Arthur Cutshall, Plaintiff-Appellee/cross-Appellant v. Don Sundquist, Govenor of the State of Tennessee, Defendant-Appellant/cross-Appellee

CUTSHALL, Plaintiff- Arthur Cross-Appellant,

Appellee, SUNDQUIST,

Don Govenor Tennessee, Defendant-

State

Appellant, Cross-Appellee. 97-6276,

Nos. 97-6321. Appeals,

United States Court of

Sixth Circuit.

Argued Nov. 1998.

Decided Oct.

We are asked to decide whether the Act Constitution, violates United States specifically, Jeopardy, the Double Ex Post Facto, Attainder, Process, Bill of Due Clauses; Equal Protection Eighth Amendment; right constitutional interstate; travel and the constitutional right privacy. We must also decide III (argued Albert L. Partee and whether plaintiffs violates the briefed), THE OFFICE OF ATTORNEY right to privacy under the Tennessee state GENERAL, DI- CRIMINAL JUSTICE part constitution. will reverse in We. VISION, Nashville, Tennessee, Appel- affirm in part. lant. briefed), Gregory (argued Mitchell and I. DORAMUS, NEY, TRAUGER & Nash- enacted, In ville, Tennessee, Congress and the Appellee. for law, signed President into the Jacob Wet- JONES, RYAN, Before: and terling Crimes Against Children and Sexu- BATCHELDER, Judges. Circuit ally Violent Registration Offfender Pro- gram. § 42 U.S.C. 14071. Under this RYAN, J., opinion delivered the legislation, Attorney General court, BATCHELDER, J., joined. in which required United States was to establish 483-85), JONES, (pp. J. delivered guidelines programs requiring for state separate opinion. dissenting persons against convicted of crimes minors or crimes of sexual violence to register a OPINION current address with state law enforce- 14071(a)(1)(A). § ment officials. U.S.C. RYAN, Judge. Circuit provides: The federal law Cutshall, plaintiff, Arthur chal- The information collected under a State lenges constitutionality of the Tennes- registration program shall be as treated Registration see Sex Offender and Moni- - private except data that— toring §§ Act. Tenn.Code 40-39-101 to requires The Act sex offend- (1) may such information be dis- register agen- ers to with law enforcement agencies closed to law enforcement for cies, and allows law enforcement officials purposes; law enforcement registry to release information when nec- (2) may such information be dis- essary protect public. Cutshall is government agencies closed to con- subject the Act because of a 1990 Ten- ducting background confidential nessee conviction for sexual aggravated checks; and battery. challenges registra- He both the (3) aspects tion and the designated notification of the law. law en- State While the agency any district court concluded that the forcement and local law registration provision of the Act does not agency by enforcement authorized Constitution, violate may the United States relevant in- agency State release with agreed necessary protect Cutshall that release of that is formation registry information would con- public concerning specific per- violate his rights stitutional unless notice given register he is son under section, an opportunity except identity to be heard. There- that the of a fore, granted summary requires reg- the court victim an offense that judgment part in part for the defendant and for istration under this section shall not plaintiff. appealed. Both sides be released. 14071(d) (1994) (5) (emphasis § super- For a sexual U.S.C. offender on added). law, release, name, address, Under the federal the states vised September telephone from given years registrant’s pa- were three number of the officer, officer, comply. probation within which to role or other 14071(f)(1)(1994). im- person responsible § Failure to registrant’s U.S.C. plement registration program supervision; would re- funding. sult in the of some federal loss (6) Sexual offense offenses of 14071(f)(2)(A)(1994). § See 42 U.S.C. convicted; registrant which the has been (7) place Current and length of em- Congress amended the federal law in ployment; provide registry 1996 to informa- (8) length Current address and of res- may any permissible tion be disclosed for address; idence at such purpose, state law and that information (9) necessary pro- shall released when registration Such other and/or Further, public. tect monitoring the reference may information as be re- indicating quired promulgated by was TBI rules private considered was removed. See provisions accordance with the 14071(d) (amended 1996). § Act, U.S.C. Uniform Administrative Procedures compiled chapter in title legislature Tennessee § 40-39-103 TenN.Code adopted its own Sexual Registra- Offender The Act provided also for the mainte- Monitoring § tion and Act. Tenn.Code 40- nance of a registry and for the release of 39-101 to -108. Although the Act has registry information: inception been amended since the of this ( n ) lawsuit, provided the 1994 Using enactment information received or col- registration with the pursuant Tennessee Bureau of lected chapter, to this the TBI (TBI) Investigation establish, maintain, as follows: shall update and a system centralized record of sexual of- (10) days Within ten following release registration fender and verification in- probation, parole, on any or other alter- formation. The TBI shall promptly re- (10) incarceration; native to within ten port current sexual registration offender days following discharge from incarcera- and verification information to: (10) supervision; tion without within ten (1) The local agency law enforcement days residence; following any change of residence; for the place offender’s of (10) and within ten days after coming (2) The local law enforcement agency municipality into a or county which previous for the place offender’s of resi- the sexual offender temporarily resides if dence a change residence is indicat- time; or is domiciled for such length of ed; each sexual offender complete shall a (3)

TBI sexual offender The local registration/moni- law enforcement agency toring form and shall for the place cause such form to offender’s of employment; be delivered to TBI headquarters (4) The local law agency enforcement Nashville. Sexual registra- offender previous place for the offender’s of em- tion/monitoring require forms shall dis- ployment if change employment a following closure of the information: indicated; (5) applicable, probation When of- (1) Complete any name as as well ficer, officer, parole public or other offi-

alias; employee cer or assigned responsibility (2) birth; place Date and release; supervised for the offender’s (3) number; security Social and ( n ) (4) State of issuance and identification The identification division of the license; number of valid driver federal bureau investigation.

(b) TBI, injuries Upon request alleges a local stem from the probation potential offi- agency, by law enforcement misuse of officer, cer, public, or other officer and be parole cannot traced to the responsibility for employee assigned or state. release, supervised offender’s shall agree. We do not investigation apprehen- in the and assist The irreducible constitutional mini- suspected sion of a sexual offender standing mum of require- contains three violating provisions chapter. of this First, foremost, ments. there must (c) Except provided otherwise as (and alleged ultimately proven) an (a) (b), information re- subsections injury in fact—a harm suffered ported registra- sexual offender on plaintiff that is concrete and actual or forms, tion/monitoring verification/moni- imminent, conjectural hypotheti- or forms, toring and acknowledgment Second, cal. there must be causation —a confidential; provided, forms shall be fairly traceable connection between TBI local law enforcement plaintiffs injury complained-of and the agency may release relevant informa- third, conduct of the defendant. And necessary protect tion deemed there must be redressability likeli- —a public concerning specific sexual of- hood that the requested relief will re- register pur- who is fender dress the alleged injury. This triad of chapter. suant fact, causation, injury in and redressabil- (1994) § (emphasis 40-39-106

Tenn.Code. ity comprises the core of Article Ill’s added). case-or-controversy requirement, party jurisdiction invoking federal II. bears the of establishing burden its exis- grant We review district court’s tence. summary judgment de novo. See North Company Steel a Citizens Better for east Ohio Coalition the Homeless for Env’t, 83, 118 1003, 1016-17, (6th Cleveland, City 105 F.3d (1998) (internal quotation 140 L.Ed.2d — Cir.), denied, —, cert. U.S. omitted.) marks, citations, and footnote 335, 139 L.Ed.2d 260 element, Beginning with the third clear, parties dispute, is and the do not III. sought that the relief will redress Cuts- A. injuries. alleged hall’s Should this court claims, agree with we have the Cutshall’s par- Before we reach the merits of the power to that grant prevent relief would arguments, we the ties’ must address disclosing registry the state from his infor state’s contention that the district court entirely, eliminating mation his al thus jurisdiction. subject-matter lacked Ten- leged injury. that, nessee claims as to the notificátion Act, element, provision Turning of the there is no or to the Cutshall case second controversy required by as III of that al- Article has also satisfied this court the injuries Specifical- leged the United States Constitution. are traceable to the state of ly, satisfy the state To requirement, claims that Cutshall has failed Tennessee. this claim, allege any only imminent threat of harm not have a Cutshall need valid arguable because there is no evidence that the state an one. absence of a valid “[T]he (as likely regis- opposed arguable) to disclose his sex offender cause of action jurisdic- try public. Relatedly, implicate subject-matter information to does not argued, that at 1010. has argues state Cutshall lacks stand- tion.” Id. Cutshall alia, claim that in- ing injury releasing registry because his is mere inter an speculation. Finally, operates impermissible the state claims that formation as the Tennessee argues legis- Because it is tion. He that imposition punishment. enacting the law purpose lature’s was to controls release the state that injuries punish offenders and that information, alleged are caus- convicted sex effectively the Act does so. the state’s conduct. We ally connected to matter, that as a threshold agree, need not First, that points out in dis- Cutshall punishment. For Arti- imposes the Act Act, cussing the some members of the only III we need determine purposes, cle legislature Tennessee made comments in- arguable that has an claim of Cutshall Act dicating purpose that was to think injuries to the state. We traceable punish and sex offenders and to deter a claim. just he has such discourage residing in them from Tennes- requires for standing The first element lifelong argues see. Cutshall moni- fact, injury the state claims that Moreover, toring punishment. ais form of any clear indication that Cutshall’s without argues, placement he of the Act in the is about to be re registry information indicates pu- Tennessee Criminal Code its leased, injury. no he has suffered such requir- nitive claims that nature. Cutshall However, is written in such a the statute register all ing peri- sex offenders registry manner that the release of infor years arbitrary, capricious, of 10 od place any mation time law can take excessive, indicating legis- further officials have determined enforcement lation regulatory is not a valid remedial necessary protect public. release is measure. claims that the Ten- Cutshall Therefore, we think Cutshall has satisfied Act in legislature passed nessee order well. it other requirement as Were punish, intent and that this should end wise, offender a convicted sex would inquiry. until after registry to wait his Second, argues the Act challenging information is released before punitive has effects. He claims the Act status as Act. Cutshall’s a convicted disability an imposes affirmative on all sex registered sex with offender accordance they must continually offenders because an injury results in be arguably update their and re- specific being cause threat of he faces spond to for information from requests subject of registry to the release informa TBI penalty under of law. tion every day. Cutshall’s claims are more argues Cutshall also release of general complaints than about the conduct punish- imposes a government. City of the Tennessee See public He ment. claims that disclosure 95, 112, 103

Los 461 Angeles Lyons, U.S. alleged does not purpose serve the state’s (1983). 1660, S.Ct. 675 75 L.Ed.2d of aiding According law enforcement. Therefore, conclude Cutshall met has Cutshall, public subjects disclosure sex of- standing requirements minimum ridicule, stigmatization, fenders to satisfy Article III of the Constitution. shaming harassment. He that the submits public traditionally effect of has disclosure B. punishment. been viewed as constitutionality We turn now to Tennessee, on the state of other the Act. hand, promul- legislature claims gated law in Act to assist enforcement solving help pro- crimes and to a. Moreover, tect itself. the state claims in response Tennessee the law argues punishes passed offense, him Congress in an act of States twice for the same violation the United Fifth which states to Jeopardy Double Clause of the several estab- registries lish sex or lose certain Amendment to the United States Constitu- offender

473 The state submits that In funding. evaluating federal part second operate punish regis- the Act does not this analysis, the Court counseled in favor it in way previously trants because no seeks to limit of the factors in articulated actions, Mendoza-Martinez, Kennedy v. registering their little requires 372 U.S. 144, 554, (1963): and inconvenience. effort 83 9 S.Ct. L.Ed.2d 644 (1) wjhether [ the sanction involves an b. (2) restraint, affirmative disability or [ ] historically whether has regard- been Jeopardy The Double Clause of the [(3)] punishment, ed as a whether it in provides Fifth Amendment relevant play only comes into on a finding of part, any person subject “nor shall for (4) scienter, operation [ ] whether its will in put jeopar the same offence to be twice promote punish- traditional aims of of life or dy limb.” U.S. Const. amend. V. (5) deterrence, ment —retribution and [ ] applies The Fifth Amendment to the states whether the behavior to which it applies through the Fourteenth Amendment. (6) crime, already is [ ] whether an Maryland, Benton v. 784, 794-95, 395 U.S. purpose may to which it ra- .alternative (1969). 2056, 89 S.Ct. 23 L.Ed.2d 707 it, tionally be connected assignable [Tjhe Jeopardy Double Clause does not (7) appears [and ] whether it excessive prohibit imposition additional relation to the purpose alternative as- could, parlance, sanction that in common signed note, .... important [It punishment. be described as however, that] these factors must be protects only against imposi- Clause considered in relation to the statute on criminal multiple punishments tion of its face. offense, for the same only and then when such 168-69, (internal occurs successive proceed- Id. 83 quota- S.Ct. 554 ings. marks, citations, tion and footnotes omit- ted). States, Hudson United 93, 522 U.S. 118 (1997) (some 488, emphasis S.Ct. 493 add- Hudson, In Court retreat (internal

ed) quotation marks and citations its decision United ed somewhat from omitted). States v. Halper, 490 U.S. 1892, 104 (1989), L.Ed.2d abrogated by Hudson, the most recent Su States, Hudson v. United preme Court decision addressing whether L.Ed.2d favor of its statutory imposes punishment scheme Ward, decision United States v. earlier jeopardy purposes, for double the Court U.S. 65 L.Ed.2d two-part inquiry: advanced a According to the Hudson A court must first ask legis- whether the Court, Halper improperly skipped the first lature, in establishing penalizing step analysis, in the and focused on wheth mechanism, expressly indicated either or er the sanction grossly dispropor was so impliedly preference a for one label or tionate to the harm caused so as to consti other. the Even those cases where punishment. Hudson, tute 118 at legislature the has indicated an intention Also, Halper recognize failed to to establish a civil in- penalty, we have penalties all civil serve as a deterrent. quired statutory further whether the Halper, id. In backing away from punitive pur- scheme was so either in Court voiced a concern “about the wide pose or effect ... as to what transform] variety jeopardy of novel double claims clearly remedy was intended as a civil spawned Halper,” including in the wake of penalty. into a criminal Cir.1997), Verniero, (3d E.B. 119 F.3d 1077 (internal denied, Id. (1998), rt. quotation marks and citations 118 S.Ct. 1039 a ce omitted). Jersey’s sex offender challenge New 474 did legislature jeop- further indication of double as violative law

registration In punitive. Act to be for the Hudson, 493 & n. 4. not-intend at 118 S.Ct. ardy. the Ten- sum, indication that we find no c. Act to a intended the legislature nessee punitive measure. the Act’s by examining begin We evident punitive purpose amended since Finding Act has been no purpose. The lawsuit, Act, we are re- language but as enact of the of this from the inception whether, express statement of to-determine ed, quired no nevertheless it contained effect, punitive 40 in the placed title the Act is Although it is in its purpose. Code, registrant devoted punishes the section it twice sense- that of the Tennessee examining within In its location offense. procedure, for the same to criminal law, not necessar articulated laws the factors procedure does effects criminal part Kennedy, on the 372 Supreme intent Court ily indicate an L.Ed.2d we sex punish U.S. 83 S.Ct. legislature .offenders. earlier, guide- repeatedly approved “provide of useful has discussed Supreme Court Hudson, prosecutions, at 493. How- after criminal posts.” civil forfeitures ever, forfei authorizing must be considered the statute these factors even when face, “only statute as the and in the same of the statute on its light ture is located See, e.g., United States will suffice to override proof criminal offense. the clearest Firearms, has and transform what Assortment intent legislative One of remedy 79 L.Ed.2d 361 a civil into denominated U.S. been (internal quotation location of Tennes Id. penalty.” think the criminal We omitted). not us in law does assist citation see’s sex offender marks and Act was intended whether the determining factor, an affirmative Kennedy The first punishment. to serve as restraint, disability “is some sanction statute, punishment infamous approaching the purpose of the examining In F.3d Billy, Herbert v. imprisonment.” As language. to its primarily look (6th Cir.1998) (internal quota enacted, sec- six substantive it contained omitted). In citations tion marks and tions, registry the content of dealing with Hudson, concluded Court information, infor- registry verification forms, the bank debarment from mation, rec- that indefinite registry formalities affirmative in- did not rise to an ing industry reporting and keeping ord Hudson, 118 S.Ct. disability or restraint. formation, from the potential for removal Herbert, court, in concluded 496. This violating penalties registry, driving suspension for Noticeably that driver’s license ab- registration requirements. impose an af influence did not an under the statutory indica- sent in this scheme Herbert, 160 F.3d at disability. for the firmative intended legislature tion that the . Act does Similarly, the Tennessee pur- 1137 regulatory to have other than Act re disability or impose an affirmative them- pose. reporting provisions fact, on imposed the burdens supply straint. merely require registrants selves than those information; are less onerous imposed sex offenders the burdens basic Herbert, loss minor, imposed Hudson only completion involving are driver’s license. and loss of language of livelihood forms. The appropriate notify the TBI where only need part of Cutshall an intent on evidences works, lives, other basic where he the whereabouts he to monitor legislature chooses, he Moreover, free to live where the data. He is offenders. of convicted sex any pleases, and seek go as he agencies to come authority law enforcement of the Neither are he wishes. employment limited to information is registry disclose tantamount provisions public notification necessary disclosure situations which Act, law en- This, think, imprisonment. Under to protect public. may registry try forcement officials disclose did not come play “only” upon into a protect necessary information when finding scienter where the applied law public. imposes This no restraint whatev- to “any person ‘who violates’ upon registrant. statutes, er the activities of a underlying banking without re gard to the violator’s state of mind.” Kennedy The second factor asks wheth- Hudson, 496. The Court did er, perspective, from a historical the sanc- not specifically examine the state of mind punishment. tion has been viewed as His- requirements of underlying banking torically, punishment has taken the forms statute's, and instead looked to the debar incarceration, incapacitation, and reha- ment statute “on its face.” Id. Similar to Nothing bilitation. in the Tennessee Act Hudson, the debarment statute the Ten imposes restrictions on the conduct of sex applies persons nessee Act convicted of offenders that are akin to incarceration or any one of the sex offenses listed in the incapacitation; reg- nor does the Act force statute, inquiry without into the offender’s way to conform their actions in the istrants Although state of mind. it is not clear that Act might. rehabilitative efforts The we are to examine the state of keeps law enforcement officials informed mind requirements underlying sexu offenders, of the location of convicted sex offenses, al an examination of the offenses and, necessary, when can be leads to the same conclusion. Some of the pose partic- notified of sex offenders a who clearly listed offenses do not specify a ular risk. The focus of the Act is not on See, culpable mens rea. e.g., Tenn.Code offender, conduct of circumscribing the § (statutory rape). 39-13-506 The Ten protection public. but on the specifies, nessee Code and Tennessee provides Act for the collection and dissemi- held, courts have “when statute information; nation of Cutshall has not rea, mens specific omits to a reference but cited, found, any and we have not evidence with a mens rea plainly dispense does not that dissemination of information has his- ‘intent,’ requirement, proof then ‘knowl torically punishment. been considered We edge,’ or ‘recklessness’ suffice to es will shaming pun- are mindful of the fact that mental state.” State v. culpable tablish a ishments, pillory, such as banishment and Hill, (cit (Tenn.1997) 954 S.W.2d historically punish have been used to crim- 39-11-301(e)). Thus, § ing Tenn.Code However, practices these involved inals. view of the Act language and the more than the mere dissemination of infor- offenses, underlying relevant we conclude Moreover, possibility mation. aof play “only” that the Act does not come into effect shaming from disclosure of finding on a of scienter. certainly information is not clearest of proof necessary legislative overcome Kennedy factor, examining the fourth regulatory intent that the Act serve and it pro is clear that the will serve to punitive purposes. Dissemination of Certainly, mote deterrence. once a sex fundamentally information is different offender has informed the local law en punishment, from traditional forms of agency place forcement of his address we conclude that it has not been as viewed employment, knowing that law enforce punishment perspective. from a-historical ment officials have that information will However,

The third requires likely operate factor we consid- as a deterrent. Hudson, triggered only upon Supreme er whether the Act is Court in cautioned: finding presence of scienter. “The term ‘scienter’ “To hold that the mere of a de ‘knowingly’ signify purpose means and is used to terrent renders sanctions ’ Herbert, guilty knowledge.” jeopardy purposes defendant’s ‘criminal for double at 1137-38. severely F.3d Court would undermine the Govern concluded, Hudson, ability engage regu the law autho- ment’s effective Hudson, rizing banking debarment from the indus- lation....” 118 S.Ct. at 496. has alerted us The state Tennessee factor is not dis- of this Thus, satisfaction adopted by the purpose the statement in weigh it Cutshall’s does positive, but legislature in after the Tennessee favor. litigation. commencement this factor asks whether Kennedy fifth The (1997). § It is not 40-39-101 Tenn.Code applies is the statute to which the behavior was a impossible purpose that this clause ap unarguably The Act already a crime. legislature’s clarify effort to the post hoc offenders. only to convicted sex plies As, enacting original the statute. intent Herbert, an Ohio law this court addressed result, disregard purpose we will suspension driving for authorizing license entirely. statement sanction, influence, imposed the under Examining light of each of the statute prosecution for drunk to criminal addition factors, that the Kennedy we conclude the the recognized The court driving. prohibition against not Act does violate intertwine[d] ... “statutory scheme jeopardy. double for suspension with the arrest license that this driving,” but concluded drunken suspension to find license

was insufficient purposes. jeopardy double punitive for argues that the Act Cutshall also Herbert, al Similarly, 160 F.3d 1138 . Ex Post Facto Clause of the violates the and notification though registration provides: The clause federal Constitution. the offend are intertwined with provisions ... pass any post ex “No state shall conviction, they impose no underlying er’s I, § art. cl. 1. facto Law.” U.S. Const. penalty akin to revocation additional prohibi post the ex “To fall within facto decline to license or loss livelihood. We tion, retrospective a law must be —that transform requirements hold that these occurring its ápply it must to events before regulatory to one Act from one that is disadvantage it enactment —and must punitive. by by altering the defi offender affected Kennedy final two factors under the increasing criminal nition of conduct us to decide whether analysis require Lynce crime.” punishment the Act purpose a remedial behind 433, 441, there is Mathis, 519 U.S. so, (1997) (internal if whether the Act is excessive

and quotation L.Ed.2d 63 omitted). purpose. remedial As we to the relation The clause is marks and citation said, to aid law en- have serves protect against legislative designed public. protect Con- provide forcement fair notice of the abuses and the several legislatures and the gress, of criminal actions. See consequences states, Florida, 423, 429-30, egregiousness considered the have Miller crimes, where chil- particularly of sexual 96 L.Ed.2d concerned, indi- are have dren studies high parties dispute rates that the offenders have do

cated sexual passed of the after Cutshall committed We are also mindful Act was of recidivism. They agree offense. also on convicted sex his sexual imposes burdens the Act convict However, purports apply to those al- the Act many of these offenders. itself, to its enactment. prior of sex offenses the Act ed leged burdens stem not from Therefore, only we need address sec potential from the abuse of but analysis: post of the ex grav- ond element public. Given facto impermissibly the Act disadvan the whether ity protecting interest the state’s offenders, offenders, by altering the defini sex tages public from recidivist sex increasing the of criminal conduct or registrants, tion imposed the small burdens on for crimes punishment onerousness say requirements cannot their enactment. committed before purpose. Act exceed its remedial Court, first, considered, punishments although not ex- The histori factors, adopting Kennedy cally re- would have been pressly viewed as violative applied many prohibition: of the same factors in of the bill of attainder cently “im banishment, in post challenge prisonment, ex an- deciding punitive an facto Hendricks, Kansas v. property by other context. See confiscation of the sovereign,” 346, 360-69, 2072, legislative 521 U.S. S.Ct. 138 and “a barring desig enactment (1997). involved a groups L.Ed.2d 501 Hendricks nated individuals- or partic from a civil commit- in challenge ipation specified employments constitutional or voca statute, 474, (footnotes Sexually ment Kansas’s Violent tions.” Id. at 97 S.Ct. 2777 omitted). Second, Predator Act. See id. 2076. The Court the Court considered whether, analysis, in single light severity conducted a determined of the punitive, imposed, that the law at issue was not and burdens the challenged law legitimate nonpunitive purposes. concluded that the law could not violate served 475-76, jeopardy prohibition Third, either the double or See id. at 97 S.Ct. 2777. post the ban on ex laws. See id. at the Court legisla examined whether the facto punish 2081-85. intended the law to serve as ture 478, ment. See id. at 2777 (citing S.Ct. Hendricks, light analysis we Mendoza-Martinez, Kennedy v. 372 U.S. persuaded that anal- are the intent-effects 644). 83 S.Ct. 9 L.Ed.2d These ysis jeop- we have discussed the double applied again three considerations were ardy applies context as for determin- well System Selective Service v. Minnesota ing whether the Ex Post Facto is Clause Public Interest Group, Research 468 U.S. implicated by Using ap- the Act. 841, 852, L.Ed.2d 632 conclude, proach, once that the again, we (1984). punish, was Act not intended and its requirements do not transform the law self-evident, think, It is Act punishment. impos- into Because the not, Act in light Tennessee. did of these punishment, es no the Ex Post Facto considerations, Bill violate the of Attainder implicated. is not Clause Gathering possibly Clause. dissemi nating is not one of the tradi 3. And, punishment. tional forms of as we challenge lodges third Cutshall A clear, legitimate have made the Act serves Act that it against the violates the con regulatory purposes and was not intended against stitutional bar attainder. bills of punishment. to serve as Clause, The Bill of Attainder U.S. Const. I, § prohibits legislatures art. cl. 4. acts, engaging “[legislative

from no form, apply matter what their either Act argues vio easily to named individuals or to ascertain prohibition Eighth lates the Amendment’s group way members of a in such a as able punishment. of cruel and unusual The punishment inflict on them without provides: “Excessive Eighth Amendment Brown, judicial trial.” United States v. required, bail shall not be nor excessive 437, 448-49, 1707, 14 381 U.S. imposed, pun fines nor cruel and unusual L.Ed.2d 484 In Nixon v. Adminis amend. ishments inflicted.” U.S. Const. Services, 425, 97 trator General VIII. (1977), 53 L.Ed.2d 867 the Su preme already Court considered the definition of We have concluded that the punishment; it punishment impose regula- in the bill of attainder context. does not Therefore, three-prong tory test in nature. does not Court announced prohibi- determining ques Eighth whether the violate the Amendment’s law punishment. imposed punishment. tion tion on cruel and unusual Court provide Tennessee was Cuts- ' pro- appropriate procedural hall with due the Act vio also claims releasing any protections reg- cess before right to interstate his constitutional lates hand, the istry information. On the other on state argument travel. He bases court concluded that no constitu- district history the Act of legislative in the ments implicated tionally protected interest was registry that a sex offender indicating by registration provision. Ten offenders to flee encourage would sex of states with no such in search nessee prohibits “The Fourteenth Amendment registry. depriving state actors from an individual of fail. “The cases must argument This life, pro or due liberty, property without in to travel doctrine right applying Bailey Floyd County law.” v. Bd. cess of between distinguished volve laws which (6th Educ., 135, 140-41 Cir. F.3d of state, who were denied to a newcomers 1997). state interference with a Absent long and residents of rights, fundamental interest, protected property liberty or duration, who were accorded such er pre-deprivation Cutshall is entitled to no Supreme v. Court rights.” Salibra of process whatsoever. See id. at 141. (6th Ohio, Cir. 730 F.2d 1064-65 1984). applies Act to all The Tennessee and property interest exists its [A] re residing sex offenders Tennessee un- by boundaries are defined “rules or they of where were convicted. gardless derstandings indepen- that stem from an residency no duration of The Act contains law—rules or dent source such as state Moreover, now that all 50 restriction. understandings that secure certain ben- adopted regis sex offender states have support that claims of entitle- efits and Hiller, Note, tries, Problem Stacey see ment to those benefits.” Registration: with Juvenile Sex Offender Regents Id. Board (quoting State Public Disclo The Detrimental of of Effects of sure, Roth, 564, 577, 276 & n. 36 Colleges 7 B.U. Pub. L.J. 408 U.S. Int. (1998), (1972)). is no more or less at Tennessee 33 L.Ed.2d 548 There- for a sex tractive than other state fore, protected interest establish place in total seeking offender to'reside having register either freedom from anonymity. public registry freedom from disclosure of information, point Cutshall must be able right to a conferred state law or the pro- challenges the Act on Cutshall also supports his contention. Constitution He claims process grounds. cedural due We will address each of Cuts- alleged him constitu- deprives the Act First, arguments “[i]t turn. hall’s rights privacy employment, tional and fundamental the state cannot hold and stigma, free from with- right and the to be punish except in physically an individual Specifically, Cuts- process out'due law. process with of law.” pro- accordance due infringes hall that the Act his claims imposes 651, 674, liberty Wright, tected interests- because it Ingraham v. 430 U.S. subjects stigmatization him to punishment, 51 L.Ed.2d Howev employment, infringes right and his loss er, physical Act involves no Tennessee pursue employment, his violates restraint, it and we have concluded right privacy by and federal dis- state Therefore, punishment. imposes no closing private matters. reject process argu first due Cutshall’s impli ment and hold that the Act does not agreed court with Cutshall

The district liberty being interest cate Cutshall’s provision allowing of the Act process due punishment free from without disclosure of law. rights, violated these and concluded alcohol, “plus” portion claim that the vio met the

Cutshall’s of the stig- ma-plus previous rights Supreme his Fourteenth Amendment test' under lates deprives Court decisions. imposes stigma Cutshall claims that loss because employment and violation of privacy privacy him of is likewise his employment rights satisfy “plus” requirement his without merit. Wisconsin Constanti neau, case. (1971), L.Ed.2d 515 Court first, examine, Cutshall’s claim We constitutionality addressed the of a Wis deprives that the Act him of his claimed authorizing posting law of consin right employment. to charge “A that whom intoxicating names of individuals to merely plaintiff a makes less attractive to The liquors should not be sold. Court employers open other but leaves a definite name, person’s good a rep stated: “Where range opportunity of does not constitute a utation, honor, or is at stake integrity be Hunt, liberty deprivation.” 24 Gregory v. government doing of what the is to cause (6th 781, Cir.1994) (internal F.3d 788 quo him, opportunity notice and an to be heard omitted). tation marks and citation In this 437, Id. at 91 are essential.” case, the Act does not limit ability of made clear in a later Court registrants any type to seek and obtain case, however, reputation that alone is not McWherter, employment. In v. Dean 70 constitutionally protected liberty a or (6th Cir.1995), F.3d 43 chal plaintiffs Davis, property interest. See Paul v. 424 lenged a Tennessee law that labeled sex 693, 701, 1155, 47 U.S. 96 S.Ct. L.Ed.2d “mentally plaintiffs offenders as ill.” The (1976). Only stigma 405 where the claimed that the law violated the Due Pro damage reputation coupled to a with stigmatized cess Clause because it them interest, employment, another such as their employment diminished future procedural process protection due trig opportunities. rejected court This decisions, gered. reviewing In its Su challenge, plaintiffs noting that failed preme Court stated “the Court has to labeling adversely establish held that never the mere defamation of an impacted employment opportunities. their individual, by branding whether him disr employment future opportuni “[Plaintiffs’ otherwise, loyal or was sufficient to invoke depend independent, ties on medical men guarantees procedural process due willing tal health evaluations and on the an accompanying govern absent loss of employers ness to hire convicted sex 706, employment.”

ment Id. at offenders, [law not on the at Id. issue].” added). (emphasis 1155 The Due Process at 46. implicated only Clause is con when state recognizing constitutionally Courts a right previously duct alters “a or status protected right employment to have done recognized by law.” at state Id. 96 very so in limited circumstances and have has S.Ct. 1155. This come to be known as government dealt with terminations of em- See, the “stigma-plus” e.g., test. Levin v. ployment where either state law or an (6th Childers, Cir.1996). F.3d agreement parties purports between the in' a establishing pro ability government To succeed limit the to ter- interest, liberty plaintiff employment. tected a must minate the Cutshall has cited, found, “governmental show that the action taken and we have not case deprived right pre general private the individual of a recognizing right em- Paul, viously held under state law.” 424 ployment. McElroy, Greene v. (1959), Naegele

U.S. 96 S.Ct. 1155. In 3 L.Ed.2d 1377 Moulton, States, v. Advertising Outdoor Co. 773 and Joelson v. United 86 F.3d 1413 (6th (6th Cir.1985), Cir.1996), F.2d this court relied on the district court, government observed that loss of employ government employment involved ment, right purchase support or loss and do not the district court’s procreation, contraception, Act a consti- rela- implicates family that the conclusion in- tutionally protected liberty property or and child edu- tionships, rearing and in employment. terest In these areas it held cation. has been are there limitations on the States’ upon way infringes Cuts- Act in no power substantively regulate' conduct. seek, obtain, and maintain ability to hall’s contend, quite does not job. 712-13, (internal Id. at 96 S.Ct. 1155 him prevents from correctly, omitted). quotation marks and citations (cid:127) employment. obtaining government addressed a right privacy This court Therefore, does not hold the Act DeSanti, claim in J.P. 653 F.2d 1080 constitutionally protected liber- implicate a (6th Cir.1981). The case involved chal- employment. interest ty property lenge county’s practice to an Ohio com- right turn now to We Cutshall’s piling juvenile social histories on offenders. under the federal Constitu privacy claim The social histories contained information Roe, 589, 97 tion. Whalen U.S. incident, juvenile, family, about his (1977), 869, 51 L.Ed.2d 64 the Su records, school and anything else that preme acknowledged Court the existence probation deemed id. officer relevant. See in privacy making, of a interest decision The social history given 1082-83. was possibility and the of an individual interest to and made 55 the court “available to avoiding personal in disclosure of matters. social government, religious different However, support of a the existence belong to a agencies that ‘social services ” privacy publication interest in of avoiding Id. at clearinghouse.’ juve- 1082. The matters, only con personal the Court cited alleged plaintiffs practice nile that this vio- curring opinions. dissenting right privacy. lated constitutional their of Whalen, 25, n. 429 U.S. at 599-600 & at 1085. This rejected See id. court that authority S.Ct. 869.We find no in case in in challenge, light even of the language interest proposition for that such an indicating possible Whalen of existence rate, any exists. At Court the Whalen a right private to nondisclosure of matters: issue, com concluded that the law at which Absent a clear indication Su- from the piled patient data did not prescriptions, on preme we will not Court construe isolat- in implicate alleged privacy interest ed ... statements Whalen more avoiding matters. private the disclosure of broadly their context rec- than allows to vein, persuaded In the same we are not ognize a general right constitutional infringes on constitution private of have disclosure information ally protected privacy interest. against the need measured for disclo- Paul, In U.S. 96 S.Ct. sure .... addressed again L.Ed.2d the Court of right privacy: ... conclude that the Constitu- [W]e privacy While there of right is no encompass general right tion does not any specific found in guarantee private to nondisclosure of information. Constitution, recognized the Court has with agree those courts that have We that zones of created privacy may be right privacy restricted the of to its specific more constitutional guarantees boundaries as established Paul thereby impose upon govern- limits Wade, ... and Roe v. Davis U.S. [Pjersonal power.... rights ment [113, 35 L.Ed.2d pri- found guarantee personal this (1973),] personal rights ... those vacy must be which are limited to those “im- can be deemed “fundamental” or implicit concept fundamental or in the concept liberty.” plicit in the ordered liberty.... ordered de- The activities (citations omitted). being tailed as within définition Id. at This 1089-90 juvenile were relating marriage, matters court concluded release of any privacy did not violate Supreme social records Given the Court’s and this court’s narrow implicit fundamental view of the federal right was constitu- right tional of privacy, reject Cutshall’s concept liberty. of ordered See id. at claim that the Act infringes on this assert- right. ed The Constitution pro- does not making decision that its Cutshall had vide Cutshall a right keep with his- keep right registry constitutional his private, information and the Act private, the district court re impose does not any restrictions on his heavily Department lied on United States personal rights that are fundamental or Reporters Justice v. Committee implicit concept liberty, of ordered Press, Freedom 109 such procreative as his rights. or marital 103 L.Ed.2d 774 How Cutshall also a privacy claims in ever, a analysis careful leads us to con terest derived from Tennessee law. The applicable clude that this ease is not to the Supreme Court of Tennessee has conclud Committee, issue us. In Reporters before ed: Court decided “whether the Based on both the language and the disclosure of the contents of FBI rap [an development constitution, of our state party reasonably sheet] to third could we have no hesitation in drawing the expected to constitute an unwarranted in conclusion that right there is a of indi- personal privacy vasion of within the privacy guaranteed vidual under and meaning the Freedom of Information protected by liberty clauses 751, Act.” Id. at 109 (emphasis S.Ct. 1468 Rights. Tennessee Declaration of added) (internal quotation marks and cita Undoubtedly, that right privacy to in- omitted). tion The Freedom of Informa corporates some of the attributes of the Act, § tion requires 5 U.S.C. broad federal constitutional right privacy to disclosure of in documents. Records or and, situation, any given fact may also compiled formation for law enforcement share some of its contours.... [How- “ disclosure, excepted only are from ‘but to ever, there is no reason to assume that the production extent of such complete there is congruency. reasonably expect [materials] could Davis, Davis v. 842 600 S.W.2d ed to constitute an unwarranted invasion (Tenn.1992). specific The individual free- ” 755-56, personal privacy.’ of Id. at 109 dom at right stake Davis was the of (quoting 5 U.S.C. procreation, and the court concluded 522(b)(7)(C)). § Although the Court made it was included in the right individual’s of possibility references to the of a constitu privacy. id. tional right keep private to matters from recently This court has been faced with disclosed, being publicly any reference presented the claim here —that the Ten possible right made to this was mere dicta. provides right nessee constitution a to be only The matter a before Court was private free from the disclosure of specific exception FOIA; to and after the facts. This court declined to decide the decision,

Reporters Committee this court “respect matter of right out for the of a position has continued to maintain its ar system state court to construe state’s ticulated in J.P. there is no federal own constitution and ... statute.” Doe v. constitutional right of nondisclosure. See (6th Cir.), Sundquist, 106 F.3d (6th Wigginton, Doe v. 21 F.3d denied, 810, 118 51, 139 cert. Cir.1994). Therefore, district court’s L.Ed.2d 16 That case involved a Reporters reliance on Committee was mis challenge legislation to the recent Ten placed, and we conclude that Cutshall has significantly broadening nessee the avail keep no constitutional right his ability previously adoption of sealed rec information being plaintiffs from disclosed. ords. in that case When provides claims in Tennessee state constitution of brought right their nessee a relief, seeking injunctive the Tennes- privacy encompassing court non- right to the judge stated: private see of disclosure matters. We have argument ‘plaintiffs’ Court examined the Tennessee The constitution finds right to non- privacy language suggesting extends find no right to be private privacy disclosure kind Cutshall claims. of pri- Moreover, without merit. disclosure important, and what is more information is not consti- vate entitled to have no reason to believe that protection. privacy right tutional Tennessee Court find would general “right has more to do with the Therefore, such a right. we hold that the protected sphere be let alone” and a provide Tennessee constitution does not may government regu- in which the right private to the nondisclosure of facts. late conduct than amor- some .rather has failed to establish that right phous protecting against the non- any constitutionally protect- Act infringes private disclosure information. liberty property ed employ- or interests in 97C-941, Sundquist, No. Doe WL more, privacy. ment or Without his claim (Tenn.Cir.Ct. 1997) 2,May at *6 damages reputation that the Act his must added). (emphasis Without “plus” also fail. factor of Appeals The Tennessee Court of has employment privacy, Cutshall has failed right provid “that the privacy observed satisfy stigma-plus test of Paul. under Constitution ed to Tennesseans our Therefore, he is not any proce- entitled to fact is in more extensive the corre than protections dural under the Due Process sponding right to privacy provided by the Clause. Constitution.” Campbell Federal Sund (Tenn.Ct.App. 926 S.W.2d quist, 1996). However, that case dealt with the Finally, Cutshall claims that autonomy privacy branch of and did not Equal violates Protection Clause. any right address nondisclosure. Protection that Equal provides Clause case, that the court a Tennes invalidated persons similarly “all situated should be attempted see law which to restrict con City treated alike.” Cleburne Cle v. sensual homosexual sex: Living Center, 432, 439, burne think is with We consistent this (1985). 105 S.Ct. 87 L.Ed.2d 313 State’s Constitution and constitutional legislation Unless the classification under jurisprudence to hold an adult’s class, a suspect attack involves the classifi engage to right and non- consensual only rationally cation need to a related priva- commercial sexual activities in legitimate goal con government to surtive of that cy adult’s home is a matter of challenge. Chapman stitutional personal intimate concern which is at States, 453, 465, United U.S. heart of protection Tennessee’s 1919, 114 L.Ed.2d 524 '“[L]egisla right privacy, to right and that this presumed tion to is be valid and will be not should be diminished afforded sustained if the classification drawn constitutional protection less when the rationally statute related to a legitimate is engaging private activity adults Cleburne, state interest.” U.S. gender. are the same . 105 S.Ct. 3249 cited,

Id. at 262. has Cutshall not and we found, any not have case from a Tennessee Convicted sex offenders are-not adopting court right constitutional to the Therefore, suspect the Act sub class. private nondisclosure of matters. ject scrutiny to under the rational basis The Tennessee legitimate Court has test. Tennessee has established spoken on the issue of the Ten- law enforcement public whether concerns about IV. respect to sex offenses. Given safety with pose a that sex offenders the indications reasons, For all of these we find that the reoffending, we cannot threat of particular not unconstitutional either in its Therefore, Act is irrational. say that the registration provision or its notification fail. We hold that the claim must also this provision. We REVERSE the district right not violate Cutshall’s Act does court’s decision insofar as it found that the of the laws. equal protection provide state of Tennessee was process hearing sex offenders with a due C. prior releasing registry information. We AFFIRM the district court’s decision takes with the Tennessee also issue upholding registration provision. by the district temporary injunction issued injunction by the district entered releasing preventing the state from court court is dissolved. Although not registry data. sex offender below, proceedings from the crystal clear JONES, R. NATHANIEL Circuit assume, deciding, without we will Judge, dissenting. in effect. injunction is still disagree majority’s I with the conclusion the decision This court reviews pro is not entitled a due injunction for an grant preliminary hearing public cess before disclosure of his of discretion. See Glover John abuse registration sex offender and verification Cir.1988). (6th son, 855 F.2d pursuant information can occur to Tenn. injunction deciding preliminary whether a 40-39-106(c) (d) (1994).1 Ann. Code discretion, this court con was an abuse of court, Like the district I believe that Cuts following siders the four factors: hearing. hall is entitled to such a I also (a) on the the likelihood of the success majority’s take issue with the final resolu action, merits case. the district tion Because (b) harm could re- irreparable which court elected to review the constitutionali requested, without the relief sult ty just presented by one of the claims (c) interest, impact on parties, multiple constitutional claims I pending remain for resolution. would case additional therefore remand this (d) if harm to possibility substantial these findings by the district court. On others. compelled I am to dissent. grounds, two Because, for all the reasons we have Id. outset, my At let me make clear length, at Cutshall has failed to the discussed way In should dissenting. intentions no persuade challenge this court that his merits, minimizing sig- the my we find dissent be read as likely would succeed on the a problems nificant we face as result court abused its discretion social district offender all-too-prevalent sexual entering injunction. the (d) local law enforcement provisions provide: If the TBI or a 1. Those necessary protect agency to deems it (c) July prior For all offenses committed to concerning specific public a sexual offender 1, 1997, provided except otherwise as required register pursuant to this who is to (a) (b), report- subsections and information may notify part, agency such bureau or registration/monitor- ed on offender sexual including public by any the follow- means forms, forms, ing verification/monitoring ing: acknowledgment forms shall be confi- and notice; (1) Written dential; provided, that the TBI or a local (2) registra- Electronic transmission agency shall release rele- law enforcement information; tion necessary pro- vant deemed to (3) registra- Providing access to on-line concerning public specific sexual tect the tion required register pursu- information. offender who is to (d). 40-39-106(c), §§ Ann. chapter. Tenn.Code ant to this 484 (what crimes, call when recidivism the statutes the risk occur. Such which

crimes “re-offense”). adults, See, especially e.g., and N.J. Stat. Ann. against committed children, 2C:7-8(e) (West 1995) an against § are (commonly when committed known I Law”). core values that hold dear. affront to the In “Megan’s as the case offend sexual offenders and Without question, ers who committed severe sexual have and present danger, predators sexual crimes, provided great is public deal prosecuted to the fullest diligently must be information, including offender’s See, Gunter, e.g., law. Booth extent of the name, photograph. and Where address Predators, Alarm on Sexual Sounding the severe, is less the offender’s sexual crime Tampa 1, 2, 1997, Mar. at available tribune, provided public is less information— Ho, 7037377; in 1997 WL Vanessa Sexual zip code, example, for the offender’s but the Internet into Homes Predators Ride Pataki, Doe v. his address. See 120 post-intelligenc America, Seattle Across denied, (2d Cir.1997), 1263, F.3d 1268-70 cert. 1997, 6, Al, at available in 1997 May er, — —, 1066, 118 140 U.S. 3195702; Tamara Lytle, Sexual Pre WL (1998) (describing L.Ed.2d N.Y. Cor Chicago On-Line, dators Lurk tribune, (McKinney Supp. § rect. Law 168 et seq. 8, 1997, at Nov. available 1997 WL 1999)). Because the Tennessee Act fore- Sullivan, 3608086; Potential Dan Jack goes categorization, process such a due ger is Growing, Sexual Predators from importance, hearing especially is of utmost Mar. at avail Herald, Boston in the case of sex whose offenders crimes Today, able in howev 1999 WL severe; them, are less the harm to should er, husband, my I write not role as public occur, inaccurate disclosure to the rather, in grandfather, my father and but would great be indeed. me, requires role role which judge as —a appropriate, when to state review criminal purpose process of the due hearing they pass to whether statutes determine (1) is two-fold: ensure that to informa- constitutional muster. A statute state de (2) accurate; tion to be disclosed is signed protect public to from criminals necessary protect disclosure in fact and criminal behavior—no matter how vile (as public by Tenn.Code Ann. comport the crime—must with constitu 40-39-106(c) (d)). Cutshall, §§ guarantees. tional at 934. To make that latter F.Supp. view, In my correctly the district court determination, presiding judge will guarantees by found that the secured danger need to assess the the communi- Due Fourteenth Amendment’s Process ty posed I sex offender. would minimum, that a require, Clause hear place demonstrating the initial burden of ing public prior held disclosure of a compliance two-prong with this test on the registration sex offender’s and verification prosecution, and afford the sex offender an information. See Cutshall Sundquist, opportunity findings, partic- to rebut those (M.D.Tenn.1997); F.Supp. see ularly the communi- danger the “risk Verniero, also E.B. v. 119 F.3d 1111 ty” assessment. cases where the need — (3d Cir.1997), denied, —, cert. U.S. protect public great, where (1998); Pataki, Doe occur, quickly notice to the must (S.D.N.Y.1998). F.Supp.2d expedited. could hearing perhaps need process hearing to hold a due is made cases, however, prosecution In all both the more the fact by acute that the Tennessee and the sex offender should be afforded an same, Act views all sex offenders the re opportunity present relevant evidence crime(s). gardless severity of their including, necessary, testimony by when The sex statutes in other offender enacted expert witnesses. See id. states, contrast, by distinguish offenders my objection majori- for I purposes also voice information disclo sure, ty’s view categorize expansive them the risk of of its role this case. at the outset majority notes the Act vio to decide whether was “asked Constitution, spe

lates the States United Jeopardy, Ex Post

cifically, the Double Attainder, Process,

Facto, Bill Due Clauses; Eighth

Equal Protection

Amendment; right constitutional interstate; constitutional

travel Ante, at dis privacy.” 469. The

right however, court, limited its discussion

trict just whether the Tennessee one issue: procedural pro due

Act violates Cutshall’s Cutshall, F.Supp. rights.

cess court concluded that

931. The district , discretionary ... disclosure “[b]ecause of the Tennessee vio

provisions [Act] Due Clause of the Four Process

late[ ] ..., not [we] do[ ]

teenth Amendment other constitutional

reach the merits of the Recog Act.” Id. at 934.

challenges to the court, reviewing

nizing that we are ren role is to review decisions our courts, make by the district

dered instance, decisions in the first see

those v. American Postal Workers Un

Roeder (6th

ion, AFL-CIO, F.3d 737 n.

Cir.1999) States v. Mark (citing United (6th Cir.1995)),

wood, I 48 F.3d to a majority’s limit the discussion

would Fourteenth

review of the district court’s case analysis, and remand this

Amendment supplemental findings. constitutional JONES, Plaintiff-Appellant,

Clifford al., SIMEK, et Defendants-

Randall

Appellees.

No. 98-2243. Appeals, States

United Court

Seventh Circuit. 9, 1998.

Argued Dec. Sept.

Decided

Case Details

Case Name: Arthur Cutshall, Plaintiff-Appellee/cross-Appellant v. Don Sundquist, Govenor of the State of Tennessee, Defendant-Appellant/cross-Appellee

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 4, 1999

Citation: 193 F.3d 466

Docket Number: 97-6276, 97-6321

Court Abbreviation: 6th Cir.