In Re Meyer
We are asked in these three consolidated cases to decide if the risk classification of certain sex offenders by the Department of Corrections (Department) and local law enforcement authorities pursuant to
ISSUES
1. Do the risk classification and community notification procedures of the 1990 community protection act relating to sex offenders violate petitioners’ rights to due process of law?
2. What process is due these sex offenders?
3. Should the Court stay the enforcement of any community notification regarding these sex offenders?
FACTS
Petitioners Meyer, Erickson, and Sundstrom are convicted sex offenders still in the Department‘s custody. On November 24, 1992, Douglas Meyer was convicted of second-degree rape in the Grant County Superior Court pursuant to
On June 18, 1993, Eric Erickson pleaded guilty to two counts of first-degree child molestation in the Snohomish County Superior Court pursuant to
On September 4, 1997, Bradley Sundstrom pleaded guilty to second-degree child molestation pursuant to
All three petitioners sought discretionary review, which we granted. We consolidated the petitions for the purpose of this proceeding.
ANALYSIS
To understand the issues in this case, it is first necessary to understand generally how the registration and community notification procedures of the 1990 community protection act function. The registration provision,
The community notification provision,
Local law enforcement agencies make the final determination of the risk level classification, after reviewing the ESRC‘s recommendation.
The statute makes no provisions for notice to the offender or a hearing before the ESRC or local law enforcement agency before the community is notified.2
We rejected various constitutional challenges to the 1990 act‘s registration and notification statutes in State v. Ward, 123 Wash.2d 488, 869 P.2d 1062 (1994). With respect to the notification, we held the limited disclosure of registration information to the public does not amount to a “badge of infamy” and is not additional punishment for the offense. Id. at 500-02, 869 P.2d 1062. We did not address the due process issue petitioners now raise. The petitioners here essentially contend the risk classification of
I. Procedural Issues
As a threshold matter, the State contends the one-year statute of limitations found in
Moreover, our decision in Ward implies no restraint is created by these statutes. Ward, 123 Wash.2d at 500-02, 869 P.2d 1062. Additionally, the Court of Appeals for the Ninth Circuit has held a sex offender who has completed his sentence and is subject to Washington‘s registration requirement is not “in custody” for purposes of the federal habeas corpus statute. Williamson v. Gregoire, 151 F.3d 1180 (9th Cir.1998). State law does not require the petitioner to be “in custody.” However, the petitioner must show he is under an unlawful “restraint,” which includes any “disability resulting from a judgment or sentence in a criminal case.” RAP 16.4(b).
But despite these procedural arguments, in the interests of clarifying the law in this important area, we nevertheless choose to address and resolve the constitutional issues posed by the petitioners in light of the substantial public import of these issues. In Matter of Personal Restraint Petition of Myers, 105 Wash.2d 257, 261, 714 P.2d 303 (1986) (holding a personal restraint petition is also available to challenge unlawful state action, even if moot at the time of review, “`when it can be said that matters of continuing and substantial public interest are involved.’ “) (quoting Sorenson v. City of Bellingham, 80 Wash.2d 547, 558, 496 P.2d 512 (1972)). We now turn to the merits of the petitioners’ cases.
II. Due Process
Petitioners argue a convicted sex offender is constitutionally entitled to notice and a hearing before his risk level classification is finally determined under
The Fourteenth Amendment to the United States Constitution prohibits the governmental deprivation of “life, liberty, or property, without due process of law.”
A. Community Protection Act
Liberty interests worthy of protection can arise from state laws. Cashaw, 123 Wash.2d at 144, 866 P.2d 8. But such a liberty interest is narrowly circumscribed. In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the United States Supreme Court wrote “the search for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause.” Id. at 483, 115 S.Ct. 2293. In Sandin, the Court wanted statutory due process liberty interests to “be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force ... nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484, 115 S.Ct. 2293. Thus, Sandin precludes prisoners from claiming a statutory or regulatory due process liberty interest with respect to a variety of relatively minor matters in the institutional setting.3
United States Supreme Court cases discerning the existence of a protected liberty interest are generally restricted to the prisoners’ rights context. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (prisoners’ rights to good time credits); Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) (prisoners’ interest in preventing transfer to prison in another state); Kentucky Dep‘t of Corrections v. Thompson, 490 U.S. 454, 463, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (state law may create enforceable liberty interests in the prison setting); Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987) (prisoners’ interest in parole); Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (prisoners’ interest in good time credits); Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) (prisoners’ interest in avoiding extra punishment in prison). No petitioner has cited a decision applying this statutory liberty interest analysis outside the context of a prisoner‘s regulatory right to sentence reduction. Washington law is consistent with this narrow view of a liberty interest. See, e.g., In Matter of Personal Restraint of Derek E. Gronquist, 138 Wash.2d 388, 397, 978 P.2d 1083 (1999) (prisoners’ interest in good time credits); Cashaw, 123 Wash.2d at 144, 866 P.2d 8 (prisoners’ interest in parole); Matter of the Personal Restraint Petition of Powell, 117 Wash.2d 175, 203, 814 P.2d 635 (1991) (prisoners’ interest in the setting of a minimum sentence); In Personal Restraint Petitions of Johnston, 109 Wash.2d 493, 497, 745 P.2d 864 (1987) (prisoners’ right to good time credits); In the Personal Restraint Petition of Ayers, 105 Wash.2d 161, 164, 713 P.2d 88 (1986) (prisoners’ interest in “the potential of parole“); In re Piercy, 101 Wash.2d 490, 495, 681 P.2d 223 (1984) (prisoners’ interest in good time credits); In the Matter of the Personal Restraint Petition of Dennis Sinka, 92 Wash.2d 555, 565, 599 P.2d 1275 (1979) (prisoners’ liberty interest in the setting of minimum terms).
The seminal Washington case discussing a liberty interest arising from state statutes is Cashaw. There, we said of such a liberty interest:
For a state law to create a liberty interest, it must contain “substantive predicates” to the exercise of discretion and “specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow“. Kentucky Dep‘t of Corrections v. Thompson, 490 U.S. 454, 463, 109 S.Ct. 1904, 1910, 104 L.Ed.2d 506 (1989); Swenson v. Trickey, 995 F.2d 132, 134 (8th Cir.), cert. denied, [510 U.S. 999, 114 S.Ct. 568, 126 L.Ed.2d 468] (1993). Thus, laws that dictate particular decisions given particular facts can create liberty interests, but laws granting a significant degree of discretion cannot.
Cashaw, 123 Wash.2d at 144, 866 P.2d 8.
The petitioners argue
The Court of Appeals for the Ninth Circuit recently dealt with that question and concluded, “[t]he collection and dissemination of information under the Washington law does not violate any protected privacy interest, and does not amount to a deprivation of liberty or property” without due process. Russell v. Gregoire, 124 F.3d 1079, 1094 (9th Cir.1997), cert. denied, 523 U.S. 1007, 118 S.Ct. 1191, 140 L.Ed.2d 321 (1998). The Court of Appeals for the Sixth Circuit recently rejected a due process challenge to a single-tier notification scheme. Cutshall v. Sundquist, 193 F.3d 466 (6th Cir.1999) (finding no liberty or property interest at stake in the release of information about the offender‘s identity and criminal conduct).
In the final analysis, however, we disagree with the petitioners’ view that the registration and disclosure statutes create substantive interests. In Ward, we determined these statutes were not punitive and did not create either an affirmative disability or restraint on sex offenders. See also Doe v. Pataki, 120 F.3d 1263 (2d Cir.1997). In fact, in Cashaw, we declined to find a liberty interest for prisoners subject to parolability hearings by the Board of Prison Terms and Paroles when the Board allegedly failed to follow its own procedures. We found no liberty interest could arise from procedural laws. Parolability involved subjective appraisals with the Board assessing a myriad of imponderables. The risk level classifications here are not significantly different. The sex offender registration and disclosure statutes are essentially procedural statutes; no liberty interest arises from them.
B. Right to Privacy
The petitioners claim a liberty interest, under article I, section 7 of the Washington Constitution, in the information subject to disclosure because that constitutional provision affords significantly greater privacy protection than the United States Constitution. The petitioners misconstrue our case law. In examining just such a contention, we held the Washington Constitution provides no more protection than the federal constitution in the context of the interest in confidentiality, or the nondisclosure of personal information. Ino Ino, Inc. v. City of Bellevue, 132 Wash.2d 103, 124, 937 P.2d 154 (1997). In that case, we even performed a Gunwall analysis
Persons have a limited right of confidentiality in the nondisclosure of criminal information, id. at 124, 937 P.2d 154; O‘Hartigan v. Department of Personnel, 118 Wash.2d 111, 821 P.2d 44 (1991), but such a right of confidentiality in the context of convicted sex offenders is essentially one of avoiding stigma or protecting reputation. But reputational interest does not give rise to a liberty interest. In Paul v. Davis, 424 U.S. 693, 712, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the United States Supreme Court found an individual had no right to due process before police officers posted his picture with an identification as an “Active Shoplifter” in various retail establishments. That individual filed a
The statutes at issue here do not meet the Paul “stigma-plus” requirements. The information disclosed to the public is largely, if not entirely, available from public sources like the court files on these individuals as well as their correctional release plans. The information disclosed is not subject to any specific confidentiality protection. See
Moreover, the public interest in information about potentially dangerous individuals in local neighborhoods is legitimate. This Court, the federal courts, and the Legislature all have recognized the validity of Washington‘s sex offender registration laws and the important role registration and community notification play in the protection of the public. For example, in 1990 the Legislature added a new section to the act, which states:
NEW SECTION. Sec. 116. The legislature finds that sex offenders pose a high risk of engaging in sex offenses even after being released from incarceration or commitment and that protection of the public from sex offenders is a paramount governmental interest. The legislature further finds that the penal and mental health components of our justice system are largely hidden from public view and that lack of information from either may result in failure of both systems to meet this paramount concern of public safety. Overly restrictive confidentiality and liability laws governing the release of information about sexual predators have reduced willingness to release information that could be appropriately released under the public disclosure laws, and have increased risks to public safety. Persons found to have committed a sex offense have a reduced expectation of privacy because of the public‘s interest in public safety and in the effective operation of government. Release of information about sexual predators to public agencies and under limited circumstances, the general public, will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems so long as the information released is rationally related to the furtherance of those goals.
Therefore, this state‘s policy as expressed in section 117 of this act is to require the exchange of relevant information
Laws of 1990, ch. 3, § 116. See also Laws of 1990, ch. 3, §§ 117, 401, 402; Laws of 1991, ch. 274, § 1; State v. Ward, 123 Wash.2d 488, 869 P.2d 1062 (1994). Preventing law enforcement agencies from issuing appropriate community notification would adversely affect an agency‘s ability to assist parents in avoiding the potential for harm to their children.
While we recognize there are authorities to the contrary, see Doe v. Attorney General, 426 Mass. 136, 686 N.E.2d 1007 (1997); Noble v. Board of Parole and Post-Prison Supervision, 327 Or. 485, 964 P.2d 990 (1998); Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 36 A.L.R.5th 711 (1995); Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593, 78 A.L.R.5th 731 (1999); E.B. v. Verniero, 119 F.3d 1077, 1105 (3d Cir.1997), we do not believe the statutes here satisfy the stigma-plus formulation announced in Paul.
C. Avoiding Additional Incarceration
Finally, the petitioners claim they are being held beyond their minimum release date because of their designations as sex offenders. Sundstrom and Erickson both claim their respective classifications as Level III sex offenders preclude their release into community custody, so they are being imprisoned beyond their release date. The State contends the petitioners’ release plans “have been denied because the proposed address would violate the terms of the sentence or would place the Petitioner[s] in close proximity to potential victims.” Resp‘t‘s Supplemental Br. at 19.
Meyer apparently agrees. According to his reply brief, Meyer is “being held past his early release date because the proposed residences submitted by him have not been accepted by the Department of Corrections.” Reply Br. at 1. Yet, Meyer does not argue the process by which the Department evaluates proposed early-release residences violates his right to procedural due process. Thus, Meyer‘s claim is without merit.
Sundstrom, Erickson, and the State have submitted affidavits in support of their respective positions. Sundstrom‘s mother has apparently contacted several possible release facilities, all of whom refused to accept Sundstrom because he is a “Level III” sex offender. Decl. of Becky Sundstrom, App. 9 to Petr‘r Sundstrom‘s Mot. for Discretionary Review. Erickson, too, has faced some difficulty in finding a release address because of his classification as a Level III sex offender. At least one possible release facility has a “policy to only admit sex offenders who have been given a level one rating.” Pet‘r‘s Second Mot. to Supplement the R.
None of the Petitioners submitted any affidavits establishing a Level III classification prevents a housing provider from voluntarily agreeing to accept them. They also did not cite any authority to the effect the decisions of private housing providers constitutes sufficient state action establishing a deprivation of to due process.
The State, however, submitted affidavits executed by several Community Corrections Officers (CCO) who claim the petitioners’ community placement plans were denied because they were contrary to the judgment and sentence of each respective petitioner. For example, Erickson‘s judgment and sentence specifically prohibits contact with minors. Consequently, Erickson‘s CCO avers that “[a]lthough, Mr. Erickson is a Level III offender, my decision to deny this plan was not based on his risk level classification.” Aff. of Skip Butler, Resp‘t‘s Mot. to Supplement the R. In the final analysis, no petitioner has established his incarceration has been prolonged because of his classification. Thus, the asserted liberty interest has not been established on this record.
CONCLUSION4
The petitioners have not established a liberty interest arising out of the provisions of
Notwithstanding our decision today on the petitioners’ constitutional claims, we express a certain discomfort with the seeming unfairness of a process of classification in which the offenders have little involvement. We note such offenders are not without avenues of relief if the Department‘s classification recommendation or the local law enforcement agency decision is arbitrary or capricious. These individuals may secure judicial review by writ of certiorari for arbitrary or capricious classification.
We affirm the decisions of the Court of Appeals in these cases dismissing petitioners’ PRPs.
GUY, C.J., SMITH, MADSEN, IRELAND, and BRIDGE, JJ., concur.
ALEXANDER, J. (dissenting).
As the majority has observed, convicted sex offenders are required, upon release from prison, to register with the sheriff in the county where the released offender intends to reside.1
In State v. Ward, 123 Wash.2d 488, 869 P.2d 1062 (1994), we upheld the registration requirement for sex offenders against a variety of challenges, including a claim that the requirement to register violated the due process rights of offenders. The petitioners here do not reassert a challenge to the registration requirement nor do they assail the statutory provision requiring community notification. Their personal restraint petitions are limited to presenting a question that we did not address in Ward, i.e., whether offenders have a due process right to notice and a hearing before their risk level is determined and information about them is disseminated to the public.
As the majority observes, the parties who bring their personal restraint petitions to us are all convicted sex offenders whose risk levels have been determined by the ESRC. Petitioner Douglas Meyer was classified as a risk Level I sex offender (low risk), while petitioners Eric Erickson and Bradley Sundstrom were classified as Level III sex offenders (high risk). At the time they filed their petitions, the appropriate local law enforcement agency had not made a final determination of the risk level of any of the petitioners.
The petitioners claim that the classification scheme is unconstitutional because it fails to provide them with notice and an opportunity to be heard before their risk level classification is determined and personal information about them is disclosed to the community. The majority rejects this claim.
The petitioners assert that their right to “liberty” arises from three sources: (a) the mandatory requirements of the community notification statute; (b) their right to privacy or, more specifically, the right not to be wrongfully stigmatized and labeled as dangerous; and (c) their interest in avoiding further incarceration. I devote my attention entirely to their second claim.
This court has identified two types of interests protected by the right to privacy: the right to autonomous decision making and the right to nondisclosure of intimate personal information, or confidentiality. O‘Hartigan v. Dep‘t of Personnel, 118 Wash.2d 111, 821 P.2d 44 (1991). The petitioners, while conceding that convicted sex offenders do not have a protected interest in confidentiality of public records and criminal history, assert that the disclosure of certain identifying information in conjunction with a public “branding of dangerousness” implicates constitutionally protected privacy interests. Opening Br. in Supp. of Pers. Restraint Pets. of Erickson & Sundstrom at 19. Petitioners essentially argue that their interest in avoiding wrongful stigmatization and in protecting their reputation is sufficient to require the state to afford them due process in the form of notice and a hearing before information about them, beyond that which is contained in public records, is disclosed to the public.
In my view, the petitioners’ arguments are entirely consistent with the United States Supreme Court‘s decision in Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). There, the Court reviewed a statute that permitted local governments to post notices in stores in order to identify persons who had been prohibited from purchasing liquor. Id. at 434, 91 S.Ct. 507. The statute did not provide for a hearing before the notices were posted. In striking down the statute, the Court said, “Where a person‘s good name, reputation, honor or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Id. at 437, 91 S.Ct. 507. The Court went on to state, “Only when the whole proceedings leading to the pinning of an unsavory label on a person are aired can oppressive results be prevented.” Id.
The majority stresses a later case, Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). There the Supreme Court held that an individual had no right to due process before police officers posted the individual‘s picture in various retail outlets with an indication that the person pictured was an “active shoplifter.” Id. at 712, 96 S.Ct. 1155. It said that one‘s interest in reputation is “neither `liberty’ nor `property’ “guaranteed against state deprivation without due process of law. Id. Thus, it concluded that reputation “alone,” apart from some tangible interest, is not deserving of protection. Id. at 701, 96 S.Ct. 1155. This case has led courts to engage in the so-called “stigma-plus” test in assessing such cases.
The majority also cites Russell v. Gregoire, 124 F.3d 1079 (9th Cir.1997), wherein the United States Ninth Circuit Court of Appeals looked at Washington‘s community protection act and rejected due process claims by offenders, holding that the act “does not violate any protected privacy interest, and does not amount to a deprivation of liberty or property.” Id. at 1094. While that decision is not binding on this court, a decision from the
There is considerable authority from other jurisdictions that community notification statutes, like those before us here, implicate a privacy or liberty interest.5 The case that bears the most similarities to the instant case is Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 421 (1995), a decision of the Supreme Court of New Jersey. Like Washington, New Jersey‘s community notification law6 provided for notification to the public based on three levels of risk to offend: low, moderate, and high. Doe, 662 A.2d at 378. The New Jersey statute was comparable to Washington‘s in that risk levels of offenders were determined without the benefit of prior notice to the offender or the provision of any hearing. The New Jersey court, relying on the United States Constitution as well as a provision of the New Jersey Constitution, determined that the statute impinged on the offenders’ “liberty interests” sufficient to trigger due process protections. Id. at 420. It concluded, therefore, that an offender could obtain judicial review of a determination of level two or three classification, if the offender objected to such a classification prior to notification. Id. at 421.
The highest court of our neighboring state of Oregon has similarly held that the parole board of that state cannot publicly brand someone as a “predatory sex offender” without first affording the person notice and a hearing. Noble v. Bd. of Parole & Post-Prison Supervision, 327 Or. 485, 964 P.2d 990 (1998). In a well-reasoned opinion authored by Justice Gillette, the court said:
When a government agency focuses its machinery on the task of determining whether a person should be labeled publicly as having a certain undesirable characteristic or belonging to a certain undesirable group, and that agency must by law gather and synthesize evidence outside the public record in making that determination,
the interest of the person to be labeled goes beyond mere reputation. The interest cannot be captured in a single word or phrase. It is an interest in knowing when the government is moving against you and why it has singled you out for special attention. It is an interest in avoiding the secret machinations of a Star Chamber. Finally, and perhaps most importantly, it is an interest in avoiding the social ostracism, loss of employment opportunities, and significant likelihood of verbal and, perhaps, even physical harassment likely to follow from designation. In our view, that interest, when combined with the obvious reputational interest that is at stake, qualifies as a “liberty” interest within the meaning of the Due Process Clause.
I find myself in agreement with the reasoning of the Oregon and New Jersey courts and conclude, as did they, that the petitioners have a significant liberty interest in not having their reputation wrongly stigmatized by the government. I reach this conclusion because it is readily apparent to me that the degree to which information is released to the public about these offenders can have significant effect on their lives. As the Oregon court observed, ostracism, loss of employment, and verbal and/or physical harassment damages more than one‘s reputation and constitutes significant intrusions of one‘s liberty. Noble, 964 P.2d at 996. If the intrusion is the result of an incorrect branding of one‘s reputation, this is not a trifling matter, but rather, is an injustice. In sum, I concur with the reasoning of the Oregon and New Jersey courts and would hold that before decisions are finally made as to the degree of public notification concerning the risk, if any, these offenders pose to the public, they should be provided with notice and an opportunity to be heard.
Although the majority acknowledges a feeling of “discomfort” with the “seeming unfairness” of the process that these offenders assail, it nevertheless sweeps its concerns aside indicating that the offenders have the remedy of seeking judicial review by writ of certiorari for an arbitrary or capricious classification. Majority op. at 571. This, in my view, is a hollow remedy since it would be after the fact and would be equivalent to “closing the barn door after the horse has been let out.” In view of the considerable interest petitioners have in making certain that they are not disadvantaged economically or physically by an unjustifiable sullying of their reputation, offenders should not have their risk level finally determined and information about them disseminated before they are afforded notice and hearing in order to assure that the information that is released to the community is not greater than what is “relevant and necessary” for the protection of the public. I would so hold. Because the majority concludes otherwise, I respectfully dissent.
JOHNSON and SANDERS, JJ., concur.