Petition for Writ of Certiorari — Cutshall v. Sundquist

991123 JAN 4 2000

OFFICE OF THE CLERK

No. 99-

IN THE

Supreme Court of the United States

ARTHUR CUTSHALL,

Petitioner,

v.

DON SUNDQUIST, Governor of the State of Tennessee,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UnNiTeD STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

PAUL GREGORY MITCHELL

Counsel of Record

DorAMUS, TRAUGER & NEY

Attorneys for Petitioner

222 Fourth Avenue North

Nashville, Tennessee 37219

(615) 256-8585

amd

156943 @ Counsel Press LLC

(800) 274-3321 » (800) 359-6859

l

QUESTIONS PRESENTED

Does the Tennessee Sexual Offender Registration and

Monitoring Act (the “Act”) constitute an intentional

punishment that, when applied retroactively to Petitioner,

violates the Ex Post Facto Clause or Double Jeopardy Clause

of the U.S. Constitution? Alternatively, does the Act violate

Petitioner’s due process rights?

ul

TABLE OF CONTENTS

Page

Questions Preemie 3s o5icSsosis cee cece eae i

Table of Comat ©. a. . a ebdevesas eee il

Table of Cited Authorities. 2.20.06 5260. esta sce ill

Tabie of Agpenthegs .....665.045hsi- 0s se ee Xx

Opmmons Belew . ois sissies eee l

Statement-of JutmsCHOR. 6565554 ca eh eeas l

Constitutional and Statutory Provisions Involved . l

Statement of the CaGO 666585 5s cde ee 2

Reasons for Granting the Writ ................. 12

I. The legislative history, structure, and text of

the Act reveal a punitive intent. .......... 15

II. The Act infringes on Petitioner’s protected

interests without due process. ............ 19

Concimeie@. ...... oss seb 27

SY TE A UA ek pte

Th

TABLE OF CITED AUTHORITIES

Page

Cases:

Abernathy v. Whitley, 838 S.W.2d 211 (Tenn. Ct.

NE iu Citare ee een eer eravhe cere wees 24

Artway v. Attorney General, 81 F.3d 1235 (3d Cir.

a eee ee ek Wh anaes ae eww 16

Attorney General v. Soto-Lopez, 476 U.S. 898,

106 S. Ct. 2317, 90 L. Ed. 2d 899 (1986) ...... 25

Austin v. United States, 509 U.S. 602, 113 S. Ct.

Zeit, £25 L. BE. 28 466 (1995) ..........-..- 12

Bank One Chicago, N.A. v. Midwest Bank & Trust

Co., 516 U.S. 264, 116 S. Ct. 637, 133 L. Ed. 2d

ria Seog pe kaa KA KR Ae Os 17

Bateson vy. U.S. ex rel. Bd. of Trustees, 434 U.S. 586,

Seo. it. O73, 35 6. Be. 26 SOCIFTT) .......... 19

Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861,

£5: Se ae 13

Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct.

Es pe Re BR fa. yy) Bn 14, 23

Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. Ct.

ER a els iss i nhac aks a kes os kno 24

iv

Cited Authorities

Page

De Veau v. Braisted, 363 U.S. 144, 80 S. Ct. 1146,

01 Bs Be Bee Cv 8 ek eeeaeeeee 12

Doe v. Pataki, 940 F. Supp. 603 (S.D.N.Y. 1996),

aff'd in part and rev'd in part, 120 F.3d 1263

(2d Cir. 1997), cert. denied, 522 U.S. 1122 (1998)

CAG See AEG CO OR OR EE eek 9, 21, 25

Doe v. Pataki, 3 F. Supp. 2d 456 (S.D.N.Y. 1998)

+ bte Wey oe Gat fas a ER Peet iC 22

Doe v. Poritz, 662 A.2d 367 (N.J. 1996) ......... 21

E.B. y. Verniero, 119 F.3d 1077 (3d Cir. 1997),

cert. denied, 118 S. Ct. 1039 (1998) .......... 21

Federal Energy Admin. v. Algonquin SNG, Inc.,

426 U.S. 548, 96 S. Ct. 2295, 49 L. Ed. 2d 49

CROPS 50 kc vre haere ca aie eae wee caeesoee 15

HJ. Inc. v. Northwestern Bell Tele., Co., 492 U.S.

229, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989)

REMAN SES eo Ceol eae iis Saas 15, 16

Hudson v. United States, 522 U.S. 93, 118 S. Ct.

aE Oe ey oy Seamer 12, 16

Ingraham y. Wright, 430 U.S. 651, 97 S. Ct. 1401,

FS Us Gs Oe CA CREED 6 bia 0000 54-05 de 14, 20

Cited Authorities

Page

International Brotherhood of Teamsters v. United

States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d

SOG TAGT TD SEES Ne eR 14

Jaekel v. United States, 304 F. Supp. 993

(S.D.N.Y. 1969) .....---- eee eec cece ecerers 25, 26

Kallstrom v. City of Columbus, 136 F.3d 1055

(6 Cir. 1998) .....- cece cere eee r er erereree aa 82

Kansas v. Hendricks, 521 U.S. 346, 117 S.£%. 20a

138 L. Ed. 2d 501 (1997) ......----- eee: 12,13, 18

Kennedy v. Mendoza-Martinez, 372 U.S. 144,

83 S. Ct. 554, 9 L. Ed. 2d 644 (1963) ......--. 16

Lange-Kessler v. Department of Education of the

State of New York, 109 F.3d 137 (2d Cir. 1997)

Bs Be el a ly eae ee ee ee 23

Miller v. Florida, 482 U.S. 423, 107 S. Ct. 2446,

06 L. Ed. 26 351 (1987) .....-ceveccecsceces 12

Mullane v. Central Hanover Bank & Trust, 339 U.S.

306, 70 S. Ct. 652, 94 L. Ed. 865 (1950) ...... 14

Nixon v. Administrator of General Svcs., 433 U.S.

425, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977) ... 13

North Haven Bd. of Educ. v. Bell, 456 U.S. 512,

102 S. Ct. 1912, 72 L. Ed. 2d 299 (1982) ...... 15

vi

Cited Authorities

Pave

Olmstead v. United States, 277 U.S. 438, 48 S. Ct.

S66, Fa Gn: Se: EE | onc obs eae 24

Orloff v. Willoughby, 345 U.S. 83, 73S. Ct. 534,

OF 4. ek a Cea 6h ace bbe ce ents 16

Oscar Mever & Co. v. Evans, 441 U.S. 750,

99 S. Ct. 2066, 60 L. Ed. 2d 609 (1979) ....... 14

Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155,

47 L.. BE FESS IGA hk eee 19, 20, 22

Paul P. v. Verniero, 170 F.3d 396 (3d Cir. 1999). 23

Specht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209,

SL. Be. 26 Sela ee® 6k tee 13

U/nited States v. Brown, 381 U.S. 437,858. Ct. 1707,

141. Bb: 26 GSS Cet. h bien i wees ek 13

United States v. Good Real Property, 510 U.S. 43,

1148S. Ct. 492, 126 L. Ed. 2d 490 (1993) ...... 26

United States v. One 1961 Red Chevrolet Impala

Sedan, 457 F.24 1353 (Sth Cw. 1972) ......<-- 25, 26

United States v. Wise, 370 U.S. 405, 82 S. Ct. 1354,

6... Be: Be re Ca we new a Sa 14

vil

Cited Authorities

Page

U.S. Dep't of Justice v. Reporter's Comm'n for

Freedom of the Press, 489 U.S. 749, 109 S. Ct.

1468, 103 L. Ed. 2d 774 (1989) ..............23, 24

Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960,

Cre ie eee OUD 5 gd sb bike ess RAE oon 12

Whalen v. Roe, 429 U.S. 589, 97S. Ct. 869,

BES. ee Dees ee > os cee kese saute eeees 24

Wisconsin v. Constantineau, 400 U.S. 433, 91S. Ct.

SOT. 27 E Ba ZO Sis Crer as sect caer s 14, 19, 20

Statutes:

GAN F pdt E>.” SRR R IEE RE ORIReneeee rare wet g |

y RAR ot Sb. , Bane See Oe aie wren wy ts ee 1]

5 BORE okg 2 | “GR ear ae eis ne |

F-¢ 2h +e 1h). RN eere cero en ene sag 10

Tenn. Code Anmm. § 4-6-1460 2... ccc ccc cc ccece: 7

Tenn. Code Amm. § 39-13-5324. wc ccc ccc encnn: 18

Tenn. Code Ann. § 40-28-119 ............+..... 7

Vill

Cited Authorities

Page

Tenn. Code Ann. §§ 40-39-10] to -108 .......... 2

g Se. Ft By os | % |: See crt 5

Tenn. Code Ann. § 40-39-105 ................. 5,18

United States Constitution:

SF os as Ns rs 9-8 So nin 8s Casa ee 1,12

Stu Sec ES eS ee 6 on oa BOS Rd Sener eee 2, 25

Fars GAG ISN hs bc doa Rhee sae ek eae 2

ip ie Re |, Ser amg Ee

Rules:

Tenn. Admin. Rule 0420-1-2-.01 ............... &

Tenn. Admin. Rule 0420-1-2-.01 to -.06 0.0.00... 8

Fenn. Admin. Rule 1100-1-1-.14 000000000000... 7,8

ix

Cited Authorities

Page

Other Authorities:

Alan R. Kabat, Note, Scarlet Letter Sex Offender

Databases and Community Notification

Sacrificing Personal Privacy fora Symbol 's Sake,

35 Am. Crim. L. Rev. 333 (1998) .....--- 27

James QO. Whitman, What is Wrong with Inflicting

Shame Sanctions’, 107 Yale LJ. 1055 (1998) 9 25

TABLE OF APPENDICES

Appendix A -— Opinion Of The United States Court

Of Appeals For The Sixth Circuit Dated, Decided

Ané Filed Gctoter 4, 1999 2c ace eks

Appendix B — Memorandum And Order Of The

United States District Court For The Middle

District Of Tennessee At Nashville Dated And

Entered September 25, 1997 6... cece sense

Appendix C — Memorandum And Order Of The

United States District Court For The Middle

District Of Tennessee At Nashville Dated And

Eastered September 17, 1997 ow wicca scecss

Appendix D — Order Of The United States Court

Of Appeals For The Sixth Circuit Denying

Petition For Rehearing Dated And Filed

oo Se peers rare ee

Appendix E — Relevant Statutes And Rules .....

PA is ate wii

|

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit is reported at 193 F.3d 466 (6" Cir. 1999).

A copy of this opinion is included in the Appendix at

Appendix A. The order and memorandum issued by the

District Court for the Middle District of Tennessee on the

parties’ cross-motions for summary judgment are reported

at 980 F. Supp. 928 (M.D. Tenn. 1997). Copies of this

order and memorandum are included in the Appendix at

Appendix B. Copies of the order and memorandum issued

by the District Court for the Middle District of Tennessee on

Petitioner’s motion for preliminary injunction are included

in the Appendix at Appendix C.

STATEMENT OF JURISDICTION

The United States Court of Appeals for the Sixth Circuit

issued its opinion on October 4, 1999. On October 18, 1999,

Petitioner filed a petition for rehearing with the Court of

Appeals and a motion for leave to file petition out-of-time.

The Court of Appeals allowed the petition for rehearing to

be filed but, on November 19, 1999, denied the petition for

rehearing. A copy of the order of the Sixth Circuit denying

Petitioner’s petition for rehearing is included in the Appendix

at Appendix D. This Petition for Writ of Certiorari is filed

within 90 days of the entry of the Court of Appeals’ opinion.

This Court’s jurisdiction is invoked pursuant to 28 U.S.C.

§§ 1254(1) and 2106.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const., art. I, § 8, cl. 1

Ex Post Facto Clause

No State shall . . . pass any ex post facto Law...

to

U.S. Const., art. IV, § 2, cl. 1

The Citizens of each State shall be entitled to all

Privileges and Immunities of Citizens in the

several States.

U.S. Const., amend. V,

Double Jeopardy Clause

No person shall... be subject for the same

offence to be twice put in jeopardy of life or

limb. ...

U.S. Const., amend. XIV, § |

Due Process Clause

_.. No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.

Tennessee Sexual Offender Registration

and Monitoring Act

Tenn. Code Ann. §§ 40-39-1011 to -108

The Act, as codified in 1995, is contained in the

Appendix at Appendix E at 75a-86a.

STATEMENT OF THE CASE

In 1994, the Tennessee state legislature passed the Sexual

Offender Registration and Monitoring Act (“the Act’), which

took effect on January |, 1995 but which applied retroactively

to persons convicted of sexual offenses prior to the effective

date. (R. 22, Def.’s Add. at 1; J.A.1, at 48.) The Act as

originally passed by the Tennessee legislature did not contain

4 statement of purpose or intent. (R. 22, Def.’s Add. at 1-7;

J.A.1, at 48-54; see App. E at 75a-86a.) The legislative history

of the Act, however, contains clear expressions of legislative

intent.

Representative Brenda Turner, who introduced the bill

in the House, stated that the Aci was intended to “aid the

citizen’s self-protection, assist in law enforcement

investigations and provide a deterrence for offenders. .

(R. 22, at 30; J.A.1, at 78.) Representative Turner further

summarized the intent of the Act as follows:

The intent of legislation establishing sex offender

registry is generally fourfold. Provide a tool for

law enforcement officials to use in the

investigations. Aid in citizen self protection. Serve

as a deterrent effect on offenders by ending their

anonymity in the community, and provide legal

grounds for holding known offenders in

suspicious circumstances.

(R. 22, at 30; J.A.1, at 78; see also R. 22, at 32: J.A.1, at 80.)

The Senate sponsor of the bill, Senator Crow, repeatedly

stated that the Act was intended to deter convicted sex

offenders from traveling to Tennessee and encourage

convicted sex offenders to leave Tennessee. (R. 22, at 35,

42. 49, 55, 57; J.A.1, at 83, 90, 97, 103, 105.) Senator Crow

believed that with passage of the Act “we'll see sex offenders

leaving Tennessee and you won't see them coming in.”

(R. 22, at 35; J.A.1, at 83.)

The state legislators repeatedly indicated that the Act

was intended to deter sexual offenses and make it easier to

re-incarcerate them if deterrence fails. For instance,

Representative Turner also stated:

4

And this ts the procedure to establish and make a

statement to the state of Tennessee that we do not

want these people, these pedophiles and repeat

offenders to continue to repeat this offense in the

state of Tennessee without answering the call,

losing their probation, losing their parole, being

reincarcerated and recharged, unfortunately after

another offense, or sometimes preventing the

olfense trom occurring again.

(R. 22, at 47; J.A.1, at 95.) And Senator Rochelle stated that

the Act provided “an opportunity to take a large step to

prevent reoccurrence of sexual offenses. .. 2’ (/d.) In short,

the legislative history contains numerous indications that

deterrence of crime and deterrence of travel to and residence

in this state by sexual offenders — by imposition of heavy

registration and monitoring burdens, the threatened and

actual release to the public of Sex Offender Registry

information, and the threat of criminal sanctions for

violations of the Act — were primary goals of the Act.

The Act imposes considerable registration and

monitoring requirements on convicted sexual offenders who

have been released from custody, regardless of type of

offense.’ (R. 22, Def.’s Add. at 2; J.A.1, at 49.) The Act

requires Offenders to place themselves on the Sex Offender

Registry within ten days of their release and to respond to

quarterly requests for information updates within ten days

of the receipt of such requests, (R. 22, Def.’s Add. at 3-4;

J.A.1, 50-51.) The information that must be provided by

registrants includes name, aliases, driver's license

1. The Act covers a wide array of sexual offenses, from

Statutory rape and solicitation to incest and aggravated rape. (R. 22,

Det.'s Add. at 2-3; J.A.1, at 49-50.) Unlike some other states’ versions

of “Megan's Law,” Tennessee's version does not differentiate

between types of offenses nor between levels of risk but rather

applies all provisions of the Act to all types of the targeted offenses

5

information, Social Security Number, race and gender, home

address and length of residence, and name and address of

current employer and length of employment, and may include

a current photograph. (R. 22, Def.’s Add. at 4, 19, 24-25;

J.A.1, at 51, 67, 72-73; Tenn. Code Ann. § 40- 39-103 (1999

Supp.).) In addition, registrants must notify the Tennessee

Bureau of Investigation (“the TBI”) every ume Sex Offender

Registry information changes (even temporarily, which ts

defined to be a period longer than ten days), and registrants

are subject to random checks by the TBI at any time to verify

information submitted. (R. 22, at 19, 23, 27, J.A.1, at 67,

71. 75.) In addition to the TBI’s quarterly updates and

constant threat of random verification checks, the TBI ts

required to issue press releases, public service

announcements, and engage in other public information

activities “to ensure that all sexual offenders are informed

and periodically reminded of the registration and verification

requirements and sanctions of this chapter.” (R. 22, Def.’s

Add. at 5: J.A.1, at 52 (emphasis added), see also Tenn. Code

Ann. § 40-39-105(e) ( 1997).)

According to the TBI's Standard Operating Procedures

for the Act, the TBI is to distribute a list of registrants

(including residence and employer addresses and other

identifying information) to each registrant’s local police,

sheriff, and district attorney at least quarterly. (R. 22, at 16,

J}.A.1, at 64.) The TBI is also to report to the local district

attorneys any registrants in violation status under the Act

and is to request that charges be brought against such

offenders (id.), and request that such offenders be investigated

and apprehended by the local police. (R. 22, at 5; J.A-1,

at 52.)

Failure to register under the Act or otherwise comply

with the terms of the Act constitutes a misdemeanor tor the

first violation and constitutes grounds for revocation of parole

or probation. (R. 22, at 6-7, 20; J.A.1, at 53-54, 68.)

Subsequent violations of the Act are felonies. (/d.) According

6

to an amendment that took effect July 1, 1996, the TBI may

present evidence of alleged violations by affidavit in

prosecutions for violations of the Act. (R. 36, Def.’s 2d Add.

at 281; J.A.2, at 376.)

The Act imposes potentially lifelong requirements and

restricuons on all targeted offenders. (R. 22, Det.’s Add.

at 6; J.A.1, at 53.) Ten years after release, the Act allows a

registrant to petition the local circuit court for removal from

the Sex Offender Registry, but a registrant may be removed

from the Registry only if the court finds that (a) the registrant

has complied with the Act, (b) is rehabilitated, and (c) poses

no threat to society; absent such findings, registrants remain

subject to the Act's requirements until their death. (R. 22,

Def.’s Add. at 6, 20, 27; J.A.1, at 53, 68, 75.) Therefore,

every Offender falling under the Act’s broad scope is

automatically subject to a minimum ten-year term of

continual registration and monitoring that can be removed

only if a very high threshold is met, regardless of the nature

and severity of the crime, regardless of past offense history,

regardless of amount of time served and conduct while in

custody, and regardless of condition on release.

Under the Act, information contained in the Sex Offender

Registry may be provided to the general public whenever

the TBI or local law enforcement officials deem the release

of such information “necessary to protect the public” or “in

the interest of public safety.” (R. 22, Def.’s Add. at 5, 21;

J.A.1, at 52, 69.) No further guidance is given to law

enforcement officials as to when the release of registrant

information is proper, and law enforcement officers are

immune from liability for the release of Registry information

when done in good faith. (R. 22, Def.’s Add. at 5-6, 17-22;

J.A.1, at 52-53, 65-70.) As the District Court first hearing

this case noted, “[nJo guidelines or procedures exist to rein

in this broad power held by law enforcement.” (R. 56, Mem.

of Ct. at 3; J.A.2, at 564; App. B at 46a-47a.) Nor is any

catia iy

le i i ti i

7 n -_ ry,

ee ee a ee —— ee ee te

7

provision made for any record-keeping of to whom information

is released. Also, the Act does not require that a registrant be

given any notice before or after a public disclosure of Registry

information by law enforcement, nor is a registrant given any

administrative or judicial right to protest the release of Registry

information at any time. (R. 22, Def.’s Add. at 1-7, 17-22, 26-

27; J.A.1, at 48-54, 65-70, 74-75.)

The public notification provisions of the Act significantly

alter both the amount of offender information available to the

public and the procedure for the release of information. Prior to

the Act, almost all information about paroled offenders was

confidential. Pursuant to Tenn. Code Ann. § 40-28-119(c), the

Board of Parole is given authority to make rules regarding the

privacy and release of parolee records. Pursuant to this rule-

making authority, the Board of Parole issued Administrative

Rule 11G0-i-1-.14 (App. E at 9la-95a), which provides that

virtually all of the information that is on the Registry would

otherwise be confidential. Indeed, all personal parolee

information held by the Parole Board is confidential and may

not be released to the public, except for Social Security numbers

that may be released to employers, and may be released to law

enforcement officials only to aid in investigations. See Tenn.

Admin. Rule 1 100-1-1-.14 (1995); App. E at 91a-95Sa. Therefore,

the Board of Parole does not release any of the information

contained in the Registry to the general public.

Furthermore, information in the Sex Offender Registry

would not necessarily otherwise be in the State’s records. The

Tennessee Department of Corrections is not mandated to record

Social Security numbers, driver’s licence numbers, aliases,

employment locations, lengths of employment, or lengths of

residence at various locations, nor to maintain current inmate

photographs.’ See Tenn. Code Ann. § 4-6-140(a); App. E

2. As discussed above, pursuant to statutory authority, the

Parole Board has designated virtually all of the information in the

(Cont'd)

8

at 67a. Furthermore, neither the Corrections Department nor

the Parole Board possesses, Once custody and supervision

have ended, current home and work address information or

current photographs, and neither agency would know if a

person had changed his or her name or had begun using an

alias (as the person could legally do), because, of course,

the records of the Department of Corrections and the Board

of Parole are not updated after an individual is no longer

under their supervision. Thus, information in these agencies’

files may be incorrect and thus of little significance to the

ex-convicts or parolees. It is only through the constant

monitoring of registrants by the TBI and local officials that

the State of Tennessee remains aware of the registrants’

whereabouts and appearance.

Furthermore, the Act removes the greater protections that

previously existed regarding the release of offender

information to the public. Information is disclosed by the

Department of Corrections only on written request stating

why the information is requested, and individual correctional

institutions are not allowed to disclose information, thus, a

record of the persons requesting information exists, the

Department kas the right to review and decline requests, and

the public must come to the Department rather than the

Department initiating disclosures. See Tenn. Admin. Rule

0420-1-2-.01 to -.06 (1989); App. E at 87a-91a. Moreover, a

charge of $10.00 plus 20 cents per copy requested must be

paid to the Department of Corrections. /d. As an added

protection for parolee records, the Parole Board

(Cont'd)

Sex Offender Registry to otherwise be confidential after supervision

of a sexual offender ends. See Admin. Rule 1100-1-1-.14 (1995);

App. E at 9la-95a. The Correction Department’s rules specifically

provide that information made confidential by law will not be

released. Tenn. Admin. Rule 0420-1-2-.01 (1989); App. E at 87a.

Thus, the Parole Board's rules may supersede the Correction

Department’s rules if a parole occurs.

henna Whi din Risa a Diag arr teA oo nerdy

wen en bln wien Date set BD

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SN RRS RRR pia) len Stl nt FO /.

;

9

retains authority to determine whether a release of requested

information would endanger a parolee or others

and, if so, to decline the request. Tenn. Admin. Rule 1100-

1-1-.14¢1)(a)(10) (1995); App. E at 92a.

With passage of the Act, the police may now, on their

own initiative and without any request by the public, disclose

a registrant’s aliases, current home address and telephone

number, current work address and telephone number, length

of time at a given residence and job, and Social Security

number to anyone and not simply employers, and may

distribute current photographs. Such information was not

subject to voluntary disclosure to the public before passage

of the Act.

Once information has been released, members of the

public may do with the information as they wish because

the Act places no constraints on the public’s use of Registry

information. They may, for instance, place the information

on the Internet, in ads in local newspapers, on billboards, or

publish the information through any other medium. The

public may very well use the information to locate offenders

and their families so that they can attack them, harass them,

or otherwise seek to drive them from the community, as has

happened on several occasions. See Doe v. Pataki, 940

F. Supp. 603, 608-11 (S.D.N.Y. 1996), aff'd in part and rev'd

in part, 120 F.3d 1263 (2d Cir. 1997) (detailing numerous

incidents of vigilantism, at times on persons of mistaken

identity, after the public was notified of offenders in their

localities); see also James Q. Whitman, What is Wrong with

Inflicting Shame Sanctions ?, 107 Yale L.J. 1055, 1088 n.151

and accompanying text (1998). The Act places no constraints

on how members of the public may use the Registry

information given to them and provides for no sanctions in

the case of misuse of Registry information.

LO

In January, 1990, betore passage of the Act, Petitioner

entered a guilty plea to aggravated sexual battery and received

a sentence of twelve years incarceration. (R. 18, Ist Am.

Compl. at 1-2; J.A.1, at 37-38; R. 22, Det.’s Add. at 279;

J.A.1, at 316.) The state of Tennessee released Petitioner from

custody in September of 1997, and, on his release, Petitioner

was required to place himself on the Tennessee Sex Offender

Registry or face criminal sanctions. It is undisputed that the

Act is being applied retroactively to Petitioner.

In anticipation of his release from custody and

concomitant registration under the Act, Petitioner filed a pro

se complaint against the Governor of the State of Tennessee

in his official capacity seeking relief from the Act on grounds

that the Act violated Petitioner’s constitutional rights.

(R. 1, Compl.) The District Court appointed counsel for

Petitioner, and Petitioner then filed an Amended Complaint

alleging claims under 42 U.S.C. § 1983 and secking

permanent injunctive relief from the Act. (R. 18, Am. Compl.)

Respondent and Petitioner filed cross-motions for

summary judgment, and Petitioner filed a motion for

preliminary injunction pending the district court’s ruling on

the motions for summary judgment. (R. 20, Respondent’s

Mot. to Dismiss, or in the Alternative, for Summ. J.; R. 28

Petitioner's Mot. for Summ. J.; R. 51, Petitioner’s Mot. for

Prelim. Inj.) On September 17, 1997, the District Court

preliminary enjoined the State of Tennessee from releasing

Registry information about Petitioner to the public. (R. 54,

Order.) On September 25, 1997, the District Court entered a

final order with a memorandum opinion in which the court

partially granted and partially denied both motions for

summary judgment: the District Court, without specific

discussion, held the registration provisions of the Act to be

constitutional; however, the District Court held that the public

notification provisions of the Act violated the due process

rights of Petitioner. (R. 57, Final Order.)

Re ae

‘ented

PSE

OS ck a GPE LESS LEAL EARN ADE he SCS

a3

Oey Pes

On September 30, 1997, pursuant to 28 U.S.C. § 1291,

Respondent appealed to the Sixth Circuit the District Court's

holding that the public notification provisions of the Act

violated Petitioner's due process rights. (R. 58, Respondent's

Notice of Appeal.) On October 20, 1997, Petitioner filed a

cross-appeal, asking the Sixth Circuit to review the District

Court's holding that the registration provisions of the Act

were constitutional and that the public notification provisions

of the Act could be constitutionally applied to Petitioner if a

due process hearing were conducted before public release

of Registry information, (R. 67, Petitioner's Notice of

Appeal.) Petitioner specifically asked the Sixth Circuit to

invalidate the Act in its entirety on grounds that, among

others, (a) the Act was intended as a punitive measure in

violation of the Ex Post Facto and Double Jeopardy Clauses

of the Constitution and (b) the Act violates Petitioner's due

process rights. In the alternative, Petitioner asked the Sixth

Circuit to uphold the District Court’s ruling that a due process

hearing must be conducted before release of Registry

information about Petitioner to the public.

Following oral argument, the Sixth Circuit issued its

opinion in this matter on October 4, 1999. A majority of the

Sixth Circuit panel upheld the District Court’s ruling on the

registration provisions of the Act and reversed the District

Court's ruling that the public notification provisions of the

Act were unconstitutional. The majority found that the Act

Was not punitive in its intent or effects and that the Act did

not infringe on a protected interest of Petitioner. Accordingly,

the Sixth Circuit upheld the Act in its entirety. Circuit Judge

Jones dissented, stating that a due process hearing should be

held before the release of Registry information to the public.

Judge Jones further stated that the case should have been

remanded to the District Court for supplemental

constitutional findings because the District Court had limited

its discussion to the due process issue.

12

REASONS FOR GRANTING THE WRIT

An essential premise of our constitutional system is that

persons should be given fair warning of the punishments they

may suffer for their acts. See Weaver v. Graham, 450 U.S.

24, 30-31, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981). The

Ex Post Facto clause of the U.S. Constitution thus proscribes

the imposition of punishment after the commission of an act.

See U.S. Const., art. 1, § 10. “To fall within the ex post facto

prohibition, two critical elements must be present: first, ‘the

law must be retrospective, that is, it must apply to events

occurring before its enactment’; and second, ‘it must

disadvantage the offender affected by it.’ ” Miller v. Florida,

482 U.S. 423, 430, 107 S. Ct. 2446, 96 L. Ed. 2d 351 (1987)

(citation omitted). The imposition of additional punishment

after a conviction likewise violates the Ex Post Facto clause.

See Weaver, 450 U.S. at 28. Similarly, a law violates the

Double Jeopardy clause of the U.S. Constitution if it imposes

a second punishment for a previously-punished offense.

See, e.g., Hudson v. United States, 522 U.S. 93, 98-99,118

S. Ct. 488, 139 L. Ed. 2d 450 (1997).

In order to determine whether a law violates the Ex Post

Facto or Double Jeopardy Clause, a court must first determine

whether the law was intended as punishment and then, if no

punitive intent is found, whether the law effectively imposes

punishment. See Hudson v. United States, 522 U.S. 93, 99,

118 S. Ct. 488, 139 L. Ed. 2d 450 (1997); Kansas vy.

Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 138 L. Ed.

2d 501 (1997); Austin v. United States, 509 U.S. 602, 113 S.

Ct. 2801, 2811-12, 125 L. Ed. 2d 488 (1993); De Veau v.

Braisted, 363 U.S. 144, 160, 80 S. Ct. 1146, 4 L. Ed. 2d

1109 (1960). A law is punitive if it is intended to

serve, or effectively serves, retributive or deterrence goals.’

3. Legislation may not avoid the punishment label simply by

claiming a preventative rather than retributive goal. “Punishment

(Cont'd)

sei earns emraaanaaaaeimcaaearateaeaaiiiieatei ial

13

See, e.g., Kansas v. Hendricks, 521 U.S. 346, 361, 117 S. Ct.

2072, 138 L. Ed. 2d 501 (1997) (retribution and deterrence are

the “two primary objectives of criminal punishment”).

“Retribution and deterrence are not legitimate nonpunitive

governmental objectives.” Bell v. Wolfish, 441 U.S. 520, 539

n.20, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979): Hendricks, 521

U.S. at 373 (Kennedy, J., concurring) (““We should bear in mind

that while incapacitation is a goal common to both the criminal

and civil systems of confinement, retribution and general

deterrence are reserved for the criminal system alone.”).

The majority of the Sixth Circuit panel disregarded the

legislative history behind the Act, as well as Supreme Court

precedent for determining legislative intent, when it decided

that the Act was not intended as a punitive measure. This

Case presents a proper forum for the Supreme Court to declare

the role of legislative history in the determination of punitive

intent. The legislative history involved in this case evinces a

strong punitive intent that was not retracted or contradicted

(Cont'd)

serves several purposes: retributive, rehabilitative, deterrent — and

preventative.” United States v. Brown, 381 U.S. 437, 458-59, 85

S. Ct. 1707, 14 L. Ed. 2d 484 (1965).

In determining whether punitive or nonpunitive

objectives underlie a law, United States v. Brown

established that punishment is not restricted purely to

retribution for past events, but may include inflicting

deprivations on some blameworthy or tainted individual

in order to prevent his future misconduct. This view is

consistent with the traditional purposes of criminal

punishment, which also include a preventive aspect.

Nixon v. Administrator of General Svcs., 433 U.S. 425, 480, 97

S. Ct. 2777, 53 L. Ed. 2d 867 (1977). Consistent with this rule, in

1967, this Court found that a law designed to prevent future offenses

by sexual offenders to be punitive primarily because of a prevention

goal, regardless of any retributive intent. See Specht v. Patterson,

386 U.S. 605, 329-30, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967).

14

by any expression of purpose in the text of the Act.* Petitioner

submits that this legislative history is the best evidence of

legislative intent, absent an express purpose in the text of

the Act, and that such history provides a much better guide

for determining intent than judicial analysis of the text and

structure of an act or judicial speculation and supposition

on what might be the proper or practical goals served by

an act.

Another essential premise of our constitutional system

is that persons should not be deprived of their protected

interests without due process of law. U.S. Const., amend.

XIV; see, e.g., Ingraham v. Wright, 430 U.S. 651, 674, 97 S.

Ct. 1401,51 L. Ed. 2d 711 (1977); Board of Regents v. Roth,

408 U.S. 564, 569-70, 92 S. Ct. 2701, 33 L. Ed. 2d 548

(1972). There is no dispute that the Act as presently written

does not provide Petitioner with notice and an opportunity

to be heard with regard to placement on the Registry and

release of Registry information to the public. See Wisconsin

v. Constantineau, 400 U.S. 433, 437, 91 S. Ct. 507, 27

L. Ed. 2d 515 (1971) (notice and opportunity to be heard

essential elements of due process); Mullane v. Central

Hanover Bank & Trust, 339 U.S. 306, 314, 70 S. Ct. 652,

94 L. Ed. 865 (1950). However, whereas Petitioner asserted

and the District Court found that the Act implicated a

protected interest, Respondent asserted and the majority of

the Sixth Circuit panel found that the Act did not implicate a

protected interest. The Supreme Court should grant this

4. The Sixth Circuit, in its analysis of the intent behind the

Act, properly disregarded an amendment to the Act in 1997 that

added an express statement of purpose. See App. A at |14a-16a, 20a;

International Brotherhood of Teamsters v. United States, 431 U.S.

324, 354 n.39, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977) (intent of

legislature that enacted the statute in question controls); accord

Oscar Meyer & Co. v. Evans, 441 U.S. 750, 758, 99 S. Ct. 2066, 60

L. Ed. 2d 609 (1979); United States v. Wise, 370 U.S. 405, 411, 414,

82 S. Ct. 1354, 8 L. Ed. 2d 590 (1962).

Pea A IAL AR IM Mech CER EEE AA Se NG AX NPR DIG PRC Gah IRANI

ier PO 10s od te RE Ow

Lee pe .

15

Petition in order to decide this important question of federal

law concerning the scope of Petitioner’s protected interests

and whether such interests are implicated by the Tennessee

Act and similar other laws that impose significant registration

and monitoring requirements on offenders who have

completed their criminal sentences.

I.

The legislative history, structure, and text of the Act reveal

a punitive intent.

As detailed in the Statement of the Case above, the

sponsors of the Act clearly and repeatedly stated that the

Act was intended to deter future crimes by sexual offenders

and was intended to deter sexual offenders from residing in

or even traveling to Tennessee. (R. 22, Def.’s Add. at 30, 32,

35, 42, 49, 55, 57; J.A.1, at 78, 80, 83, 90, 97, 103, 105.)

Those offenders stubborn enough to remain were warned that

they would no longer be allowed to live an anonymous “cloak

and dagger” lifestyle and that their acts would not go

“unpunished.” (R. 22, Def.’s Add. at 32; J.A.1, at 80.) The

requirements and conditions of the Act were intended to be

so burdensome, unpleasant, stigmatizing, and embarrassing

— so punishing — that offenders would seek to avoid

Tennessee or leave Tennessee if already here.

The Sixth Circuit improperly ignored this substantial

evidence of punitive intent. See App. A at 14a-20a (no

discussion of legislative history). The statements by the Act’s

sponsors in particular were “an authoritative guide to the

Statute’s construction,” North Haven Bd. of Educ. v. Bell,

456 U.S. 512,526, 102 S. Ct. 1912, 72 L. Ed. 2d 299 (1982),

that deserved “to be accorded substantial weight,” Federal

Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 564,

96 S. Ct. 2295, 49 L. Ed. 2d 49 (1976) (citations omitted).

See also, e.g., H.J. Inc. v. Northwestern Bell Tele., Co., 492

16

U.S. 229, 246-47, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989)

(citing statements by sponsor of the RICO Act as evidence

of congressional intent); Orloff v. Willoughby, 345 U.S. 83,

98, 73 S. Ct. 534, 97 L. Ed. 842 (1953) (Frankfurter, J.,

dissenting) (“Whatever we may think about the loose use of

legislative history, it has never been questioned that reports

of committees and utterances of those in charge of legislation

constitute authoritative exposition of the meaning of

legislation.”).

Consideration of the legislative history is proper and

important. In the case of Kennedy v. Mendoza-Martinez, 372

U.S. 144, 83S. Ct. 554, 9 L. Ed. 2d 644 (1963), for instance,

the Supreme Court found the legislative history of an act,

including congressional pronouncements and debate, to

indicate conclusively a punitive purpose behind an act. See

id. at 169-84; see also, e.g., Artway vy. Attorney General, 81

F.3d 1235, 1264 (3d Cir. 1996) (examining legislative history

to determine “actual purpose” behind New Jersey’s version

of Megan’s law). As the majority in the Sixth Circuit noted,

the Supreme Court’s decision in Hudson v. United States,

522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997),

directed courts to examine whether legislatures expressly or

impliedly revealed a punitive or regulatory intent. /d. at 99.

In this case, both sponsors of the Act, among others, expressly

pronounced that the Act was to serve a deterrence purpose,

and the legislative history contains no evidence disavowing

this punitive intent. Where the text of an act is silent as to its

intent, then pronouncements of legislators should be at least

as good an indicator of legislative intent as that resulting

from judicial construal of the text and structure of the act —

particularly in a case such as this, where the Act’s sponsors

explicitly stated the Act’s purpose.

Justice Stevens has explained why it is reasonable and

necessary to rely on the statements of a bill’s sponsors and

17

reports from congressional committees when determining

congressional intent:

Legislators, like other busy people, often

depend on the judgment of trusted colleagues

when discharging their official responsibilities. If

a statute ... has bipartisan support and has been

carefully considered by committees familiar with

the subject matter, Representatives and Senators

may appropriately rely on the views of the

committee members in casting their votes. In such

circumstances, since most members are content

to endorse the views of the responsible

committees, the intent of those involved in the

drafting process is properly regarded as the intent

of the entire Congress.

Bank One Chicago, N.A. v. Midwest Bank & Trust Co., 516

U.S. 264, 116 S. Ct. 637, 643, 133 L. Ed. 2d 635 (1996)

(Stevens, J., concurring). In this case, the clear statements

of the Act’s sponsors and other legislators should have been

given substantial weight and should have acted as

authoritative guides to the conclusion that the Tennessee

legislature intended the Tennessee Sexual Offender

Registration and Monitoring Act to serve punitive purposes.

The majority of the panel likewise ignored the substantial

evidence of punitive intent found in the text of the Act and

in other provisions of the Tennessee Code to arrive at the

conclusion that it could “find no indication that the Tennessee

legislature intended the Act to be a punitive measure.”

App. A at 15a. A fair reading of the text and structure of the

Act would have bolstered the conclusion from the legislative

history that the Act was meant to serve punitive purposes.

First, the legislature’s classification of the Act as a part

of the criminal code (Title 40 on criminal procedure)

18

strongly supports the conclusion that the Act was intended

as part of Tennessee's criminal justice scheme. See Kansas

v. Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 138

LL. Ed. 2d 501 (1997) (placement of statute within civil or

criminal code significant to determining legislative intent).

Second, the use of the rehabilitation requirement for removal

from the Registry is intended to serve a goal typically

associated with the penal system. Third, the requirement that

the TBI constantly remind offenders of their obligations

under the Act, and of the criminal sanctions for violation of

the Act (including revocation of parole and reapprehension),

see Tenn. Code Ann. § 40-39-105(e) (1997), strongly

supports the conclusion that deterrence was a central goal

behind the Act: the legislature wanted sexual offenders

continually reminded that they are under the constant

supervision of the TBI and that they are constantly under

the threat of sanctions if they should fail to comply with the

Act in any way. Finally, the legislature’s classification of

lifelong community supervision as a form of punishment

under another statute (Tenn. Code Ann. § 39-13-524;

App. E at 69a-70a) further bolsters the clear conclusion that

registration and monitoring under the Act is a punitive

measure.”

As indicated by the repeated statements of the Act’s

sponsors, the text of the Act, its placement in the criminal

code, and the similarity between its provisions and those in

other statutes acknowledged to be punishment, and by the

noticeable absence of any statements to the contrary within

the legislative history, the punitive goal of deterrence was

central to the Act’s introduction and passage and was not

merely incidental to any desired regulatory effects.

5. In Tenn. Code Ann. § 39-13-524, the legislature specifically

acknowledged that lifelong community supervision was a

punishment “in addition to the punishment authorized by the specific

statute prohibiting” the targeted conduct. Tenn. Code Ann. § 39-13-

524; App. E at 69a-70a.

-e MO LK

19

See Bateson v. U.S. ex rel. Bd. of Trustees, 434 U.S. 586,

591, 98 S. Ct. 873, 55 L. Ed. 2d 50 (1977) (relying on

“authoritative Committee Reports” to determine

congressional intent behind the Miller Act and noting

significantly that “[t}here is nothing to the contrary [to that

intent found in the reports] anywhere in the legislative

history”). The legislature repeatedly expressed an intent that

the Act serve the punitive goals of deterrence, retribution

through shaming, and even rehabilitation through its

requirement of a finding of rehabilitation as a precondition

to removal from the Registry, and this expression of intent

should have been determinative in the intent-effects analysis

conducted by the Sixth Circuit.

Il.

The Act infringes on Petitioner’s protected interests

without due process.

The District Court held that the Act implicated state and

federal privacy rights and the right to seek employment of

one’s own choosing. (R. 56, Mem. of Ct. at 6-8; J.A.2, at

567-69.) The District Court also held that the stigma and

injury to one’s reputation that would result from disclosure

of Registry information and the concomitant loss of privacy

and employment rights satisfied the “stigma plus” test

established in Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155,

47 L. Ed. 2d 405 (1976) and Wisconsin v. Constantineau,

400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971), for

determining when due process protections are triggered.

(R. 56, at 8-9; J.A.2, 569-70.) Because protected interests

were implicated but not protected, the District Court held

that the public notification provisions of the Act “violate the

due process rights of plaintiff.” (R. 57, Final Order; J.A.2, at

578.) To remedy this flaw, the District Court stated that the

Plaintiff should be given an opportunity to be heard before

public disclosure of Registry information and should be

20

allowed to present evidence why such disclosure was not

necessary to protect the public, and that the state should bear

the burden of persuasion at the hearing. (R. 56, Mem. of Ct.

at 9; J.A.2, at 570; App. B at 54a-56a.) In the District Court's

opinion, “(dissemination of information from the sexual

offender registry without the control of anyone other than

local law enforcement and without an opportunity for hearing

offends basic concepts of fairness.” (R. 56, at 10; J.A.2, at

571 App. B at 55a-56a.)

The majority of the Sixth Circuit disagreed with the

District Court and held that the Act did not infringe on any

protected interest of Petitioner. Petitioner submits that the

Sixth Circuit erred and that this Court should find that the

Act does jeopardize protected interests of Petitioner that are

entitled to the protections of the Due Process Clause.

First, and most fundamentally, if the Court finds that

the Act was intended as a punishment, then the Act intrudes

on Petitioner’s liberty interest. See, e.g., Ingraham v. Wright,

430 U.S. 651, 673-74, 97 S. Ct. 1401, 51 L. Ed. 2d 711

(1977).

Second, the Court should find that Petitioner has an

interest in being free from the public stigma and constant

supervision that the Act imposes on his personal privacy,

liberty, and ability to seek and retain employment. See Paul

v. Davis, 424 U.S. 693, 708-09, 96S. Ct. 1155, 47 L. Ed. 2d

405 (1976); Wisconsin v. Constantineau, 400 U.S. 433, 437,

91S. Ct. 507, 27 L. Ed. 2d 515 (1971). The Act is intended

to end registrants’ “anonymity” and ultimately drive them

from the community. (R. 22, Def.’s Add. at 32; J.A.1, at 80.)

The state legislature specifically contemplated that, through

the Act, employers would be notified that they are employing

convicted sexual offenders (R. 22, at 57; J.A.1, at 105), and

the public at large will also be told this fact, reasonably

causing employers to fear retaliation for employing such

individuals. The Act imposes a stigma on registrants that

21

was not otherwise present simply because of their crime and

conviction, both through the Act’s imposition of lifetime

supervision by the police for supposedly repetitive and

compulsive behavior and through its notification provisions,

by which the police may inform the public that (in the police’s

opinion) a dangerous offender is in their midst who is to be

watched and avoided at all times. Being convicted of a crime,

particularly a serious crime, may well be stigmatizing in and

of itself. However, other criminals, even those convicted of

crimes more serious than those included in the Registry, once

they have completed their sentences, are not constantly under

the threat of community ridicule and scorn by actions of the

police without notice or recourse, are not branded worthy of

continual, lifelong police supervision, are not required to

inform the police of their every movement for the rest of

their lives (subject to possible immediate apprehension even

for accidental violations of the Act), and are not generally

made to prostrate themselves before law enforcement

officials for the rest of their lives. Such other criminals are,

in a very real sense, free once they are released from custody

and supervision; under the Act, however, sexual offenders

— regardless of the type and seriousness of offense — are

never free from supervision, suspicion, scorn, and even, in a

sense, Officially-sanctioned harassment.

Once the public is put on notice of the supposedly

dangerous individual and his whereabouts, the damage is

done. “Notification puts the registrant’s livelihood, domestic

tranquility, and personal relationship with all around him in

grave jeopardy.” E.B. v. Verniero, 119 F.3d 1077, 1107

(3d Cir. 1997), cert. denied, 118 S.Ct. 1039 (1998); see also

Doe v. Pataki, 120 F.3d 1263, 1284 (2d Cir. 1997), cert.

denied, 522 U.S. 1122 (1998) (“The released sex offender

living in a small community might well become a

pariah... .”). That is why the New Jersey Supreme Court in

Doe v. Poritz, 662 A.2d 367, 421 (N.J. 1996), and the District

Court below properly concluded that the stigma, possibility

22

of harm, and damage to one’s reputation and livelihood from

disclosure under the Act pose a sufficient threat of intrusion

on protected interests that a due process hearing must occur

before public notification may occur, so that the accuracy of

the disclosure and the need for it can be filtered through a

judicial check while also giving the registrant a chance to

object and respond. Cf. Kallstrom v. City of Columbus, 136

F.3d 1055, 1063 (6 Cir. 1998) (city’s disclosure of home

addresses of police officers to persons likely to seek revenge

implicated a constitutionally protected liberty interest).

Furthermore, the Act’s alteration of registrants’ legal

status, when combined with the stigma concomitant to

placement on the Registry and/or public release of Registry

information, should trigger the protections of the “stigma

plus” test of Paul v. Davis, 424 U.S. 693, 708-09, 96 S. Ct.

1155, 47 L. Ed. 2d 405 (1976). See Doe v. Pataki, 3 F. Supp.

2d 456, 467-68 (S.D.N.Y. 1998) (“In light of these

requirements placed on registrants, there can be no genuine

dispute that registration alters the legal status of all convicted

sex offenders subject to the Act for a minimum of ten years

and, for some, permanently. These requirements obviously

encroach on the liberty of convicted sex offenders, and

therefore, they suffer a tangible impairment of a right in

addition to mere harm to reputation.”). By altering the legal

status of previously-convicted sex offenders from the status

they would have otherwise had simply as released offenders

who have completed their sentences — by subjecting this

class of offenders to added reporting requirements and new

criminal liability not threatened against other classes of

offenders, by the constant monitoring of offenders’

whereabouts, employment, aliases, and appearance; and by

the threat of unknown publication of Registry information

by law enforcement at any time to anyone — without due

process of law, the Act runs afoul of the Fourteenth

Amendment.

23

Third, Petitioner has a right to pursue gainful

employment that is affected by the Act. See Board of Regents

v. Roth, 408 U.S. 564, 573-74, 92 S. Ct. 2701, 33 L. Ed. 2d

548 (1972); Lange-Kessler y. Department of Education of

the State of New York, 109 F.3d 137, 140 (2d Cir. 1997). As

discussed immediately above, the release of information to

employers, as contemplated by the legislature (R. 22, Def.’s

Add. at 57; J.A.1, at 105) and as allowed by the text of the

Act, will greatly interfere with Petitioner’s right to seek and

gain employment. As the District Court Stated, “[t}here is no

question that prospective employers would not want to hire

someone they thought posed a danger to society, thereby

effectively foreclosing employment Opportunities .. .”

(R. 56, Mem. of Ct. at 8; J.A.2, at 569.) If the Act is not

intended to and will not affect an offender’s employment

(either by casting him in an unfavorable light to employers

and customers or making him susceptible to added

monitoring and even reproach at his job), then why is

employment information contained in the Registry and made

subject to public disclosure?

Fourth, Petitioner should have a federally-protected

privacy interest in the nondisclosure of personal matters and

information gathered by the state that was not public

information prior to the Act and in being free from state

intrusions into his privacy. See U.S. Dep't of Justice vy,

Reporter’s Comm'n for Freedom of the Press, 489 U.S. 749,

767, 109 S. Ct. 1468, 103 L. Ed. 2d 774 (1989); see also

Paul P. v. Verniero, 170 F.3d 396, 404 (3d Cir. 1999) (finding

a privacy interest in the nondisclosure of one’s home address

but finding state’s interest in disclosing the address to be

compelling). Here important non-public and personal

information is affirmatively disclosed by the police;

information is not simply made available to interested

citizens who pursue a valid request for information. But for

the disclosure of Registry information, the community would

have no statutory right to find out an offender’s home or

24

work address after the offender’s release or to current

photographs, name and alias information, nor driver’s license

or Social Security number information if the offender had

been paroled. See Abernathy v. Whitley, 838 S.W.2d 211, 214

(Tenn. Ct. App. 1992) (noting that there is “no generally

recognized state or federal constitutional right of access to

public records); see also Whalen v. Roe, 429 U.S. 589, 598-

600, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977). Also but for the

Act, the public would have to initiate and pursue any requests

for information (presumably based on some specific reason

or fear) subject to the protections provided by the state

administrative rules and regulations. With passage of the Act,

Petitioner’s personal information may now be disseminated

widely within acommunity by the police acting in their sole

and unchecked discretion to determine who should be given

registrant information.® Through such dissemination, the Act

does away with Petitioner’s “right to be let alone,” Olmstead

v. United States, 277 U.S. 438, 478, 48 S. Ct. 564, 72 L. Ed.

944 (1928) (Brandeis, J., dissenting), and his right to be free

of unwarranted state intrusions into his privacy, U.S. Dep’t

of Justice v. Reporter’s Comm’n for Freedom of the Press,

489 U.S. 749, 767, 109 S. Ct. 1468, 103 L. Ed. 2d 774 (1989).

Importantly, the Sixth Circuit’s majority opinion in this

case conflicts with a prior decision of the Sixth Circuit in

which the court held that disclosure of personal and family

information of police officers “encroached on [the officers’ }

6. Petitioner’s state privacy interests are likely broader than

those guaranteed by the federal constitution and should be given

even greater protection. See Campbell v. Sundquist, 926 S.W.2d 250,

261 (Tenn. Ct. App. 1996). As acknowledged by the majority of the

panel in the Sixth Circuit, the Tennessee Supreme Court has not

addressed the question of whether the Act infringes on state privacy

rights. Nevertheless, the Sixth Circuit speculated that the state

supreme court would not find a protected interest implicated by the

Act, rather than having certified the question to the state court as

Petitioner had requested.

ee ee ae ee ee ee

25

fundamental rights to privacy and personal security under

the Due Process Clause of the Fourteenth Amendment.”

See Kallstrom v. City of Columbus, 136 F.3d 1055, 1063

(6" Cir. 1998) (city’s disclosure of home addresses of police

officers to persons likely to seek revenge implicated a

constitutionally protected liberty interest). Thus, the Sixth

Circuit has already established that persons have a protected

interest in personal information, where the disclosure of such

information may cause intrusions on personal security. Given

the undisputed record of numerous acts of physical harm

directed at registrants and their families, there can be no

serious dispute that disclosure of personal registrant

information subjects registrants to intrusions into their

personal security that should give rise to due process

protection. See Doe v. Pataki, 940 F. Supp. 603, 608-11

(S.D.N.Y. 1996), aff'd in part and rev'd in part, 120 F.3d

1263 (2d Cir. 1997) (detailing numerous incidents of

vigilantism, at times on persons of mistaken identity, after

the public was notified of offenders in their localities);

see also James Q. Whitman, What is Wrong with Inflicting

Shame Sanctions?, 107 Yale L.J. 1055, 1088 n.151 and

accompanying text (1998).

Finally, as shown by statements in the legislative history,

the Act was intended to interfere with Petitioner’s

constitutional right to travel freely between the states.

See U.S. Const., art. IV, § 2; Attorney General v. Soto-Lopez,

476 U.S. 898, 903, 106 S. Ct. 2317, 90 L. Ed. 2d 899 (1986).

In sum, application of the Act to Petitioner significantly

intrudes on important interests of Petitioner, and Petitioner

requests that the Court grant this Petition to consider whether

these interests should be protected interests under the Due

Process Clause. Federal law requires an opportunity to be

heard when, for example, an automobile is seized by the

government, e.g., United States v. One 1961 Red Chevrolet

Impala Sedan, 457 F.2d 1353, 1356-57 (5th Cir. 1972); Jaekel

26

v. United States, 304 F. Supp. 993, 998-99 (S.D.N.Y. 1969),

yet in this case the State of Tennessee imposes lifelong

registration and monitoring burdens on previously-punished

offenders and allows law enforcement officials wide

discretion to publicize stigmatizing information about these

persons without so much as a parole officer’s opinion that

the person poses any future threat or a letter to the registrant

giving notice of the release of information. Surely a person’s

family, friend, and business relations, and his personal and

familial safety, as well as even his reputation, are deserving

of at least as much protection as a 1961 Chevrolet Impala

receives. See One 196] Red Chevrolet Impala Sedan, 457

F.2d at 1356-57; see generally United States v. Good Real

Property, 510 U.S. 43, 114 S. Ct. 492, 126 L. Ed. 2d 490

(1993) (due process clause requires pre-seizure notice and

meaningful opportunity to be heard except in extraordinary

circumstances).

27

CONCLUSION

As of the present date, all fifty states have adopted some

form of sex offender registration and monitoring act, the great

majority of which apply retroactively and involve public

release of registry information. See Alan R. Kabat, Note,

Scarlet Letter Sex Offender Databases and Community

Notification: Sacrificing Personal Privacy for a Symbol’s

Sake, 35 Am. Crim. L. Rev. 333, App. | (1998). The

Tennessee Act and similar other acts raise foundational issues

of federal law regarding the manner in which the regulation

of undesirable conduct may be balanced against the

punishment of past offenses and about the types of personal

interests and rights that government may infringe without

providing even minimal due process protections. For the

reasons stated above, Petitioner requests that this Petition

be granted so that these important issues of federal law may

be considered.

Respectfully submitted,

PAUL GREGORY MITCHELL

Counsel of Record

DoraMus, TRAUGER & NEY

Attorneys for Petitioner

222 Fourth Avenue North

Nashville, Tennessee 37219

(615) 256-8585