19 was very unlikely to reoffend -- so even after 20 the exam was given and they were found to be not 21 as risky, not likely to reoffend -- that sex 22 offender, excluding the aged or the bedridden, 23 would still be at a higher risk for a future sex 24 offense than would be a member of the public. 25 Then in Mr. Oldfield's deposition -- that's LaNell R. Larson, C.C.R. No. 0459 49 Registered Professional Reporter 1 Plaintiff's Exhibit 4 -- he made some remarks 2 that I think go to the weight of the statistics 3 that have been offered today by the plaintiff. 4 Dr. Oldfield had some reports that he already 5 had that were provided regarding recidivism 6 rates within the Missouri Department of 7 Corrections. 8 Mr. Oldfield reported at page 47 line 17 9 through page 48 line 13 that the recidivism 10 rates reported were -- would be under-reported 11 because they pick up only reoffenses that 12 occurred in Missouri and, of course, include 13 only individuals that are caught for an offense 14 and convicted. 15 Then right after that, at page 48 line 14 16 through page 49 line 12 he discusses the reports 17 that he did at my request based on information 18 that Arthur Benson asked us to run a report on. 19 Those reports -- I think it's the one that -- 20 it's the very thick one that lists everyone in 21 the Department of Corrections with a sex offense 22 and then whether or not they had an additional 23 sex offense after that or an offense of any 24 kind. That report lumps people -- inmates 25 together who are in prison, who have been out a LaNell R. Larson, C.C.R. No. 0459 50 Registered Professional Reporter 1 short time, and those who have been out a long 2 time. So if they're still in prison, I mean, 3 there would be no subsequent offense. 4 THE COURT: That completes the 5 State's offer? 6 MR. PRITCHETT: Yes, Judge. That 7 completes our evidence. 8 THE COURT: All right. 9 Mr. Benson? 10 MR. BENSON: No rebuttal. 11 THE COURT: All right. Any 12 argument? 13 MR. BENSON: I would be pleased 14 to make a short argument or to file our post 15 findings with the brief. We have not filed our 16 reply brief. 17 THE COURT: All right. 18 MR. BENSON: Whatever. 19 THE COURT: Tell me what relief 20 each plaintiff is requesting. 21 MR. BENSON: Yes. Your Honor, 22 there are two motions pending, as you know. We 23 are -- in the first motion for class 24 certification we are asking the Court first to 25 certify a class of all persons required to LaNell R. Larson, C.C.R. No. 0459 51 Registered Professional Reporter 1 register in Missouri under the Sex Offender 2 Registration Act as a plaintiff class. We 3 believe for all the reasons stated in our 4 pleading that we've met the requirements of a 5 plaintiff class. 6 We are also in that same motion asking for 7 certification of two defendant classes; one to 8 consist of all the county prosecuting attorneys 9 and the other to consist of all the county 10 sheriffs. For the reasons we stated in our 11 briefs, we believe that the defendant classes 12 are appropriate so that any relief that the 13 plaintiffs may be granted would be effective for 14 all the members of the plaintiffs' class. 15 We acknowledge that a declaration that the 16 statute is unconstitutional in some respects 17 would likely be recognized by the prosecutor or 18 sheriff in another county other than Jackson 19 County, but we are asking for complete relief by 20 certification of defendant classes. 21 Our second pending motion is a motion for 22 preliminary injunction. We believe that we 23 are -- we have met the criteria for preliminary 24 injunction and are asking the Court to therefore 25 enjoin the requirement that the plaintiff -- LaNell R. Larson, C.C.R. No. 0459 52 Registered Professional Reporter 1 plaintiff class be required to register on an 2 ongoing basis while the litigation is pending. 3 We're asking the Court to suspend the 4 implementation of the Missouri Sex Offenders 5 Registration Act. 6 The extent of the injunction would depend 7 upon which of the legal bases the Court would 8 rely upon. For instance, our argument is that 9 this is an improper retrospective application of 10 the statute prohibited by -- Article I, Section 11 13 of the Missouri Constitution would prohibit 12 its implementation for anyone prior to the 13 effective date of the statute in 1994. 14 So for instance the two witnesses who 15 testified today that their offenses occurred in 16 1991 or November or December of 1993, their 17 offenses occurred before the first effective 18 date of the very first Sex Offenders Act of 19 Missouri. So the relief we're asking for them 20 in the preliminary injunction is to enjoin the 21 application of the SORA to -- for any 22 registration required as a result of an offense 23 that took place before the SORA became 24 effective. 25 THE COURT: That would be Mr. S LaNell R. Larson, C.C.R. No. 0459 53 Registered Professional Reporter 1 and Mr. B? 2 MR. BENSON: Correct. Or any -- 3 if the plaintiff class were certified, any other 4 member of the plaintiff's class whose events 5 took place before that date. 6 The other bases for relief are broader 7 attacks upon the statute with respect to its 8 violation of the Equal Protection and Due 9 Process Clauses of the Missouri Constitution. 10 And if the Court adopted that view, then it 11 would -- we would ask to enjoin the statute with 12 respect to anyone required to register until 13 those defects have been cured by subsequent 14 legislation. 15 THE COURT: All right. Thank 16 you, sir. 17 MS. KEDIGH: Let me first address 18 the motion for class certification. On a 19 practical level, the only advantage to the 20 plaintiff class, if this were certified as a 21 class action, would be to apply the preliminary 22 injunction as to all the plaintiffs. Other than 23 that, if this case proceeded to trial as to just 24 the plaintiffs named in the initial petition, if 25 the law was declared unconstitutional that would LaNell R. Larson, C.C.R. No. 0459 54 Registered Professional Reporter 1 apply to all those coming under SORA's reach in 2 Missouri. 3 So the only practical effect of declaring 4 this a class action is to apply a preliminary 5 injunction to those people not before the Court, 6 and that would put people in Missouri, 7 specifically children, at risk if the 8 registration and notification provisions of SORA 9 are suspended. So on that basis I would request 10 that it not be certified. 11 As to a preliminary injunction, again my 12 argument applies as to class certification. And 13 I would like to note that the folks who 14 testified today are not named plaintiffs and so 15 should not be regarded unless the class is 16 certified. There was no showing that their 17 situation is substantially similar to the named 18 plaintiffs in this case. 19 The overriding consideration about a 20 preliminary injunction is whether or not it 21 would place people at risk, and certainly the 22 balancing interest favors not granting the 23 preliminary injunction in this case. 24 Thank you. 25 MR. PRITCHETT: I agree that the LaNell R. Larson, C.C.R. No. 0459 55 Registered Professional Reporter 1 only purpose for a class at all, even if that 2 applied, would be to make it apply -- the 3 preliminary injunction apply statewide as 4 opposed to just in Jackson County. That 5 presupposes there should be a preliminary 6 injunction. So I think the two issues kind of 7 get rolled together. 8 So primarily a class should not be 9 certified since there's really no necessity for 10 it. If it goes to trial and there is a 11 declaration and there is an injunction, it will 12 apply because there will be a judgment of 13 unconstitutionality. 14 I think probably if there's a concern about 15 the speed with which we proceed, we could 16 probably go ahead to the hearing on the merits 17 fairly expeditiously. So I think timing in 18 addition to effecting the preliminary injunction 19 also undercuts the need for the class 20 certification. 21 As far as the preliminary injunction goes, 22 the merits are addressed I think in our motions 23 and our responses. And since my colleagues 24 haven't really gotten into that, I won't either. 25 I think -- well, I'll get into it for this -- LaNell R. Larson, C.C.R. No. 0459 56 Registered Professional Reporter 1 which there are numerous cases cited from cases 2 all over the country that sex offender 3 registration and notification laws are fairly 4 routinely upheld. We've got two Supreme Court 5 decisions from earlier this year upholding them 6 on other constitutional grounds, but -- ones 7 that also apply here in that they talk about 8 whether or not registration notification is 9 punishment or not which may be one of the 10 arguments they hinge on. The Court very 11 specifically said they are not punishment. 12 Turning from the merits to the other 13 factors, I think the risk of irreparable harm is 14 not huge. We have individuals that are already 15 subject to registration, already subject to 16 notification. Even if there were an injunction 17 at this point, their names are already out there 18 both as part of this process of registration and 19 notification and also because their crimes are 20 public records. Although with the suspended 21 imposition of sentence, I guess that goes away 22 after a time. The criminal proceedings are 23 still public. 24 The risk, on the other hand, I think is 25 quite large. We've got legislatures in all the LaNell R. Larson, C.C.R. No. 0459 57 Registered Professional Reporter 1 states having these kinds of laws. Without the 2 registration, police investigation efforts will 3 be hamstrung. They'll have less information to 4 work with in investigating crimes than they 5 would have otherwise, and individuals in 6 neighborhoods won't be able to know whether -- 7 whether or not they need to take precautions. 8 If we have an individual in a neighborhood 9 that everybody knows and they know there's not a 10 concern with that person, that's fine. But 11 individuals, members of the public, ought to 12 have the opportunity to decide whether or not 13 they need to take precautions for themselves and 14 their children; and enjoining the notification 15 process would prevent them from having that 16 information. 17 That's all I have. 18 THE COURT: Thank you, sir. 19 MR. BENSON: Your Honor -- 20 THE COURT: Before you begin your 21 rebuttal -- 22 MR. BENSON: No. No. It's not 23 rebuttal. I was going correct a misstatement, 24 but -- 25 THE COURT: All right. I want to LaNell R. Larson, C.C.R. No. 0459 58 Registered Professional Reporter 1 give you a chance to do that. 2 Is it correct that none of the witnesses 3 today are named parties? 4 MR. BENSON: Yes. That's 5 correct. 6 THE COURT: All right. Will you 7 offer anything from any of the named parties? 8 MR. BENSON: Well, in a -- in a 9 preliminary injunction hearing, the Court may 10 take into account the evidence and the pleadings 11 and affidavits. We do have one affidavit. The 12 affidavit, by the way -- excuse me for not 13 standing. The affidavit is from a non-party as 14 well. So for the purposes of a motion, we are 15 offering evidence in support of it. 16 THE COURT: All right. Go ahead 17 with what -- 18 MR. BENSON: There was one brief 19 misstatement earlier by Mr. Pritchett. I'm sure 20 it was unintentional. When he was quoting from 21 Plaintiff's Exhibit 11, the Lacoursiere 22 deposition, at page 10 he twice referred to 23 statements that the doctor made concerning, as 24 Mr. Pritchett put it, child offenders. In fact, 25 the question on page 10 of that deposition to LaNell R. Larson, C.C.R. No. 0459 59 Registered Professional Reporter 1 the doctor was about child molesters, and 2 there's a substantial difference. 3 THE COURT: I understood -- I 4 understood from the context that there was a 5 word that was left out. 6 MR. PRITCHETT: If I said 7 offender, I apologize, Judge. I agree it does 8 say child molester. 9 THE COURT: Right. 10 MR. BENSON: With respect to the 11 timing issue Mr. Pritchett raised, is this court 12 going to continue on be on -- have a civil 13 docket after the first of January? 14 THE COURT: No, but I have the 15 option of retaining specific cases that would 16 necessitate further attention. And having gone 17 this far with this, this is probably one that I 18 would retain. 19 I guess what I need to know is what -- upon 20 a hearing on permanent injunction, what 21 additional evidence would you have? 22 MR. BENSON: Well, we would have 23 testimony from the plaintiffs and their -- we 24 intend to offer some evidence with respect to 25 the harmful effects of registration primarily LaNell R. Larson, C.C.R. No. 0459 60 Registered Professional Reporter 1 with respect to employment and the actual 2 effects of the stigma as it plays out in the 3 lives of the plaintiffs. 4 I don't expect that it would take us very 5 long to prepare that evidence, and each side 6 would probably want to do discovery before that. 7 I would think that within a couple of months we 8 could be ready for a three to six-hour hearing 9 on the final motion -- on the merits of the 10 case. 11 THE COURT: Well, I was asked by 12 Civil Records last week as to which cases I 13 intended to keep if any, and this will be on the 14 list that I turn in. 15 All right. How long do you all need to 16 file whatever else you need to file? 17 MR. BENSON: I would like to 18 propose the plaintiffs would file ours two weeks 19 from today, two weeks after that. I would do it 20 sooner, but Thanksgiving is gonna slow us down. 21 MS. KEDIGH: I wouldn't need 22 anymore time than that if I file anything. 23 MR. BENSON: Two weeks two weeks 24 one week -- two weeks for us, two weeks for the 25 defendants, and one week reply for the LaNell R. Larson, C.C.R. No. 0459 61 Registered Professional Reporter 1 plaintiffs. Would that work for the Court? 2 THE COURT: That's fine. 3 Whatever the parties want to do. 4 MR. BENSON: Okay. 5 MR. PRITCHETT: I think so. 6 We're talking about if you desire more on the 7 legal argument, too, or -- 8 MR. BENSON: Yeah. It's my 9 understanding we'll file our proposed findings 10 of fact and conclusions of law and any argument 11 that we want to support those. We'll go first, 12 you respond, and we reply. 13 MR. PRITCHETT: That's fine. 14 MS. KEDIGH: That's fine. 15 THE COURT: Thank you very much 16 for coming. 17 MR. BENSON: Judge, is it 18 premature to ask the Court if there's a non-jury 19 week coming up sometime in the spring when we 20 could set this matter? 21 THE COURT: Yes, it would be. 22 I'm not exactly sure -- 23 MR. BENSON: All right. 24 THE COURT: -- which way is up 25 just yet. LaNell R. Larson, C.C.R. No. 0459 62 Registered Professional Reporter 1 MR. BENSON: We'll come back 2 after the first of the year. 3 THE COURT: All right, sir. 4 (Proceedings adjourned at 5 11:59 a.m.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 LaNell R. Larson, C.C.R. No. 0459 63 Registered Professional Reporter 1 CERTIFICATE OF REPORTER 2 I, LaNell R. Larson, Certified Shorthand 3 Reporter and Registered Professional Reporter, 4 certify that I am the official reporter for 5 Division 18, 16th Judicial Circuit of Missouri, 6 and as such on the dates set forth herein I was 7 present and reported all the proceedings in the 8 case of Jane Doe I et al., vs. John Phillips 9 Jackson County Sheriff; Michael Sanders, 10 Prosecuting Attorney for Jackson County; and 11 Colonel Roger Stottlemyre, Superintendent of the 12 Missouri Highway Patrol. 13 I further certify that the foregoing 14 pages contain a true and complete transcript of 15 my shorthand notes of said proceedings. 16 17 ______________________________ 18 LaNell R. Larson, RPR 19 Certified Court Reporter No. 0459 20 21 22 23 TRANSCRIPT COMPLETED: December 5, 2003 24 25 LaNell R. Larson, C.C.R. No. 0459 64 Registered Professional Reporter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 LaNell R. Larson, C.C.R. No. 0459 65 Registered Professional Reporter