Connecticut Dept. of Public Safety v. John Doe, et al. (03/05/2003)

Questions presented: Did the 2nd Circuit erroneously conclude, contrary to other courts of appeals and in a manner inconsistent with Paul v. Davis, that Connecticut's sex offender registration law implicates an offender's liberty interest by listing offenders in an undifferentiated registry and denies due process by failing to afford the offender a hearing regarding his "current dangerousness" before publishing true and accurate information about him and his conviction history?

BY DANIEL SCHACK, MEDILL NEWS SERVICE

Megan Kanka, a 7-year-old girl living outside Trenton, New Jersey, was raped and strangled by a twice-convicted sex offender after he moved across the street without her parents knowledge.

Since that day in 1994, every state has passed a version of Megans law to let residents know about neighbors who committed certain crimes.

On Jan. 1, 1999, the Connecticut Department of Public Safety began publishing an online database of the names, addresses and photographs of people who served prison sentences for certain crimes. "The Web Page of the Damned," as one local columnist called it, ultimately listed 2,075 registrants convicted since 1981. For the few months that the site was available, it was viewed about as often as the states employee telephone directory, with about 1,241 page views per day that April. It could be reached through the web sites of several television stations, as well as through the official home page of the State of Connecticut.

Like about 20 other states, Connecticut did not label any registrant as more dangerous than another.

Less than two months after the site was launched, a man from Norwalk, Conn., sued the department to have his name removed so his daughter wouldnt learn about his conviction for first-degree sexual assault against a person over 60. U.S. District Judge Robert Chatigny dismissed the suit but proposed that the department include a disclaimer on the site, which read in part: "The Department ... has made no determination that any individual included in the registry is currently dangerous."

A different man, not satisfied with the disclaimer, filed suit in federal court, using the pseudonym John Doe to retain his anonymity, claiming that the law violated his 14th Amendment right to due process. The same federal judge agreed. In so finding, Chatigny quoted from a Supreme Judicial Court opinion from neighboring Massachusetts that criticized its states sex offender statute for being "a continuing, intrusive, and humiliating regulation that is in principle quite alien to our traditions which when generalized has been the hallmark of totalitarian government."

But the judge also sided with the department in ruling that its actions did not constitute an ex post facto law in violation of article I, 10 of the Constitution. Doe had argued that the law subjected him to punishment for conduct that preceded the date on which the law took effect.

Shortly thereafter, the department shut down the site and it has remained down ever since. The site at http://www.state.ct.us/dps/Sor.htm reads:

"Pursuant to the May 18, 2001 ruling by United States District Court Judge Robert N. Chatigny in the matter of John Doe v. Dr. Henry C. Lee, et al., Case No. 3:99CV0314, Internet and public access to sex offender registration information has been restricted and will not be available from the State of Connecticut Department of Public Safety. Please be advised that this ruling does not affect the registration obligations of any covered individual subject to Connecticut General Statutes Sections 54-250 et seq."

Both sides appealed. On Oct. 19, 2001, a unanimous 2nd Circuit Court of Appeals panel affirmed, along the same lines of reasoning as the district judge.

"I don't understand why the Connecticut legislature didnt fix the system after the District Court ruling," said Philip Tegeler, legal director of the states ACLU branch., who represents Doe. "These systems have been effective in states that provide due process and individualized hearings."

To find that Does due process rights were violated, he had to be deprived of a "liberty interest" as defined by the stigma plus test in the Supreme Court's 1976 opinion in Paul v. Davis. The government had to not only give him a negative reputation that he could possibly prove false, but also alter his status under the law.

Requiring most registrants to confirm their address every year for 10 years, and some every 90 days for the rest of their lives, or face up to 5 years in jail was one of the "extensive and onerous" duties that changed their legal status, according to the appeals court.

The Connecticut attorney general hoped the U.S. Supreme Court would see his states law differently.

"Public access to the sex offender registry is essential to public safety allowing parents, teachers, school administrators, and others to make informed decisions protecting their children and families," Attorney General Richard Blumenthal said in press release Feb. 19, 2002, the day he petitioned the Supreme Court to hear the case.

He is defending Connecticuts law, claiming that Megans Laws are necessary when released rapists are 10.5 times more likely to be rearrested for the same crime than other released prisoners, and even more likely when theyve committed sex offenses against children.

On May 20, 2002, the U.S. Supreme Court granted certiorari in the case, making it the second time in a month that the Court agreed to review the constitutionality of a state's sex offender registration law. The earlier case, Otte v. Doe, challenged Alaska's law. Both were set for oral argument on Nov. 13, 2002.

The White House supports the states case, arguing in a friend-of-the-court brief that the states are allowed under the federal Megans Law guidelines which tie state funding to enactment of their own statutes to not hold hearings and distinguish among registrants because the process is "costly, cumbersome and inaccurate.""

Attorneys: For CT Dept. of Public Safety, et al.:Richard Blumenthal55 Elm StreetP.O. Box 120Hartford, CT 06141-0120860-808-5020For John Doe, Samuel Poe, et al.:Philip D. TegelerConnecticut Civil Liberties Union32 Grand StreetHartford, CT 06106Shelley R. SadinZeldes, Needle & Cooper, P.C.1000 Lafayette Blvd.Bridgeport, CT 06604203-333-9441Other Attorneys: For District of Columbia, et al.:Edward E. SchwabOffice of Corporation Counsel441 Fourth Street, NW, 16FLWashington, DC 20001-2714202-727-6252For U.S (supporting CT Dept. of Public Safety).:Theodore B. OlsonSolicitor General, Counsel of RecordRobert D. McCallum, Jr.Assistant Attorney GeneralPaul D. ClementDeputy Solicitor GeneralGregory G. GarreAssistant to the Solicitor GeneralLeonard SchaitmanMark W. Pennak