Topic Study: Connecticut Dept. of Public Safety -v- Doe, et al

Court Decision 3-5-2003: Connecticut Dep't. of Public Safety -v- Doe (01-1231)
[Official Supreme Court PDF Version]
Opinion & Notes: The court's opinion (in gold): "The Second Circuit’s judgment must be reversed because due process does not require the opportunity to prove a fact that is not material to the State’s statutory scheme. Mere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty interest. Paul v. Davis, 424 U.S. 693. But even assuming, arguendo, that respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact–that he is not currently dangerous–that is not material under the statute. Cf., e.g., Wisconsin v. Constantineau, 400 U.S. 433."

It is critical to note why the justices felt "No Hearing Is Required Before Inclusion in the Connecticut Registry," and we quote: “ ‘The registry is based on the legislature’s decision to facilitate access to publicly-available information about persons convicted of sexual offenses. [DPS] has not considered or assessed the specific risk of reoffense with regard to any individual prior to his or her inclusion within this registry, and has made no determination that any individual included in the registry is currently dangerous. Individuals included within the registry are included solely by virtue of their conviction record and state law. The main purpose of providing this data on the Internet is to make the information more easily available and accessible, not to warn about any specific individual.’ ” 271 F.3d, at 44."

Connecticut is unique regarding purpose of registry and dangerousness, other states have legislatively declared offenders as CURRENTLY, and FOREVER DANGEROUS, see Michigan Sex Offender Registry law, wherein it states: "... The legislature has determined that a person who has been convicted of committing an offense covered by this act poses a potential serious menace and danger to the health, safety, morals, and welfare of the people, and particularly the children, of this state. ..." Such creates a "Bill of Pains and Penalties" (a constitutional violation).

Further, legislators and public speakers regularly and openly tout through the media, that "sex offenders are dangerous." Such declarations of dangerousness, publically spoken, are libelous per se, (libel was raised by Justices Souter & Ginsberg in their separate concurring opinion), and when spoken by a legislator, shows the real reason behind his/her vote, as to sex offender legislation, in the legislature (further punishment, not what the courts have held -remedial-).

"As the DPS Website explains, the law’s requirements turn on an offender’s conviction alone–a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. Unless respondent can show that the substantive rule of law is defective (by conflicting with the Constitution), any hearing on current dangerousness is a bootless exercise."

NOTE: Sex offender registries are legislatively based upon A) the conviction; and, B) the legislative finding of a high recidivism rate, accordingly the legislature feels it has a duty to advise the public.

It would be interesting to learn, why someone convicted of selling "crack-cocaine" to elementary school kids isn't a danger, or why someone with a felony DUI conviction (which requires multiple convictions) is not likely to re-offend, or why folks have no right to know that a stockbroker was convicted of securities fraud before asking his advice on the stock market.

Further, why a parent has no right to know a child-killer lives across the street, but does have the right to know that a peeping-tom lives down the block. Is it a question of dangerous, or selective persecution! Are the equal protection clauses, substantive constitutional rights?

"Respondent expressly disavows any reliance on the substantive component of the Fourteenth Amendment’s protections, and maintains that his challenge is strictly a procedural one. But States are not barred by principles of “procedural due process” from drawing such classifications. Michael H. v. Gerald D., 491 U.S. 110, 120 (plurality opinion). Such claims “must ultimately be analyzed” in terms of substantive due process. Id., at 121. Because the question is not properly before the Court, it expresses no opinion as to whether the State’s law violates substantive due process principles. Pp. 4—6."

------------------------------------------------------------------------------- The lawyers presented that case as a "Procedural due process claim." i.e., that before being listed (including the dangerous label) a hearing is required. They contested "Procedure!" The lawyers DID NOT CLAIM, for example, that, the persons (sex offenders) should not be listed at all because it violates some other well know constitutional right. For the moment, such a claim may not exist, we don't say it does exist!

Black's law explains the differences as:
Procedural due process: The guarantee of procedural fairness which flows from both the 5th. and 14th. Amendments due process clauses of the Constitution. For the guarantees of procedural due process to apply, it must first be shown that a deprivation of a significant life, liberty, or property interest has occurred.

Substantive due process: Doctrine that due process clauses of the 5th. and 14th. Amendments require legislation to be fair and reasonable in content as well as application. Such may be broadly defined as the constitutional guarantee that no person shall be arbitrarily deprived of his life, liberty or property. The essence of substantive due process is protection from arbitrary and unreasonable action.

If the majority opinion mentioned this distinction, as did 3 of the individual opinions, obviously the justices see possible substantive due process claims, which the lawyers did not raise. Clearly the justices left open, for another case, this avenue. The court stated, "Because the question is not properly before the Court, it expresses no opinion as to whether the State’s law violates substantive due process principles."

"... the State's law ...," even though this was a Conneticut case it must be remembered that, many States filed briefs citing their versions of Megan's laws, and it could be that the court noticed substantive claims in more than one of the State laws. It is the lawyers job to frame the question before the court, not the courts' job, hence their comment!

Accordingly, are registrants "arbitrarily deprived of life, liberty or property" as the result of being legislatively forced to registered as a sex offender, and the resulting consequences of that registry and community notifications? Please review Societal Issues which shows what is currently happening to registrants and see if you can say, if any are substantive life, liberty or property deprivations.

Further, referencing our "Emerging Law: No Sex Offender Zones" some offenders (often juveniles) are forced to live AWAY FROM THEIR FAMILIES, and others, MUST MOVE OUT OF -OR- SELL THEIR HOMES in order to comply with those sex offender (only) residence laws. Constitutional issues (contracts/mortgages)? Its hard to believe that lawyers failed to raise any of this...

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Justices Souter and Ginsburg, concurring, wrote separately:
"I (they) join the Court’s opinion and agree with the observation that today’s holding does not foreclose a claim that Connecticut’s dissemination of registry information is actionable on a substantive due process principle. To the extent that libel might be at least a component of such a claim, our reference to Connecticut’s disclaimer, ante, at 3, would not stand in the way of a substantive due process plaintiff. I write separately only to note that a substantive due process claim may not be the only one still open to a test by those in the respondents’ situation."

Connecticut allows certain sex offenders the possibility of avoiding the registration and reporting obligations of the statute. ... The State thus recognizes that some offenders within the sweep of the publication requirement are not dangerous to others in any way justifying special publicity on the Internet, and the legislature made courts responsible for granting exemptions. The line drawn by the legislature between offenders who are sensibly considered eligible to seek discretionary relief from the courts and those who are not is, like all legislative choices affecting individual rights, open to challenge under the Equal Protection Clause. The refusal to allow even the possibility of relief to, say, a 19-year-old who has consensual intercourse with a minor aged 16 is therefore a reviewable legislative determination.

The exemptions from registration provisions, and community notification, found in Connecticut are unusual most states blanket every single offender and every single circumstance. Obviously there is room for newer challenges.

Cases with the right circumstances are not foreclosed from appropriate relief by this decision. This is not the final say on these issues, there will be a line of cases. New case and new lawyers, who knows what could happen!

"Within the appeal, Johnson claimed the court improperly admitted evidence of acts of uncharged prior misconduct. Johnson also claimed his rights were violated by requiring him to register as a sex offender without a hearing to ascertain his dangerousness, according to the judgment."

The decision regarding the sex offender registration was controlled by the recent opinion by the U.S. Supreme Court in which the state’s sex offender registry requirement does not violate procedural due process, according to the appellate judge’s opinion.

Case 1: Connecticut Dept. of Public Safety -v- Doe, et al

• US Supreme Court (Case No. 01-1231). The subject was Internet Registries. ORAL ARGUMENT was 11-13-2002. Their decision was March 6, 2003.
  
  
  • Question Presented: Whether the Due Process Clause of the Fourteenth Amendment prevents a State from listing convicted sex offenders in a publicly disseminated registry without first affording such offenders individualized hearings on their current dangerousness.

  • Prior Lower Court Decisions:
  • ..... U.S. District Court, Dist of Connecticut (3:99cv0314(RNC), Order: March 31, 2001
  • ..... U.S. Court of Appeals - 2nd. Circuit (01-7561), Opinion: October 19, 2001
  • ..... U.S. Court of Appeals - 2nd. Circuit (01-7561), Errata Filed: November 6, 2001
  • ..... United States Supreme Court, Cert Granted: May 20, 2002
    
  • Resources:
  • ..... Docket Sheet from U.S. Supreme Court
  • Briefs Filed:
  • ..... Petitioner (State):
  • ..... Amicus for Petitioner:
  • ..... United States (Petition) [PDF File] [Text File]
  • ..... United States [PDF File] [Text File]
    
    
  • In the briefs filed, "statistics" & "documents" have been
    submitted as evidence, direct links are provided when available.
  • US Dep't of Justice, Bureau of Justice Statistics (Mentioned in Briefs):
  • ..... Child Victimizers: Violent Offenders & Their Victims (1996):[Text leading to PDF File]
  • ..... Criminal Victimization in the US, 1999 Statistical Tables (2001):[PDF File]
  • ..... Recidivism of Prisoners Released in 1983 (1997)[Text leading to PDF File]
  • ..... Recidivism of Prisoners Released in 1994 (2002)[Text leading to PDF File]
  • ..... Sex Offenses and Offenders (1997):[PDF File]
  • ..... Sexual Assault of Young Children as Reported to Law Enforcement (2000):[Text Leading to PDF File]
  • US Dep't of Justice, Federal Bureau of Investigation:
  • ..... FBI Main Website (where reports for different years are available):[FBI Home Page]
  • ..... Uniform Crime Reports (1999):[PDF File]
  • US Sentencing Commission, Report to Congress:
  • ..... Sex Offenses Against Children (June 1996):[Text leading to PDF File]
  • J.Briere & M.Runtz, Childhood Sexual Abuse:
  • ..... Long-term Sequelae & Implications for Psychological Assessment,
    J. of Interpersonal Violence 312-330 (Sept. 1993).