dissenting: I respectfully dissent from the majority’s decision to rewrite K.S.A. 21-2512.
I disagree with these colleagues because the legislative history of the statute establishes that a judicial rewrite to extend postcon-viction DNA testing to anyone convicted of second-degree murder is “clearly contrary to tire legislative intent” and violates the separation of powers doctrine. State v. Limon, 280 Kan. 275, 304, 122 P.3d 22 (2005) (discussing State v. Marsh, 278 Kan 520, 102 P.3d 445 (2004), rev'd 548 U.S. 163, 126. S. Ct. 2516, 165 L. Ed. 2d 429 [2006]). And when the judicial alteration of a statute would be contrary to legislative intent, courts instead “must nullify the statute.” (Emphasis added.) Limon, 280 Kan. at 304.
*15The Marsh majority opinion is on point. The legislative history of the death penalty statute at issue there (K.S.A. 21-4624[e]) reveals that the attorney general recommended that the death penalty be imposed only if the defendant’s aggravating circumstances outweighed the mitigating circumstances and not when they were of equal weight, i.e., in equipoise. That official testified, “Now if they are equal, ‘tie’ goes to State. We’re proposing ‘tie’ goes to defense.” Marsh, 278 Kan at 541 (quoting State v. Kleypas, 272 Kan. 894, 1014, 40 P.3d 139 [2001]). But as the Marsh court observed, “ ‘[ujnfortunately, the legislature did not follow the attorney general’s recommendation.’ ” 278 Kan. at 541.
The Marsh majority refused to write the attorney general’s specific recommendation into K.S.A. 21-4624(e) to save the death penalty statute from what it concluded was the legislature’s unconstitutional equipoise standard. Instead, the majority nullified the statute, effectively overruling Kleypas from 3 years earlier. Its rationale for nullifying instead of rewriting was well summarized by a unanimous Limón court less than 1 year later:
“The [Marsh] majority concluded that the statutory construction adopted in Kleypas was not within the apparent intent of the legislature. The legislative history of the death penalty statute showed that the attorney general had presented the legislature the precise question of whether the equipoise provision was constitutional. The attorney general recommended that the statute provide that the aggravating circumstances must outweigh the mitigating circumstances before a death sentence may be imposed and advised that without this change tire constitutionality of the statute was in question. Despite this specific recommendation and advice, the legislature did not act on the attorney general’s advice. 278 Kan. at 540. Thus, to read the statute in the manner suggested in Kleypas was contrary to legislative intent.” (Emphasis added.) 280 Kan. at 304.
The Limon court went on to further characterize the rationale and holding in Marsh:
“The Marsh court concluded it was a violation of the separation of powers doctrine for the court to reiorite a statute in a manner so clearly contrary to the legislative intent. The only option in such a situation is to nullify the statute.” (Emphasis added.) 280 Kan. at 304.
As the Marsh court itself had recognized, to “ ‘adopt[] language exactly the opposite of what the legislature stated’ ” would “ ‘in*16vade[] the province of the legislature.’ ” Marsh, 278 Kan. at 540 (quoting Kleypas, 272 Kan. at 1124-25 [Davis, J., dissenting]).
The salient parallel between Marsh and Cheeks’ situation is clearly presented by the legislative histoiy of K.S.A. 21-2512. As we acknowledged in State v. Denney, 278 Kan. 643, 655, 101 P.3d 1257 (2004), two assistant attorneys general assigned to the Kansas Bureau of Investigation (KBI) testified before legislative judiciary committees in support of two amendments. The first amendment is relevant to this discussion because in it the KBI recommended postconviction DNA testing generally for “murder and rape.”
“ “While those of you involved in the appropriations process realize how limited our resources are in the laboratory, we would like to recommend the adoption of the amendment described in Attachment A, which will provide for a mechanism that persons convicted for the most serious offenses, i.e., murder and rape, could petition the court for post-conviction analysis to be conducted by the KBI.’ Minutes, Sen. Judiciary Comm., February 28, 2001, Attach. 6; Minutes, House Judiciary Comm., March 19, 2001. (Emphasis added.)” 278 Kan. at 655.
We further acknowledged in Denney that the legislature “passed the KBI’s recommendation in the form of K.S.A. 2003 Supp. 21-2512, except it eliminated second-degree murder (KS.A. 2003 Supp. 21-3402) from the KBI’s proposal. . . [and it] became law.” (Emphasis added.) 278 Kan. at 655. Per subsection (a) of K.S.A. 21-2512, postconviction DNA testing for murder was expressly limited by the legislature to “conviction for murder as defined by K.S.A. 21-3401.” And only murder in the first degree is defined by 21-3401.
If we are to be consistent and follow the Marsh majority’s rationale and its nullification of the death penalty statute, then we must also nullify the postconviction DNA testing statute. Directly analogous to Marsh, here the legislature rejected the attorney general’s particular recommendation to provide testing for all murder convictions. While the legislature affirmatively authorized testing via statutory change, it pointedly included only convictions for first-degree murder—as expressly defined by statute. That narrow cat-egoiy necessarily excluded all second-degree murder convictions. Given this clear expression of legislative intent to confine the statutory protections to first-degree murder, and given that our “task *17is to discern what course the legislature would have chosen to follow if it had foreseen our conclusions as to underinclusiveness” for second-degree murder, then the statute must be nullified, not rewritten. State v. Denney, 278 Kan. at 657; see Limon, 280 Kan. at 304 (when the judicial alteration of a statute would be contrary to legislative intent, courts instead “must nullify the statute”).
I acknowledge that in Denney we decided not to nullify the unconstitutional statute—K.S.A. 21-2512—that, among other tilings, authorized DNA testing for those convicted of rape. Rather, we chose to extend its protection to include Denney’s situation, i.e., one convicted of aggravated criminal sodomy for penetrating his victims’ anuses with his penis. But Denney is different from Marsh, and by extension Cheeks, because the legislature simply had not even addressed, much less rejected, protection for Denney’s situation. By contrast, the legislature had addressed, and rejected, Cheeks’ situation.
I wrote the opinion for the court in Denney. But I cannot join the present majority in extending Denney to situations where the legislature has expressed a clear contrary intent.
[[Image here]]