Appendix — Cutshall v. Sundquist

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

DATED, DECIDED AND FILED OCTOBER 4, 1999

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 97-6276/6321

ARTHUR CUTSHALL,

Plaintiff-Appellee/

Cross-Appellant,

Don Sunpguist, Governor of the

State of Tennessee,

Defendant-Appellant/

Cross-Appellee.

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 95-00380 — Thomas A. Wiseman, Jr., District Judge.

Argued: November 5, 1998

Decided and Filed: October 4, 1999

Before: JONES, RYAN, and BATCHELDER,

Circuit Judges.

* * *

Appendix A

OPINION

RYAN, Circuit Judge. The plaintiff, Arthur Cutshall,

challenges the constitutionality of the Tennessee Sex

Offender Registration and Monitoring Act. TENN. CODE

§§ 40-39-101 to -108 (1994). The Act requires sex offenders

to register with law enforcement agencies, and allows law

enforcement officials to release registry information when

necessary to protect the public. Cutshall is subject to the

Act because of a 1990 Tennessee conviction for aggravated

sexual battery. He challenges both the registration and the

notification aspects of the law. While the district court

concluded that the registration provision of the Act does not

violate the United States Constitution, it agreed with Cutshall

that any release of registry information would violate his

constitutional rights unless he is given notice and an

opportunity to be heard. Therefore, the court granted

summary judgment in part for the defendant and in part for

the plaintiff. Both sides appealed.

We are asked to decide whether the Act violates the

United States Constitution, specifically, the Double

Jeopardy, Ex Post Facto, Bill of Attainder, Due Process, or

Equal Protection Clauses; the Eighth Amendment; the

constitutional right to travel interstate; and the constitutional

right to privacy. We must also decide whether the Act

violates the plaintiff's right to privacy under the Tennessee

state constitution. We will reverse in part and affirm in part.

Appendix A

In 1994, Congress enacted, and the President signed into

law, the Jacob Wetterling Crimes Against Children and

Sexually Violent Offender Registration Program. 42 U.S.C.

| § 14071. Under this legislation, the Attorney General of the

United States was required to establish guidelines for state

programs requiring persons convicted of crimes against

minors or crimes of sexual violence to register a current

address with state law enforcement officials. 42 U.S.C.

§ 14071(a)(1)(A). The federal law provides:

The information collected under a State

registration program shall be treated as private

data except that —

j (1) such information may be disclosed to law

enforcement agencies for law enforcement

purposes;

(2) such information may be disclosed to

government agencies conducting confidential

background checks; and

(3) the designated State law enforcement

agency and any local law enforcement agency

authorized by the State agency may release

relevant information that is necessary to protect

the public concerning a specific person required

to register under this section, except that the

identity of a victim of an offense that requires

registration under this section shall not be

released.

Appendix A

42 U.S.C. § 14071(d) (1994) (emphasis added). Under the

federal law, the states were given three years from September

1, 1994, within which to comply. See 42 U.S.C. § 14071(N(1)

(1994). Failure to implement a registration program would

result in the loss of some federal funding. See 42 U.S.C.

§ 14071(f)(2)(A) (1994).

Congress amended the federal law in 1996 to provide

that the registry information may be disclosed for any

permissible state !aw purpose, and that information shall be

released when necessary to protect the public. Further, the

reference indicating that registry information was considered

private was removed. See 42 U.S.C. § 14071(d) (amended

1996).

In 1994, the Tennessee legislature adopted its own

Sexual Offender Registration and Monitoring Act. TENN.

Cope § 40-39-101 to -108. Although the Act has been

amended since the inception of this lawsuit, the 1994

enactment provided for registration with the Tennessee

Bureau of Investigation (TBI) as follows:

Within ten (10) days following release on

probation, parole, or any other alternative to

incarceration; within ten (10) days following

discharge from incarceration without supervision;

within ten (10) days following any change of

residence; and within ten (10) days after coming

into a municipality or county in which the sexual

offender temporarily resides or is domiciled for

such length of time; each sexual offender shall

complete a TBI sexual offender registration/

lB ASS HL RSA ST nai cn dat el OE

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Appendix A

monitoring form and shall cause such form to be

delivered to TBI headquarters in Nashville.

Sexual offender registration/monitoring forms

shall require disclosure of the following

information:

(1) Complete name as well as any alias;

(2) Date and place of birth;

(3) Social security number:

(4) State of issuance and identification

number of any valid driver license:

(5) For a sexual offender on supervised

release, the name, address, and telephone number

of the registrant’s parole officer, probation officer,

or other person responsible for the registrant’s

supervision;

(6) Sexual offense or offenses of which the

registrant has been convicted:

(7) Current place and length of employment;

(8) Current address and length of residence

at such address; and

(9) Such other registration and/or monitoring

information as may be required by rules

promulgated by the TBI in accordance with the

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Appendix A

provisions of the Uniform Administrative

Procedures Act, compiled in title 4, chapter 5.

TENN. CopE § 40-39-103 (1994).

The Act also provided for the maintenance of a registry

and for the release of registry information:

(a) Using information received or collected

pursuant to this chapter, the TBI shall establish,

maintain, and update a centralized record system

of sexual offender registration and verification

information. The TBI shall promptly report

current sexual offender registration and

verification information to:

(1) The local law enforcement agency for the

offender’s place of residence;

(2) The local law enforcement agency for the

offender’s previous place of residence if a change

of residence is indicated;

(3) The local law enforcement agency for the

offender’s place of employment;

(4) The local law enforcement agency for the

offender’s previous place of employment if a

change of employment is indicated;

(5) When applicable, the probation officer,

parole officer, or other public officer or employee

PRR Dd ek lies aaa Heys kad ye SD BEDARD era il

Appendix A

assigned responsibility for the offender’s

supervised release; and

(6) The identification division of the federal

bureau of investigation.

(b) Upon request of the TBI, a local law

enforcement agency, probation officer, parole

officer, or other public officer or employee

assigned responsibility for the offender’s

supervised release, shall assist in the investigation

and apprehension of a sexual offender suspected

of violating the provisions of this chapter.

subsections (a) and (b), information reported on

sexual offender registration/monitoring forms,

verification/monitoring forms, and acknowledgment

forms shall be confidential: provided, that the TB/

or a local law enforcement agency may release

relevant information deemed necessary to protect

the public concerning a specific sexual offender

who is required to register pursuant to this

chapter.

TENN. Cope. § 40-39-106 (1994) (emphasis added).

II.

We review a district court’s grant of summary judgment

de novo. See Northeast Ohio Coalition for the Homeless y.

City of Cleveland, 105 F.3d 1107, 1109 (6th Cir.), cert.

denied, _U.S.__, 118 S. Ct. 335 (1997).

Appendix A

Il.

Before we reach the merits of the parties’ arguments,

we must address the state’s contention that the district court

lacked subject-matter jurisdiction. Tennessee claims that, as

to the notification provision of the Act, there is no case or

controversy as required by Article III of the United States

Constitution. Specifically, the state claims that Cutshall has

failed to allege any imminent threat of harm because there

is no evidence that the state is likely to disclose his sex

offender registry information to the public. Relatedly, the

state argues that Cutshall lacks standing because his claim

of injury is mere speculation. Finally, the state claims that

the injuries Cutshall alleges stem from the potential misuse

of registry information by the public, and cannot be traced

to the state.

We do not agree.

The irreducible constitutional minimum of

standing contains three requirements. First, and

foremost, there must be alleged (and ultimately

proven) an injury in fact — a harm suffered by

the plaintiff that is concrete and actual or

imminent, not conjectural or hypothetical.

Second, there must be causation — a fairly

traceable connection between the plaintiffs injury

and the complained-of conduct of the defendant.

And third, there must be redressability — a

likelihood that the requested relief will redress

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Appendix A

the alleged injury. This triad of injury in fact,

causation, and redressability comprises the core

of Article III’s case-or-controversy requirement,

and the party invoking federal jurisdiction bears

the burden of establishing its existence.

Steel Company v. Citizens for a Better Env't, 523 US. 83,

__, 118 S. Ct. 1003, 1016-17 (1998) (internal quotation

marks, citations, and footnote omitted.)

Beginning with the third element, it is clear, and the

parties do not dispute, that the relief sought will redress

Cutshall’s alleged injuries. Should this court agree with

Cutshall’s claims, we have the power to grant relief that

would prevent the state from disclosing his registry

information entirely, thus eliminating his alleged injury.

Turning to the second element, Cutshall has also satisfied

this court that the alleged injuries are traceable to the state

of Tennessee. To satisfy this requirement, Cutshall need not

have a valid claim, only an arguable one. “(T]he absence of

a valid (as opposed to arguable) cause of action does not

implicate subject-matter jurisdiction.” Jd. at 1010. Cutshall

has argued, inter alia, that releasing the registry information

operates as an impermissible imposition of punishment.

Because it is the state that controls the release of the

information, the alleged injuries are causally connected to

the state’s conduct. We need not agree, as a threshold matter,

that the Act imposes a punishment. For Article III purposes,

we need only determine that Cutshall has an arguable claim

of injuries traceable to the state. We think he has just such a

claim.

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Appendix A

The first element for standing requires injury in fact,

and the state claims that without any clear indication that

Cutshall’s registry information is about to be released, he

has suffered no such injury. However, the statute is written

in such a manner that the release of registry information can

take place at any time law enforcement officials have

determined that release is necessary to protect the public.

Therefore, we think Cutshall has satisfied this requirement

as well. Were it otherwise, a convicted sex offender would

be required to wait until after his registry information is

released before challenging the Act. Cutshall’s status as a

convicted sex offender registered in accordance with the Act

arguably results in an injury because he faces a specific threat

of being subject to the release of registry information every

day. Cutshall’s claims are more than general complaints

about the conduct of the Tennessee government. See City of

Los Angeles v. Lyons, 461 U.S. 95, 112 (1983).

Therefore, we conclude Cutshall has met the minimum

standing requirements to satisfy Article III of the

Constitution.

We turn now to the constitutionality of the Act.

Cutshall argues that the Act punishes him twice for the

same offense, in violation of the Double Jeopardy Clause of

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Appendix A

the Fifth Amendment to the United States Constitution. He

argues that the Tennessee legislature’s purpose in enacting

the law was to punish convicted sex offenders and that the

Act effectively does so.

First, Cutshall points out that in discussing the Act, some

members of the Tennessee legislature made comments

indicating that the purpose of the Act was to punish and deter

sex offenders and to discourage them from residing in

Tennessee. Cutshall argues that lifelong monitoring is a form

of punishment. Moreover, he argues, placement of the Act

in the Tennessee Criminal Code indicates its punitive nature.

Cutshall claims that requiring all sex offenders to register

for a period of 10 years is arbitrary, capricious, and excessive,

further indicating that the legislation is not a valid regulatory

or remedial measure. Cutshall claims that the Tennessee

legislature passed the Act in order to punish, and that this

intent should end the inquiry.

Second, Cutshall argues that the Act has punitive effects.

He claims the Act imposes an affirmative disability on all

sex offenders because they must continually update their

registry information and respond to requests for information

from the TBI under penalty of law.

Cutshall also argues that any release of registry

information imposes a punishment. He claims that public

disclosure does not serve the state’s alleged purpose of aiding

law enforcement. According to Cutshall, public disclosure

subjects sex offenders to stigmatization, ridicule, and

harassment. He submits that the shaming effect of public

disclosure has traditionally been viewed as punishment.

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Appendix A

The state of Temnessee, on the other hand, claims that

the legislature promulgated the Act to assist law enforcement

in solving crimes and to help the public protect itself.

Moreover, the state claims that Tennessee passed the law in

response to an act of the United States Congress which

required the several states to establish sex offender registries

or lose certain federal funding. The state submits that the

Act does not operate to punish registrants because it in no

way seeks to limit their actions, and registering requires little

effort and inconvenience.

The Double Jeopardy Clause of the Fifth Amendment

provides in relevant part, “nor shall any person be subject

for the same offence to be twice put in jeopardy of life or

limb.” U.S. Const. amend. V. The Fifth Amendment applies

to the states through the Fourteenth Amendment. See Benton

v. Maryland, 395 U.S. 784, 794-95 (1969).

[T]he Double Jeopardy Clause does not prohibit

the imposition of any additional sanction that

could, in common parlance, be described as

punishment. The Clause protects only against the

imposition of multiple criminal punishments for

the same offense, ... and then only when such

occurs in successive proceedings.

Hudson v. United States, 522 U.S. 93, _, 118 S. Ct. 488,

493 (1997) (some emphasis added) (internal quotation marks

and citations omitted).

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Appendix A

In Hudson, the most recent Supreme Court decision

addressing whether a statutory scheme imposes punishment

for double jeopardy purposes, the Court advanced a two-part

inquiry:

A court must first ask whether the legislature, in

establishing the penalizing mechanism, indicated

either expressly or impliedly a preference for one

label or the other. Even in those cases where the

legislature has indicated an intention to establish

a civil penalty, we have inquired further whether

the statutory scheme was so punitive either in

purpose or effect ... as to transfor[m] what was

clearly intended as a civil remedy into a criminal

penalty.

/d. (internal quotation marks and citations omitted).

In evaluating the second part of this analysis, the Court

counseled in favor of the factors previously articulated in

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963):

[(1) whether the sanction involves an affirmative

disability or restraint, [(2)] whether it has

historically been regarded as a punishment, [(3)]

whether it comes into play only on a finding of

scienter, [(4)] whether its operation will promote

the traditional aims of punishment — retribution

and deterrence, [(5)] whether the behavior to

which it applies is already a crime, [(6)] whether

an alternative purpose to which it may rationally

be connected is assignable for it, [and (7)] whether

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it appears excessive in relation to the alternative

purpose assigned.... [It is important to note,

however, that] these factors must be considered

in relation to the statute on its face.

Id. at 168-69 (internal quotation marks, citations, and

footnotes omitted).

In Hudson, the Supreme Court retreated somewhat from

its decision in United States v. Halper, 490 U.S. 435 (1989),

abrogated by Hudson vy. United Staies, 522 U.S. 93, in favor

of its earlier decision in United States v. Ward, 448 U.S.

242 (1980). According to the Hudson Court, Halper

improperly skipped the first step in the analysis, and focused

on whether the sanction was so grossly disproportionate to

the harm caused so as to constitute punishment. Hudson, 118

S. Ct. at 494. Also, Halper failed to recognize that all civil

penalties serve as a deterrent. See id. In backing away from

Halper, the Court voiced a concern “about the wide variety

of novel double jeopardy claims spawned in the wake of

Halper,” including E.B. v. Verniero, 119 F.3d 1077 (3d Cir.

1997), cert. denied, 118 S. Ct. 1039 (1998), a challenge to

New Jersey’s sex offender registration law as violative of

double jeopardy. Hudson, 118 S. Ct. at 493 & n.4.

We begin by examining the Act’s purpose. The Act has

been amended since the inception of this lawsuit, but as

enacted, it contained no express statement of purpose.

Although it is placed in title 40 of the Tennessee Code, the

section devoted to criminal procedure, its location within

cal

wee >

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Appendix A

criminal procedure laws does not necessarily indicate an

intent on the part of the legislature to punish sex offenders.

The Supreme Court has repeatedly approved of civil

forfeitures after criminal prosecutions, even when the statute

authorizing forfeiture is located in the same Statute as the

criminal offense. See, e.g., United States v. One Assortment

of 89 Firearms, 465 U.S. 354 (1984). We think the location

of Tennessee’s sex offender law does not assist us in

determining whether the Act was intended to serve as

punishment.

In examining the purpose of the Statute, we look

primarily to its language. As enacted, it contained six

substantive sections, dealing with the content of registry

information, verification of registry information, formalities

of registry forms, record keeping and reporting of registry

information, potential for removal from the registry, and

penalties for violating the registration requirements.

Noticeably absent in this Statutory scheme is an indication

that the legislature intended for the Act to have other than a

regulatory purpose. The reporting provisions themselves

merely require registrants to supply basic information; the

burdens imposed are minor, involving only the completion

of the appropriate forms. The language of the Act evidences

an intent on the part of the legislature to monitor the

whereabouts of convicted sex offenders. Moreover, the

authority of law enforcement agencies to disclose registry

information is limited to situations in which disclosure is

necessary to protect the public. This, we think, is further

indication that the legislature did not intend for the Act to

be punitive. In sum, we find no indication that the Tennessee

legislature intended the Act to be a punitive measure.

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Appendix A

Finding no punitive purpose evident from the language

of the Act, we are required nevertheless to determine whether,

in its effect, the Act is punitive in the sense that it twice

punishes a registrant for the same offense. In examining the

effects of the law, the factors articulated by the Supreme

Court in Kennedy, 372 U.S. 144, we discussed earlier,

“provide useful guideposts.” Hudson, 118 S. Ct. at 493.

However, these factors must be considered in light of the

statute on its face, and “only the clearest proof will suffice

to override legislative intent and transform what has been

denominated a civil remedy into a criminal penalty.” /d.

(internal quotation marks and citation omitted).

The first Kennedy factor, an affirmative disability or

restraint, “is some sanction approaching the infamous

punishment of imprisonment.” Herbert v. Billy, 160 F.3d

1131, 1137 (6th Cir. 1998) (internal quotation marks and

citations omitted). In Hudson, the Supreme Court concluded

that indefinite debarment from the banking industry did not

rise to an affirmative disability or restraint. Hudson, 118

S. Ct. at 496. This court, in Herbert, concluded that driver’s

license suspension for driving under the influence did not

impose aii affirmative disability. Herbert, 160 F.3d at 1137.

Similarly, the Tennessee Act does not impose an affirmative

disability or restraint. In fact, the burdens imposed on sex

offenders are less onerous than those imposed in Hudson

and Herbert, loss of livelihood and loss of driver’s license.

Cutshall need only notify the TBI where he lives, where he

works, and other basic data. He is free to live where he

chooses, come and go as he pleases, and seek any

employment he wishes. Neither are the public notification

provisions tantamount to imprisonment. Under the Act, law

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Appendix A

enforcement officials may disclose registry information when

necessary to protect the public. This imposes no restraint

whatever upon the activities of a registrant.

The second Kennedy factor asks whether, from a

historical perspective, the sanction has been viewed as

punishment. Historically, punishment has taken the forms

of incarceration, incapacitation, and rehabilitation. Nothing

in the Tennessee Act imposes restrictions on the conduct of

sex offenders that are akin to incarceration or incapacitation:

nor does the Act force registrants to conform their actions in

the way that rehabilitative efforts might. The Act keeps law

enforcement officials informed of the location of convicted

sex offenders, and, when necessary, the public can be notified

of sex offenders who pose a particular risk. The focus of the

Act is not on circumscribing the conduct of the offender,

but on the protection of the public. The Act provides for the

collection and dissemination of information; Cutshall has

not cited, and we have not found, any evidence that

dissemination of information has historically been considered

punishment. We are mindful of the fact that shaming

punishments, such as banishment and pillory, have

historically been used to punish criminals. However, these

practices involved more than the mere dissemination of

information. Moreover, the possibility of a shaming effect

from disclosure of registry information is certainly not the

clearest of proof necessary to overcome the legislative intent

that the Act serve regulatory and not punitive purposes.

Dissemination of information is fundamentally different from

traditional forms of punishment, and we conclude that it has

not been viewed as punishment from a historical perspective.

een eer

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Appendix A

The third factor requires that we consider whether the

Act is triggered only upon a finding of scienter. “The term

‘scienter’ means ‘knowingly’ and is used to signify a

defendant’s guilty knowledge.” Herbert, 160 F.3d at 1137-

3% The Supreme Court concluded, in Hudson, that the law

authorizing @cbarment from the banking industry did not

come into play “only” upon a finding of scienter where the

law applied to “any person ‘who violates’ any of the

underlying banking statutes, without regard to the violator’s

state of mind.” Hudson, 118 S. Ct. at 496. The Court did not

specifically examine the state of mind requirements of the

underlying banking statutes, and instead looked to the

debarment statute “on its face.” /d. Similar to the debarment

statute in //udson, the Tennessee Act applies to persons

convicted of any one of the sex offenses listed in the statute,

without inquiry into the offender’s state of mind. Although

it is not clear that we are required to examine the state of

mind requirements of the underlying sexual offenses, an

cxamination of the offenses leads to the same conclusion.

Some of the listed offenses do not clearly specify a culpable

mens rea. See, e.g., TENN. Cope § 39-13-506 (statutory rape).

The Tennessee Code specifies, and Tennessee courts have

held, that “when a statute omits reference to a specific mens

rea, but does not plainly dispense with a mens rea

requirement, then proof of ‘intent,’ ‘knowledge,’ or

‘recklessness’ will suffice to establish a culpable mental

state.” State v. Hill, 954S.W.2d 725, 726 (Tenn. 1997) (citing

Tenn. Cope § 39-11-301(c)). Thus, in view of the language

of the Act and the relevant underlying offenses, we conclude

that the Act does not come into play “only” on a finding of

scienter.

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ee wands

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Appendix A

In examining the fourth Kennedy factor, it is clear that

the Act will serve to promote deterrence. Certainly, once a

sex offender has informed the local law enforcement agency

of his address and place of employment, knowing that law

enforcement officials have that information will likely

operate as a deterrent. However, the Supreme Court in

Hudson, cautioned: “To hold that the mere presence of a

deterrent purpose renders . . . sanctions ‘criminal’ for double

jeopardy purposes would severely undermine the

Government’s ability to engage in effective regulation... .”

Hudson, 1188S. Ct. at 496. Thus, satisfaction of this factor is

not dispositive, but it does weigh in Cutshall’s favor.

The fifth Kennedy factor asks whether the behavior to

which the statute applies is already a crime. The Act

unarguably applies only to convicted sex offenders. In

Herbert, this court addressed an Ohio law authorizin g license

Suspension for driving under the influence, a sanction

imposed in addition to criminal prosecution for drunk

driving. The court recognized that the “statutory scheme...

intertwine[d] the license suspension with the arrest for

drunken driving,” but concluded that this was insufficient

to find license suspension punitive for double jeopardy

purposes. Herbert, 160 F.3d at 1138. Similarly, although the

registration and notification provisions are intertwined with

the offender’s underlying conviction, they impose no

additional penalty akin to revocation of license or loss of

livelihood. We decline to hold that these requirements

transform the Act from one that is regulatory to one that is

punitive.

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The final two factors under the Kennedy analysis require

us to decide whether there is a remedial purpose behind the

Act and if so, whether the Act is excessive in relation to the

remedial purpose. As we have said, the Act serves to aid

law enforcement and protect the public. Congress, and the

legislatures of the several states, have considered the

egregiousness of sexual crimes, particularly where children

are concerned, and studies have indicated that sexual

offenders have high rates of recidivism. We are also mindful

of the burdens the Act imposes on convicted sex offenders.

However, many of these alleged burdens stem not from the

Act itself, but from the potential abuse of registry information

by the public. Given the gravity of the state’s interest in

protecting the public from recidivist sex offenders, and the

small burdens imposed on registrants, we cannot say that

the requirements of the Act exceed its remedial purpose.

The state of Tennessee has alerted us to the purpose

statement adopted by the Tennessee legislature in 1997, after

the commencement of this litigation. See TENN. CODE

§ 40-39-101 (1997). It is not impossible that this purpose

clause was a post hoc effort to clarify the legislature’s intent

in enacting the original statute. As a result, we will disregard

this purpose statement entirely.

Examining the statute in light of each of the Kennedy

factors, we conclude that the Act does not violate the

prohibition against double jeopardy.

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Cutshall also argues that the Act violates the Ex Post

Facto Clause of the federal] Constitution. The clause

provides: “No state shall. . . Pass any. . . ex post facto Law.”

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

facto prohibition, a law must be retrospective — that is it

must apply to events occurring before its enactment — and

it must disadvantage the offender affected by it by altering

the definition of criminal] conduct or increasing the

punishment for the crime.” Lynce v. Mathis, 519 U.S. 433,

441 (1997) (internal quotation marks and citation omitted).

The clause is designed to protect against legislative abuses

and to provide fair notice of the consequences of criminal

actions. See Miller y. Florida, 482 U.S. 423, 429-30 (1987).

The parties do not dispute that the Act was passed after

Cutshall committed his sexual offense. They also agree that

the Act purports to apply to those convicted of sex offenses

prior to its enactment. Therefore, we need only address the

second element of the ex post facto analysis: whether the

Act impermissibly disadvantages sex offenders, by altering

the definition of criminal] conduct or increasing the

onerousness of the punishment for crimes committed before

their enactment.

The Supreme Court, although not expressly adopting the

Kennedy factors, recently applied many of the same factors

in deciding an ex post facto challenge in another context.

See Kansas y. Hendricks, 521 U.S. 346, 360-69 (1997).

Hendricks involved a constitutional challenge to a civil

commitment statute, Kansas’s Sexually Violent Predator Act.

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See id. at 2076. The Court conducted a single analysis,

determined that the law at issue was not punitive, and

concluded that the law could not violate either the double

jeopardy prohibition or the ban on ex post facto laws. See

id. at 2081-85.

In light of the analysis in Hendricks, we are persuaded

that the intent-effects analysis we have discussed in the

double jeopardy context applies as well for determining

whether the Ex Post Facto Clause is implicated by the Act.

Using this approach, we conclude, once again, that the Act

was not intended to punish, and its requirements do not

transform the law into punishment. Because the Act imposes

no punishment, the Ex Post Facto Clause is not implicated.

A third challenge Cutshall !odges against the Act is that

it violates the constitutional bar against bills of attainder.

The Bill of Attainder Clause, U.S. Const. art. I, § 9, cl. 3,

prohibits legislatures from engaging in “[l]egislative acts,

no matter what their form, that apply either to named

individuals or to easily ascertainable members of a group in

such a way as to inflict punishment on them without a judicial

trial.” United States v. Brown, 381 U.S. 437, 448-49 (1965).

In Nixon v. Administrator of General Services, 433 U.S. 425

(1977), the Supreme Court considered the definition of

punishment in the bill of attainder context. The Court

announced a three-prong test for determining whether the

law in question imposed a punishment. The Court considered,

first, punishments that historically would have been viewed

as violative of the bill of attainder prohibition: “imprisonment,

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banishment, . . . the punitive confiscation of property by the

sovereign,” and “a legislative enactment barring designated

individuals or groups from participation in specified

employments or vocations.” /d. at 474 (footnotes omitted).

Second, the Court considered whether, in li ght of the severity

of the burdens imposed, the challenged law served legitimate

nonpunitive purposes. See id. at 475-76. Third, the Court

examined whether the legislature intended the law to serve

as punishment. See id. at 478 (citing Kennedy v. Mendoza-

Martinez, 372 U.S. 144). These three considerations were

applied again in Selective Service System v. Minnesota Public

Interest Research Group, 468 U.S. 841, 852 (1984).

It is self-evident, we think, that the Tennessee Act did

not, in light of these considerations, violate the Bill of

Attainder Clause. Gathering and possibly disseminating

information is not one of the traditional forms of punishment.

And, as we have made clear, the Act serves legitimate

regulatory purposes and was not intended to serve as

punishment.

Cutshall argues that the Act violates the Eighth

Amendment’s prohibition of cruel and unusual punishment.

The Eighth Amendment provides: “Excessive bail shall not

be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” U.S. Const. amend. VIII.

We have already concluded that the Act does not impose

punishment; it is regulatory in nature. Therefore, it does not

violate the Eighth Amendment’s prohibition on cruel and

unusual punishment.

24a

Appendix A

Cutshall also claims the Act violates his constitutional

right to interstate travel. He bases this argument on

statements in the legislative history of the Act indicating

that a sex offender registry would encourage sex offenders

to flee Tennessee in search of states with no such registry.

This argument must fail. “The cases applying the right

to travel doctrine involve laws which distinguished between

newcomers to a state, who were denied fundamental rights,

and residents of longer duration, who were accorded such

rights.” Salibra vy. Supreme Court of Ohio, 730 F.2d 1059,

1064-65 (6th Cir. 1984). The Tennessee Act applies to all

sex offenders residing in Tennessee regardless of where they

were convicted. The Act contains no duration of residency

restriction. Moreover, now that all 50 states have adopted

sex offender registries, see Stacey Hiller, Note, The Problem

with Juvenile Sex Offender Registration: The Detrimental

Effects of Public Disclosure, 7 B.U. Pus. Int. L.J. 271, 276

& n.36 (1998), Tennessee is no more or less attractive than

any other state for a sex offender seeking a place to reside in

total anonymity.

Cutshall also challenges the Act on procedural due

process grounds. He claims the Act deprives him of alleged

constitutional rights of privacy and employment, and the right

to be free from stigma, without due process of law.

Specifically, Cutshall claims that the Act infringes his

protected liberty interests because it imposes punishment,

25a

Appendix A

subjects him to stigmatization and loss of employment,

infringes his right to pursue employment, and violates his

state and federal right to privacy by disclosing private

matters.

The district court agreed with Cutshall that the provision

of the Act allowing for public disclosure of registry

information violated these rights, and concluded that

Tennessee was required to provide Cutshall with appropriate

procedural due process protections before releasing any

registry information. On the other hand, the district court

concluded that no constitutionally protected interest was

implicated by the registration provision.

“The Fourteenth Amendment prohibits state actors from

depriving an individual of life, liberty, or property without

due process of law.” Bailey y. Floyd County Bd. of Educ.,

106 F.3d 135, 140-41 (6th Cir. 1997). Absent state interference

with a protected property or liberty interest, Cutshall is

entitled to no pre-deprivation process whatsoever. See id at

141.

[A] property interest exists and its boundaries are

defined by “rules or understandings that stem

from an independent source such as state law —

rules or understandings that secure certain benefits

and that support claims of entitlement to those

benefits.”

/d. (quoting Board of Regents of State Colleges v. Roth, 408

U.S. 564, 577 (1972)). Therefore, to establish a protected

interest in either freedom from having to register or freedom

26a

Appendix A

from public disclosure of registry information, Cutshall must

be able to point to a right conferred by state law or the

Constitution that supports his contention.

We will address each of Cutshall’s arguments in turn.

First, “[i]t 1s fundamental that the state cannot hold and

physically punish an individual except in accordance with

due process of law.” Jngraham v. Wright, 430 U.S. 651, 674

(1977). However, the Tennessee Act involves no physical

restraint, and we have concluded that it imposes no

punishment. Therefore, we reject Cutshall’s first due process

argument and hold that the Act does not implicate Cutshall’s

liberty interest in being free from punishment without due

process of law.

Cutshall’s claim that the Act violates his Fourteenth

Amendment rights because it imposes a stigma and deprives

him of employment and privacy is likewise without merit.

In Wisconsin v. Constantineau, 400 U.S. 433 (1971), the

Supreme Court addressed the constitutionality of a Wisconsin

law authorizing the posting of names of individuals to whom

intoxicating liquors should not be sold. The Court stated:

“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.” /d. at

437. The Supreme Court made clear in a later case, however,

that reputation alone is not a constitutionally protected liberty

or property interest. See Pau! v. Davis, 424 U.S. 693, 701

(1976). Only where the stigma of damage to a reputation is

coupled with another interest, such as employment, is

procedural due process protection triggered. In reviewing

its decisions, the Supreme Court stated that “the Court has

“7S Ee in a ee ite

27a

Appendix A

never held that the mere defamation of an individual, whether

by branding him disloyal or otherwise, was sufficient to

invoke the guarantees of procedural due process absent an

accompanying loss of government employment.” /d. at 706

(emphasis added). The Due Process Clause is implicated only

when state conduct alters “a right or status previously

recognized by state law.” /d. at 711. This has come to be

known as the “stigma-plus” test. See, e. g., Levin v. Childers,

101 F.3d 44, 46 (6th Cir. 1996).

To succeed in establishing a protected liberty interest, a

plaintiff must show that the “governmental action taken. . .

deprived the individual of a right previously held under state

law.” Paul, 424 U.S. at 708. In Naegele Outdoor Advertising

Co. v. Moulton, 773 F.2d 692, 701 (6th Cir. 1985), this court

observed that loss of government employment, or loss of

the right to purchase alcohol, met the “plus” portion of the

stigma-plus test under previous Supreme Court decisions.

Cutshall claims that loss of employment and violation of his

privacy rights satisfy the “plus” requirement in his case.

We examine, first, Cutshall’s claim that the Act deprives

him of his claimed right to employment.” A charge that

merely makes a plaintiff less attractive to other employers

but leaves open a definite range of opportunity does not

constitute a liberty deprivation.” Gregory v. Hunt, 24 F.3d

781, 788 (6th Cir. 1994) (internal quotation marks and

citation omitted). In this case, the Act does not limit the

ability of registrants to seek and obtain anv type of

employment. In Dean v. McWherter, 70 F.3d 43 (6th Cir.

1995), the plaintiffs challenged a Tennessee law that labeled

sex offenders as “mentally ill.” The plaintiffs claimed that

28a

Appendix A

the law violated the Due Process Clause because it

stigmatized them and diminished their future employment

opportunities. This court rejected the challenge, noting that

the plaintiffs failed to establish that the labeling adversely

impacted their employment opportunities. “[P]laintiffs’

future employment opportunities depend on independent,

medical mental health evaluations and on the willingness of

employers to hire convicted sex offenders, not on the [law

at issue].”’ /d. at 46.

Courts recognizing a constitutionally protected right to

employment have done so in very limited circumstances and

have dealt with terminations of government employment

where either state law or an agreement between the parties

purports to limit the ability of the government to terminate

the employment. Cutshall has not cited, and we have not

found, any case recognizing a general right to private

employment. Greene v. McElroy, 360 U.S. 474 (1959), and

Joelson v. United States, 86 F.3d 1413 (6th Cir. 1996), relied

on by the district court, involved government employment

and do not support the district court’s conclusion that the

Act implicates a constitutionally protected liberty or property

interest in employment.

The Act in no way infringes upon Cutshall’s ability to

seek, obtain, and maintain a job. Cutshall does not contend,

quite correctly, that the Act prevents him from obtaining

government employment. Therefore, we hold that the Act

does not implicate a constitutionally protected liberty or

property interest in employment.

29a

Appendix A

We turn now to Cutshall’s right to privacy claim under

the federal Constitution. In Whalen y. Roe, 429 U.S. 589

(1977), the Supreme Court acknowledged the existence of a

privacy interest in decision making, and the possibility of

an individual interest in avoiding disclosure of personal

matters. However, to support the existence of a privacy

interest in avoiding publication of personal matters, the Court

cited only concurring and dissenting opinions. See Whalen,

429 U.S. at 599-600 & n.25. We find no authority in that

case for the proposition that such an interest exists. At any

rate, the Whalen Court concluded that the law at issue, which

compiled data on patient prescriptions, did not implicate the

alleged privacy interest in avoiding the disclosure of private

matters. In the same vein, we are not persuaded that the Act

infringes on any constitutionally protected privacy interest.

In Paul, 424 U.S. 693, the Court again addressed the

right of privacy:

While there is no right of privacy found in

any specific guarantee of the Constitution, the

Court has recognized that zones of privacy may

be created by more specific constitutional

guarantees and thereby impose limits upon

government power. . . . [P]ersonal rights found in

this guarantee of personal privacy must be limited

to those which are fundamental or implicit in the

concept of ordered liberty.... The activities

detailed as being within this definition were ...

matters relating to Marriage, procreation.

contraception, family relationships, and child

rearing and education. In these areas it has been

Appendix A

held that there are limitations on the States” power

to substantively regulate conduct.

Id. at 712-13 (internal quotation marks and citations omitted).

This court addressed a right of privacy claim in J.P. v.

DeSantt, 653 F.2d 1080 (6th Cir. 1981). The case involved a

challenge to an Ohio county’s practice of compiling social

histories on juvenile offenders. The social histories contained

information about the incident, the juvenile, his family,

school records, and anything else that the probation officer

deemed relevant. See id. at 1082-83. The social history was

given to the court and made “available to 55 different

government, social and religious agencies that belong to a

‘social services clearinghouse.’ ” /d. at 1082. The juvenile

plaintiffs alleged that this practice violated their

constitutional right of privacy. See id. at 1085. This court

rejected the challenge, even in light of the language in

Whalen indicating the possible existence of a right to

nondisclosure of private matters:

Absent a clear indication from the Supreme

Court we will not construe isolated statements in

Whalen... more broadly than their context allows

to recognize a general constitutional right to have

disclosure of private information measured

against the need for disclosure. . . .

_.. [W]e conclude that the Constitution does

not encompass a general right to nondisclosure

Sha

Appendix A

of private information. We agree with those courts

that have restricted the right of privacy to its

boundaries as established in Paul v. Davis... and

Roe v. Wade, 410 U.S. [113 (1973),] ... those

personal rights that can be deemed “fundamental”

or “implicit in the concept of ordered liberty.”

Id. at 1089-90 (citations omitted). This court concluded that

release of juvenile social records did not violate any privacy

right that was fundamental or implicit in the concept of

ordered liberty. See id. at 1090.

In making its decision that Cutshall had a constitutional

right to keep his registry information private, the district court

relied heavily on United States Department of Justice vy.

Reporters Committee for Freedom of the Press, 489 U.S.

749 (1989). However, a careful analysis leads us to conclude

that this case is not applicable to the issue before us. In

Reporters Committee, the Supreme Court decided “whether

the disclosure of the contents of [an FBI rap sheet] to a third

party could reasonably be expected to constitute an

unwarranted invasion of personal privacy within the meaning

of the Freedom of Information Act.” Id. at 751 (emphasis

added) (internal quotation marks and Citation omitted). The

Freedom of Information Act, 5 U.S.C. § 552, requires broad

disclosure of documents. Records or information compiled

for law enforcement are excepted from disclosure, “ ‘but only

to the extent that the production of such [materials]... could

reasonably be expected to constitute an unwarranted invasion

of personal privacy.’ ” Id. at 755-56 (quoting 5 U.S.C.

§ S22(b)(7)(C)). Although the Court made references to the

possibility of a constitutional right to keep private matters

32a

Appendix A

from being publicly disclosed, any reference made to this

possible right was mere dicta. The only matter before the

Court was a specific exception to FOIA; and after the

Reporters Committee decision, this court has continued to

maintain its position articulated in J.P. that there is no federal

consttutional right of nondisclosure. See Doe v. Wigginton,

21 F.3d 733, 740 (6th Cir. 1994). Therefore, the district

court’s reliance on Reporters Committee was misplaced, and

we conclude that Cutshall has no constitutional right to keep

his registry information from being disclosed.

Given the Supreme Court’s and this court's narrow view

of the federal constitutional right of privacy, we reject

Cutshall’s claim that the Act infringes on this asserted right.

The Constitution does not provide Cutshall with a right to

keep his registry information private, and the Act does not

impose any restrictions on his personal rights that are

fundamental or implicit in the concept of ordered liberty,

such as his procreative or marital rights.

Cutshall also claims a privacy interest derived from

Tennessee law. The Supreme Court of Tennessee has

concluded:

Based on both the language and the development

of our state constitution, we have no hesitation in

drawing the conclusion that there 1s a right of

individual privacy guaranteed under and protected

by the liberty clauses of the Tennessee

Declaration of Rights.

33a

Appendix A

Undoubtedly, that right to privacy

incorporates some of the attributes of the federal

constitutional right to privacy and, in any given

fact situation, may also share some of its

contours. ... [H]owever, there is no reason to

assume that there is complete congruency.

Davis v. Davis, 842 S.W.2d 588, 600 (Tenn. 1992). The

specific individual freedom at stake in Davis was the right

of procreation, and the court concluded that it was included

in the individual's right of privacy. See id.

This court has recently been faced with the claim

presented here — that the Tennessee constitution provides a

right to be free from the public disclosure of private facts.

This court declined to decide the matter out of “respect for

the right of a state court system to construe that state’s own

constitution and . . . statute.” Doe v. Sundquist, 106 F.3d 702,

708 (6th Cir.), cert. denied, 118 S. Ct. 51 (1997). That case

involved a challenge to the recent legislation in Tennessee

significantly broadening the availability of previously sealed

adoption records. When the plaintiffs in that case brought

their claims in Tennessee state court seeking injunctive relief,

the Tennessee judge stated:

The Court finds the plaintiffs’ argument that the

right of privacy extends to nondisclosure of

private information to be without merit. The

disclosure of private information is not entitled

to constitutional protection. The right to privacy

has more to do with the general “right to be let

alone” and a protected sphere in which the

34a

Appendix A

government may not regulate conduct rather than

some amorphous right protecting against the

nondisclosure of private information.

Doe v. Sundquist, No. 97C-941, 1997 WL 354786, at *6

(Tenn. Cir. Ct. May 2, 1997) (emphasis added).

The Tennessee Court of Appeals has observed “that the

right to privacy provided to Tennesseans under our

Constitution ts in fact more extensive than the corresponding

right to privacy provided by the Federal Constitution.”

Campbell v. Sundquist, 9260 S.W.2d 250, 261 (Tenn. Ct. App.

1996). However, that case dealt with the autonomy branch

of privacy and did not address any right of nondisclosure. In

that case, the court invalidated a Tennessee law which

attempted to restrict consensual homosexual sex:

We think it is consistent with this State’s

Constitution and constitutional jurisprudence to

hold that an adult’s right to engage in consensual

and noncommercial sexual activities in the

privacy of that adult’s home ts a matter of intimate

personal concern which is at the heart of

Tennessee’s protection of the right to privacy, and

that this right should not be diminished or afforded

less constitutional protection when the adults

engaging in that private activity are of the same

gender.

Id. at 262. Cutshall has not cited, and we have not found,

any case from a Tennessee court adopting a constitutional

right to the nondisclosure of private matters.

35a

Appendix A

The Tennessee Supreme Court has not spoken on the

issuc of whether the Tennessee constitution provides a right

of privacy encompassing a right to the nondisclosure of

private matters. We have examined the Tennessee

constitution and find no language Suggesting a right of

privacy of the kind Cutshall claims. Moreover, and what is

more important, we have no reason to believe that the

Tennessee Supreme Court would find such a right. Therefore,

we hold that the Tennessee constitution does not provide a

right to the nondisclosure of private facts.

Cutshall has failed to establish that the Act infringes

any constitutionally protected liberty or property interests

in employment or privacy. Without more, his claim that the

Act damages his reputation must also fail. Without the “plus”

factor of employment or privacy, Cutshall has failed to Satisfy

the stigma-plus test of Paul. Therefore, he is not entitled to

any procedural protections under the Due Process Clause.

Finally, Cutshall claims that the Act violates the Equal

Protection Clause. The Equal Protection Clause provides that

“all persons similarly situated should be treated alike.” City

of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439

(1985). Unless the legislation classification under attack

involves a suspect class, the Classification need only be

rationally related to a legitimate government goal to survive

constitutional challenge. See Chapman y. United States, 500

U.S. 453, 465 (1991). “[L]egislation is presumed to be valid

and will be sustained if the classification drawn by the statute

is rationally related to a legitimate state interest.” Cleburne,

473 U.S. at 440.

36a

Appendix A

Convicted sex offenders are not a suspect class.

Therefore, the Act 1s subject to scrutiny under the rational

basis test. Tennessee has established legitimate concerns

about law enforcement and public safety with respect to sex

offenses. Given the indications that sex offenders pose a

particular threat of reoffending, we cannot say that the Act

is irrational. Therefore, this claim must also fail. We hold

that the Act does not violate Cutshall’s right to equal

protection of the laws.

Tennessee also takes issue with the temporary injunction

issued by the district court preventing the state from releasing

sex offender registry data. Although not crystal clear from

the proceedings below, we will assume, without deciding,

that the injunction 1s still in effect.

This court reviews the decision to grant a preliminary

injunction for an abuse of discretion. See Glover v. Johnson,

855 F.2d 277, 282 (6th Cir. 1988). In deciding whether a

preliminary injunction was an abuse of discretion, this court

considers the following four factors:

(a) the likelihood of the success on the merits of

the action,

(b) the irreparable harm which could result

without the relief requested,

(d) the possibility if substantial harm to others.

37a

Appendix A

/d. Because, for all the reasons we have discussed at length,

Cutshall has failed to persuade this court that his challenge

would likely succeed on the merits, we find that the district

court abused its discretion in entering the injunction.

IV.

For all of these reasons, we find that the Act is not

unconstitutional either in its registration provision or its

notification provision. We REVERSE the district court’s

decision insofar as it found that the state of Tennessee was

required to provide sex offenders with a due process hearing

prior to releasing registry information. We AFFIRM the

district court’s decision in upholding the registration

provision. The injunction entered by the district court is

dissolved.

38a

Appendix A

DISSENT

NATHANIEL R. JONES, Circuit Judge, dissenting. |

disagree with the majority’s conclusion that Cutshall is not

entitled to a due process hearing before public disclosure of

his sex offender registration and verification information can

occur pursuant to Tenn. Code Ann. 40-39-106(c) and (d)

(1994).' Like the district court, I believe that Cutshall is

1. Those provisions provide:

except as otherwise provided 1n subsections (a) and (b),

information reported on sexual offender registration/

monitoring forms, verification/monitoring forms, and

acknowledgment forms shall be confidential; provided,

that the TBI or a local law enforcement agency shall

release relevant information deemed necessary to protect

the public concerning a specific sexual offender who ts

required to register pursuant to this chapter.

(d) Ifthe TBI ora local law enforcement agency deems

it necessary to protect the public concerning a specific

sexual offender who is required to register pursuant to

this part, such bureau or agency may notify the public

by any means including the following:

(1) Written notice;

(2) Electronic transmission of registration

information, or

(3) Providing on-line access to registration

information.

Tenn. Code Ann. §§ 40-39-106(c), (d).

39a

Appendix A

entitled to such a hearing. | also take issue with the majority’s

final resolution of this case. Because the district court elected

to review the constitutionality of just one of the claims

presented by the parties, multiple constitutional claims

remain pending for resolution. | would therefore remand this

case for additional findings by the district court. On these

two grounds, I ani compelled to dissent.

At the outset, let me make clear my intentions in

dissenting. In no way should my dissent be read as

minimizing the significant social problems we face as a result

of the all-too-prevalent sexual offender crimes which occur.

Such crimes, when committed against adults, and especially

when committed against children, are an affront to the core

values that I hold dear. Without question, sexual offenders

and sexual predators present a danger, and must be diligently

prosecuted to the fullest extent of the law. See. e.g., Booth

Gunter, Sounding the Alarm on Sexual Predators, Tampa

TRIBUNE, Mar. 2, 1997, at 1, available in 1997 WL 7037377;

Vanessa Ho, Sexual Predators Ride the Internet into Homes

Across America, SEATTLE Post-INTELLIGENCER, May 6, 1997,

at Al, available in 1997 WL 3195702: Tamara Lytle, Sexual

Predators Lurk On-Line, Cuicaco TriBune, Nov. 8, 1997, at

10, available in 1997 WL 3608086: Jack Sullivan, Potential

for Danger from Sexual Predators is Growing, BOSTON

HERALD, Mar. 13, 1999, at 7, available in 1999 WL 3392637.

Today, however, | write not in my role as husband, father

and grandfather, but rather, in my role as judge — a role

which requires me, when appropriate, to review state criminal

statutes to determine whether they pass constitutional muster.

A state statute designed to protect the public from criminals

and criminal behavior — no matter how vile the crime

must comport with constitutional guarantees.

40a

Appendix A

In my view, the district court correctly found that the

guarantees secured by the Fourteenth Amendment’s Due

Process Clause require, at minimum, that a hearing be held

prior to public disclosure of a sex offender’s registration and

verification information. See Cutshall v. Sundquist, 980

F.Supp. 928, 934 (M.D. Tenn. 1997); see also E.B. v.

Verniero, 119 F.3d 1077, 1111 (3d Cir. 1997), cert. denied,

__ U.S. __, 118 S.Ct. 1039 (1998); Doe v. Pataki,

3 F.Supp.2d 456, 471 (S.D.N.Y. 1998). The need to hold a

due process hearing is made more acute by the fact that the

Tennessee Act views all sex offenders the same, regardless

of the severity of their crime(s). The sex offender statutes

enacted in other states, by contrast, distinguish offenders for

purposes of public information disclosure, and categorize

them by the risk of recidivism (what the statutes call the risk

of “re-offense’’). See, e.g., N.J. Stat. Ann. § 2C:7-8(c) (West

1995) (commonly known as “Megan’s Law’’). In the case of

offenders who have committed severe sexual crimes, the

public is provided a great deal of information, including the

offender’s name, address and photograph. Where the

offender’s sexual crime is less severe, the public is provided

less information — for example, the offender’s zip code,

but not his address. See Doe v. Pataki, 120 F.3d 1263,

1268-70 (2d Cir. 1997), cert. denied, U.S. __, 118 S.Ct.

1066 (1998) (describing N.Y. Correct. Law § 168 ef seq.

(McKinney Supp. 1999)). Because the Tennessee Act

foregoes such categorization, a due process hearing is of

utmost importance, especially in the case of sex offenders

whose crimes are less severe; the harm to them, should

inaccurate disclosure to the public occur, would be great

indeed.

4la

Appendix A

The purpose of the due process hearing is two-fold: to

ensure that (1) the information to be disclosed is accurate:

and (2) disclosure is in fact necessary to protect the public

(as required by Tenn. Code Ann. §§ 40-39- 106(c) and (d)).

See Cutshall, 980 F.Supp. at 934. To make that latter

determination, the presiding judge will need to assess the

danger to the community posed by the sex offender. | would

place the initial burden of demonstrating compliance with

this two-prong test on the prosecution, and afford the sex

offender an opportunity to rebut those findings, particularly

the “risk of danger to the community” assessment. In cases

where the need to protect the public is great, and where notice

to the public must quickly occur, this hearing could perhaps

be expedited. In all cases, however, both the prosecution and

the sex offender should be afforded an Opportunity to present

relevant evidence including, when necessary, testimony by

expert witnesses. See id.

I also voice my objection to the majority’s expansive

view of its role in this case. The majority notes at the outset

that it was “asked to decide whether the Act violates the

United States Constitution, specifically, the Double

Jeopardy, Ex Post Facto, Bill of Attainder, Due Process, or

Equal Protection Clauses: the Eighth Amendment: the

constitutional right to travel interstate; and the constitutional

right to privacy.” Ante, at 2. The district court, however,

limited its discussion to just one issue: whether the Tennessee

Act violates Cutshall’s procedural due process rights. See

Cutshall, 980 F.Supp. at 931. The district court concluded

that “[bJecause ... the discretionary disclosure provisions

of the Tennessee [Act] . . . violate[ ] the Due Process Clause

of the Fourteenth Amendment . . . , [we] do[ ] not reach the

424

Appendix A

merits of the other constitutional challenges to the Act.” /d

at 934. Recoyniziny that we are a revicwing court, and that

our role 1s to review decisions rendered by the district courts,

not make those decisions in the first instance, see Roeder v

American Postal Workers Unton, AFL-CIO, 180 F.3d 733,

737 n.4 (6th Cir, 1999) (citing United States v. Markwood,

48 b 3d 969, 974 (6th Cir. 1995)), | would limit the majority's

discussion to a review of the district court’s Fourteenth

Amendment analysis, and remand this case for supplemental

constitutional findings.

dha

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

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

AT NASHVILLE

No 3-95 O3KD

ARTHUR Ct hISHALL.

Platt

DON SI NDOUIST. Governor

of the state of I ennessee.

Detendant

MEMORANDUM

Before the court 1s plainuff, Arthur Cutshall’s motion

for summary judgment as well as defendant Governor Donald

Sundquist’s motion to dismiss or, in the alternative, for

summary judyment Plainuff challenges the consttutionality

of the Tennessee Sexual Offender Reyistration and

Monitoriny Act, alleging violations of: the ex post facto laws

contained in Article | § 10 of the U S. Constitution and

Article 1, §§ 11 and 20 of the Tennessee Constitution. the

prohibition against bills of attainder found in Article 1, § 10

of the U.S. Constitution, the double jeopardy clause of the

44a

Appendix B

Fifth Amendment of the U.S. Constitution; the Eighth

Amendment of the U.S. Constitution; the right to privacy;

the entitlement to substantive and procedural due process;

the right to freely travel; and the nght to equal protection

guaranteed under the federal and state constitutions.

Defendant maintains that plaintiff fails to state a claim upon

which relief can be granted, as plaintiff allegedly lacks

standing and asserts speculative claims. In the alternative,

defendant proposes that summary judgment is appropriate

based upon the lack of disputed facts. For the reasons stated

below, plaintiff's motion for summary judgment is granted

insofar as it pertains to the discretionary notification

procedures in the Act and defendant’s motion for summary

judgment is granted insofar as it relates to registration of the

plaintiff in the Tennessee sex offender registry.

1. Background and Procedural History

In 1994, Congress passed the Jacob Wetterling Crimes

Against Children and Sexually Violent Offender Registration

Act, 42 U.S.C.A. § 14071 (West 1995), to assist law

enforcemeni in creating a national database of former sex

offenders. The passage of the act came in the wake of the

brutal rape and murder of seven year-old Megan Kanka

in New Jersey. Megan was killed by a neighbor who,

unbeknownst to the Kankas, was a convicted sex offender.

Pursuant to a plea agreement, plaintiff Arthur Cutshall

was convicted of the offense of aggravated sexual battery in

February, 1990. Plaintiff received a sentence of twelve years,

with release cligibility after serving thirty percent of his

sentence. As aresult of accumulation of “good time” credits,

plaintiff is scheduled to be released this month.

45a

Appendix B

In 1994, subsequent to plaintiff's conviction, the state

of Tennessee enacted the Sexual Offender Registration and

Monitoring Act (“the Act”). Tenn. Code Ann. § 40-39-10]

et seq. (1996). The act became effective January 1, 1995

and applies retroactively to those convicted of specified

offenses.' It provides that anyone who meets the statutory

definition of a sexual offender must register with the state

by completing a TBI (Tennessee Bureau of Investigation)

sexual offender registration form within ten days following

release on probation, change of residence, or release from

incarceration. Tenn. Code Ann. § 40-39-103 (1996). The TBI

form requests the disclosure of the offender’s name, date

and place of birth, social security number, state and number

of any valid driver license, name and address of any probation

or parole officer responsible for supervising the offender,

the sexual offenses of conviction, the location of the

offender’s employment, and the offender’s address and

length of residence at that address. /d For all offenders

convicted prior to July 1, 1997, this information remains

confidential with the exception that the TBI “shali release

relevant information deemed necessary to protect the public

concerning a specific sexual offender.” Tenn. Code Ann.

§ 40-39-106(c).

1. These offenses include aggravated rape, rape, sexual battery,

Statutory rape, aggravated prostitution, sexual exploitation of a

minor, aggravated sexual exploitation of a minor, especially

aggravated sexual exploitation of a minor. incest, and attempt,

solicitation or conspiracy to commit any of the above listed offenses.

Tenn. Code Ann. § 40-39-102(3)

46a

Appendix B

Il. Discussion

A. Summary Judgment Standard

Summary judgment is appropriate only when there 1s

no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53, 91

L. Ed. 2d 265 (1986); Street v. J.C. Bradford & Co., 886

F.2d 1472, 1476-1480 (6th Cir.1989). The party seeking

summary judgment bears the initial burden of showing the

absence of a genuine issue of material fact. Celotex, 477 U.S.

at 323, 106 S. Ct. at 2552. In responding to a motion for

summary judgment, the nonmoving party cannot rest on its

pleadings, but must present some “specific facts showing

that there is a genuine issue for trial.” Id. As there are no

genuine issues of material fact, summary judgment is

appropriate.

B. Procedural Due Process

Plaintiff contends that the Tennessee Act violates

procedural due process. In order to assess the constitutionality

of the Act, the court must distinguish between the registration

provisions and the notification provision. All offenders must

registering that serves to trigger the protections of procedural

due process. The Act, however, also contains a provision

allowing law enforcement officials to disclose registry

information at their discretion. Law enforcement officials

must only determine that public safety necessitates disclosure

of the information. No guidelines or procedures exist to rein

47a

Appendix B

in this broad power held by law enforcement. The court

therefore focuses on the discretionary notification provision

in assessing the constitutionality of the Act under the due

process clause.

In order to trigger the protections of procedural due

process, plaintiff must demonstrate infringement by the state

upon a property or liberty interest. Board of Regents v. Roth,

408 U.S. 564, 569-70, 92 S. Ct. 2701, 2705, 33 L. Ed. 2d

548 (1972). While plaintiff alleges that his reputation will

be sullied if the registry information is disclosed, the

Supreme Court has held that damage to reputation alone is

not sufficient to trigger procedural due process. Paul v. Davis,

424 U.S. 693, 701. 96S. Ct. | 155, 1160, 47 L. Ed. 2d 405

(1976). In examining other cases where due process was

deemed necessary, the Court found that “as a result of the

State action complained of. a right or status previously

recognized by state law was distinctly altered or

extinguished.” /d. at 711. Thus, to invoke the protections of

procedural due process, plaintiff must assert injury to a

liberty or property interest in addition to damage to his

reputation. This standard evolved into the “stigma plus” test.

W.P. v. Poritz, 931 F. Supp. 1199, 1219 (D.N.J. 1996)

(internal citations omitted). In the instant case, plaintiff has

alleged an infringement upon his right to privacy and

implicitly upon his right to follow a chosen profession, as

well as the damage to his reputation resulting from public

notification of the registry information.

The court must assess whether these rights exist and then

determine whether notification would violate these rights in

48a

. Appendix B

such a way as to offend due process. Finally, if process ts

due, the court must determine what form that process should

take.

1. Right to Privacy

“A right of personal privacy, or a guarantee of certain

areas or zones of privacy, does exist under the Constitution.”

Roe v. Wade, 410 U.S. 113, 152, 93 S. Ct. 705, 726, 35

L. Ed. 2d 147 (1973). In 1965, the Supreme Court first held

that there was a fundamental right to privacy, based in the

penumbra of fundamental rights that surrounded the First

Amendment. This right to privacy, originally extended to

the right of couples to marital privacy, has since been

broadened to include a wide variety of rights related to

procreation, family, and child-rearing. Paul v. Davis, 424

U.S. 693, 713,968. Ct. 1155, 1166, 47 L. Ed. 2d 405 (1976).

In Whalen v. Roe, 429 U.S. 589, 598-599, 97S. Ct. 869,

876, 51 L. Ed. 2d 64 (1977), the court defined the right to

privacy as involving two different types of interests: “the

individual interest in avoiding disclosure of personal matters”

and “the interest in independence in making certain kinds of

important decisions.” Lower courts have interpreted the first

of these interests to establish a constitutional right to privacy

in certain types of personal information, especially medical

records, as well as the doctor-patient relationship. Woods v.

White, 689 F. Supp. 874, 875 (E.D. Wis. 1988), affirmed

899 F.2d 17 (7th Cir. 1990). Although the Sixth Circuit

reaffirmed its holding that “the Constitution does not

encompass a gencral right to nondisclosure of private

information,” lower courts within the circuit have still held

49a

Appendix B

that certain types of private information are protected by a

right to privacy and need not be disclosed. Doe y. Wigginton,

21 F.3d 733, 740 (6th Cir. 1994); Mann y. University of

Cincinnati, 824 F. Supp. 1190, 1196 (S.D. Ohio 1993). The

Mann court held that the right to privacy protected

individuals from disclosure of personal information,

particularly medical records, 824 F. Supp. at 1196. Although

this right to privacy in nondisclosure of medical records is

often outweighed by a governmental interest in disclosure

of those records to certain parties, this governmental interes!

does not negate the general recognition of the underlying

fundamental right. Gutierrez y. Lynch, 826 F.2d 1534, 1539

(6th Cir. 1987) (holding that legitimate requests for medical

information by the state do not constitute an invasion of

privacy); Mann, 824 F. Supp. at 1197 (explaining that courts

must do a balancing test of a patient’s right to privacy in her

medical records and the potential interest of the state in

accessing those records.); Doe y. (¢ ity of Cleveland, 788

IF. Supp. 979, 985 (N.D. Ohio 1991) (holding that the state

had no legitimate interest in disclosing the fact that prisoner

had AIDS to his former employer and that his privacy interest

was thereby violated).

The Supreme Court has also found a right to privacy

stemming from the Ninth Amendment. In his concurrence

in Griswold v. Connecticut, Justice Goldberg opined that “the

Ninth Amendment shows a belief of the Constitution’s

authors that fundamental rights exist that are not expressly

enumerated in the first eight amendments and an intent that

the list of rights included there not be deemed exhaustive.”

381 U.S. 479, 492,85 S. Ct. 1678, 1686, 14 L. Ed. 2d 510

(1965). Goldberg further stated that the right to privacy,

50a

Appendix B

particularly in the context of procreation, constituted one of

those rights fundamental to the existence of a free people,

yet not specifically mentioned in the first eight amendments

to the Constitution. /d. at 491-92. The inclusion of a right to

privacy among fundamental rights did not create an

unauthorized extension of the Constitution, but rather served

as a legitimate means to further develop the concept of

fundamental rights inherent in the Constitution. /d. at 492-93.

The above principles lay the groundwork for plaintiff's right

to privacy implicated by the notification procedures in the

Tennessee Act.

In Doe v. Poritz, the New Jersey Supreme Court held

that convicted sex offenders possessed a privacy interest

grounded in the U.S. Constitution protecting the release of

registry information to the public. 142 N.J. 1, 100 (1995).

The court recognized that the branding of a sex offender as

“potentially currently dangerous” by disclosing his registry

information to the public, as well as the offender’s interest

in nondisclosure, impinged upon the privacy interests of a

convicted sex offender. /d. Plaintiff Cutshall possesses the

same privacy interest in the information contained in

Tennessee’s sexual offender registry.

The Supreme Court also has recognized a liberty interest

in personal privacy. U.S. Department of Justice v. Reporters

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

1468, 103 L.Ed.2d 774 (1989). The Court held that disclosure

of FBI rap sheets to third parties constituted “an unwarranted

invasion of personal privacy” for the purposes of the Freedom

of Information Act. /d. at 751. The information contained in

the rap sheets mirrors that in the sexual offender registry,

Sla

Appendix B

including such items as: name, date of birth and history of

arrests, charges, convictions, and incarcerations. /d. at 752.

The Court recognized that “both the common law and the

literal understandings of privacy encompass the individual's

control of information concerning his or her person. . .” /d.

at 764. Despite the fact that individusl pieces of this

information were accessible to the public the Court, noting

State restrictions on access to criminal history summaries,

held that a privacy interest existed in the compilation of this

information in a single rap sheet. /d. at 753. 764.

The state of Tennessee's constitutional jurisprudence

also recognizes an individual right to privacy. The Supreme

Court of Tennessee first acknowledged the right to privacy

in Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992). The Court

stated, “Based on both the language and the development of

our state constitution, we have no hesitation in drawing the

conclusion that there is a right of individual privacy

guaranteed under and protected by the liberty clauses of the

Tennessee Declaration of Rights.” /d. at 600.

The Tennessee Court of Appeals recently held that not

only does the state constitution support an individual right

lo privacy, but this right extends more broadly than the right

to privacy based in the U.S. Constitution. Campbell vy.

Sundquist, 926 S.W.2d 250, 26] (Tenn. Ct. App. 1996)

(citing Davis). The Campbell court noted that, “The right to

privacy, or personal autonomy (‘the right to be let alone’),

while not mentioned explicitly in our state constitution, is

nevertheless reflected in several sections of the Tennessee

Declaration of Rights ...” /d. at 260. Therefore, not only

does plaintiff have a privacy interest in the disclosure of

52a

Appendix B

registry information based upon the federal Constitution, but

he also possesses this right drawn from state law.

2. Right to Employment

Plaintiff also asserts that his ability to find a job would

be hampered were information about his past conviction to

be disclosed. The right to pursue employment of one’s

choosing rests within those liberties guaranteed by the

Fourteenth Amendment. Greene v. McElroy, 360 U.S. 474,

492,79 S.Ct. 1400, 1411, 3 L.Ed.2d 1377 (1959); Joelson v.

U.S., 86 F.3d 1413, 1420 (6th Cir. 1996); and Fitzgerald v.

Mountain Laurel Racing, Inc., 607 F.2d 589, 602 (3d Cir.

1979).

In order to demonstrate infringement upon this liberty

interest, “a plaintiff must demonstrate stigmatizing

governmental action which so negatively affects his or her

reputation that it effectively forecloses the opportunity to

practice a chosen profession. A plaintiff must also allege in

his or her complaint that the stigmatizing information was

publicly disclosed.” Joelson, 86 F.3d at 1420 (internal

citations omitted).

Disclosure of registry information to the public fulfills

the elements of the test set out in Joelson. As the New Jersey

Supreme Court held, disclosure of registry information to

the public, by implicitly branding that offender as a repetitive

or compulsive sex offender, creates more stigma than the

original conviction. Doe v. Poritz, 142 N.J. at 105. This

certainly meets the element of demonstrating stigmatizing

governmental action. There is no question that prospective

53a

Appendix B

employers would not want to hire someone they thought

posed a danger to society, thereby effectively foreclosing

employment Opportunities, as required in Joelson. As

plaintiff only contends that this interest would be infringed

upon in the event of disclosure, the last part of the Joelson

test is satisfied as well.

3. “Stigma Plus”

The additional injury to plaintiff's reputation which

would result from disclosure of registry information to the

public (as the stigma) coupled with the loss of the rights to

privacy and employment (as the plus) suffices to meet the

“stigma plus” test set out in Pau/ v. Davis, 424 U.S. 693, 96

S.Ct. 1155, 47 L.Ed.2d 405 (1976): and in Wisconsin y.

Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515

(1971). Plaintiff therefore deserves the protection of

procedural due process before law enforcement may disclose

information about him from the sex offender registry to those

not involved in law enforcement.

The New Jersey Supreme Court in Doe held that the

combination of harm to the plaintiff's reputation and the

intrusion into his right to privacy sufficed to create a

protectible interest deserving of procedural due process. Doe

v. Poritz, 142 N.J. at 103. While it may appear that a

convicted sex offender has little remaining interest in his

reputation, the court held that “classification as a ‘repetitive’

and ‘compulsive’ sex offender ... inflicts a greater stigma

than that resulting from the conviction for a sex offense”

which does not entail Classification as either “repetitive” or

“compulsive.” /d. at 105. Thus, although the plaintiff's

54a

Appendix B

conviction damaged his reputation, the additional harm

incurred from public notification and all it implies, combined

with the infringement on plaintiff's right to privacy, suffices

to trigger due process protections. Although the court

recognized the state’s compelling interest in disclosing

information to the public under certain circumstances, it held

that the convicted offender has the right to traditional due

process prior to the state acting on its interest. /d. at 103.

While the state may have an overriding interest in the

public safety of its citizens and thereby in the dissemination

of information regarding dangerous members of the

community, the convicted offender still has enough of a

privacy right to mandate an opportunity to challenge the

validity of the information being disclosed by the state prior

to disclosure. The state’s interest in public safety does not

outweigh the interest of the individual offender in not having

false information disseminated which could permanently

impair his liberty. A convicted sexual offender is therefore

entitled to procedural due process prior to the dissemination

of his registry information by law enforcement.

4. Procedural Requirements

Due process requires “the opportunity to be heard ‘at a

meaningful time and in a meaningful manner’.” Mathews v.

Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed.

2d 18 (1976) (internal citations omitted). To comport with

these requirements, plaintiff should be afforded the

opportunity to be heard, including presenting the testimony

of expert witnesses, on the issue of whether or not disclosure

of his registry information is in fact necessary to protect the

55a

Appendix B

public. The Third Circuit required similar protections in its

recent decision in E.B. y. Verniero, _. F.3d, 1997 WL

473107 (3rd Cir. (N.J.)). The New Jersey version of sexual

offender registration and notification requires the

Classification of offenders into three tiers based upon the

risk that they will re-offend. Doe v. Poritz, 142 N.J. | (1996).

Any offender classified as Tier 2 or Tier 3 is entitled to a

judicial proceeding to determine the validity of that

classification before the public is notified of that offender’s

Status. Not only did the Verniero court recognize the

importance of these proceedings, but it held further that due

process requires that the burden of persuasion in such a

proceeding fall upon the prosecutor. Verniero, at *35.

Plaintiff is entitled to similar protections prior to disclosure

of information regarding his status as a convicted sexual

offender.

Currently, the Tennessee statute allows disclosure simply

on the basis of the discretion of law enforcement officials,

with absolutely no guarantees that the disclosure is truly

necessary. No procedures exist for law enforcement to follow

in determining whether or not a convicted sex offender may

be dangerous in the future. While the interest in public safety

is compelling enough to allow for disclosure of regisiry

information in certain circumstances, it violates due process

to permit disclosure of registry information without providing

the offender the Opportunity to refute law enforcement’s

assessment of the risk of allowing that offender to blend

anonymously back into society. “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” (internal citations

omitted). Paul v. Davis, 424 U.S. at 707. Dissemination of

56a

Appendix B

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. To remedy this deficiency, the state must provide

a convicted offender with notice and opportunity to be heard

prior to releasing this information to the public.

IV. Conclusion

Because the court holds that the uiscretionary disclosure

provisions of the Tennessee Sexual Offender Monitoring and

Registration Act violates the Due Process Clause of the

Fourteenth Amendment of the U.S. Constitution, it does not

reach the merits of the other constitutional challenges to the

Act.

The court does hold that while the registration provisions

of the Tennessee Act meet constitutional muster, the

notification procedures offend notions of due process.

Accordingly, discretionary notification of the type allowed

by the statute must be preceded by a hearing with an

opportunity to present witnesses, expert or otherwise, in

which the law enforcement officials wanting to release the

information must bear the burden of proving that public

safety necessitates release of the offender’s registry

information.

An order granting plaintiff's motion for summary

judgment regarding the notification provisions of the Act

and granting defendant’s motion for summary judgment

regarding the registration provisions shall enter.

s/ Thomas A. Wiseman, Jr.

Thomas A. Wiseman, Jr.

Senior United States District Judge

57a

Appendix B

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

AT NASHVILLE

No. 3:95-0380

ARTHUR CUTSHALL,

Plaintiff,

DON SUNDQUIST, Governor

of the state of Tennessee:

Defendant.

ORDER

For the reasons put forth in the accompanying

memorandum, the court hereby GRANTS in part and

DENIES in part plaintiff Arthur Cutshall’s motion for

summary judgment. The court further GRANTS in part and

DENIES in part defendant Governor Don Sundquist’s motion

for summary judgment. Specifically, the court GRANTS

plaintiff's motion insofar as it relates to the constitutionality

of the notification provisions of the Tennessee Sex Offender

Registration Act, finding that the notification provisions

violate the due process ri ghts of plaintiff. The court GRANTS

defendant’s motion with regard to the registration provisions,

finding that they do not violate the Constitution as alleged

by plaintiff.

Ss/ Thomas A. Wiseman, Jr.

Thomas A. Wiseman, Jr.

Senior United States District Judge

58a

APPENDIX C — MEMORANDUM AND ORDER OF

THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE AT NASHVILLE

DATED AND ENTERED SEPTEMBER 17, 1997

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

AT NASHVILLE

No. 3:95-0380

ARTHUR CUTSHALL,

Plaintiff,

DON SUNDQUIST, Governor

of the state of Tennessee;

Defendant.

MEMORANDUM

I. INTRODUCTION

Before the court is plaintiff Arthur Cutshall’s motion

for a preliminary injunction. Plaintiff has filed an action

against the state of Tennessee alleging the unconstitutionality

of the Tennessee Sex Offender Registration and Monitoring

Act (“the Act”). Plaintiff asserts violations of the ex post

facto laws contained in Article 1 § 10 of the U.S. Constitution

and Article 1, § 11 and 20 of the Tennessee Constitution,

the prohibition against bills of attainder found in Article 1,

59a

Appendix C

§ 10 of the U.S. Constitution, the double jeopardy clause of

the Fifth Amendment of the U.S. Constitution, the Eighth

Amendment of the U.S. Constitution, as well as the rights to

privacy, substantive and procedural due process, freely travel

and equal protection guaranteed under the federal and state

constitutions. The Act requires that all those convicted of

the sex crimes specified in the Act register with the Tennessee

Bureau of Investigation within ten days of release.

Registration requires the convicted sex offender to provide

to the Tennessee Bureau of Investigation his name, address,

crime of conviction, place of employment, date and place of

birth, social security number, state and number of any valid

driver license, and name and address of any probation or

parole officer responsible for supervising the offender. Tenn.

Code Ann. § 40-39-103 (1996). This information remains

confidential, unless law enforcement officials decide

disclosure is necessary for the protection of the public.

Plaintiff Cutshall has filed a motion for summary

judgment and defendant Governor Don Sundquist has filed

4 motion to dismiss, or in the alternative for summary

judgment. These motions are pending before the court.

Plaintiff Cutshall is Serving a twelve year sentence for

aggravated sexual battery. He was convicted in 1990, prior

to the enactment of the Act. As a result of accumulation of

good time credits, plaintiff's release is imminent. As

registration under the Act is required within ten days of

release from prison, plaintiff requested a preliminary

injunction of the Act as it applies to him.

60a

Appendix C

Il. PRELIMINARY INJUNCTION

When deciding whether to issue a preliminary injunction,

a court should address four factors: (1) the likelihood of

success on the merits; (2) the irreparable harm that could

result if the injunction is not issued; (3) the impact on the

public interest; and (4) the possibility of substantial harm to

others. Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th

Cir. 1992) (citing Forry, Inc. v. Neundorfer, Inc., 837 F.2d

259, 262 (6th Cir.1988)). The court need not find all four

factors in order to grant a preliminary injunction, but rather

must balance the four in arriving at its decision to grant or

deny a request for preliminary injunction. Performance

Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373,

1381 (6th Cir. 1995). The court addresses each factor in turn,

bearing in mind “that if the plaintiff shows a substantial

likelihood of success on the merits that the other three factors

will favor the plaintiffs as well.” Planned Parenthood

Association of Nashville v. McWherter, 716 F. Supp. 1064,

1066 (M.D. Tenn. 1989)

A. Likelihood of Success on the Merits

Plaintiff raises a number of potential grounds upon which

the Act might be found unconstitutional. Among the most

compelling is plaintiff's assertion that the notification

procedures violate his right to due process under the federal

and Tennessee constitutions. The notification provision of

the act simply states that law enforcement officials “may

release relevant information deemed necessary to protect the

public concerning a specific sexual offender.” Tenn. Code

Ann. § 40-39-106(c) (1996). Assessment of the necessity of

61a

Appendix C

disclosure of registry information rests solely within the

discretion of law enforcement. Under the Act, the convicted

offender receives no Opportunity to contest the necessity of

the release of the information, nor do there appear to be any

methods for checking or controlling this tremendous

discretionary power held solely in the hands of law

enforcement.

Plaintiff asserts that release of the information contained

in the registry would subject him to the loss of a number of

rights and interests including his right to due process, his

right to privacy, and his travel rights. He further contends

that the disclosure of registry information will result in

plaintiff and his family being Subject to “vigilantism,

retribution, unjustified Suspicion and stigma.”

In order to trigger procedural due process, plaintiff must

demonstrate infringement by the state upon a property or

liberty interest. Board of Regents v. Roth, 408 U.S. 564,

569-70 (1972). While plaintiff alleges that his reputation will

be sullied if the registry information is disclosed, the

Supreme Court has held that damage to reputation alone is

not sufficient to trigger procedural due process. Paul v. Davis,

424 U.S. 693, 701 (1976). Plaintiff must assert injury toa

liberty or property interest in addition to damage to his

reputation.

Plaintiff has alleged an infringement upon his right to

privacy and implicitly upon his right to follow a chosen

profession. Infringement upon these rights in conjunction

with the damage to plaintiff's reputation in potentially being

branded a dangerous sex offender most likely suffices to

62a

Appendix C

trigger the protections of procedural due process. An

opportunity for a convicted offender to be heard would be

required prior to notification of anyone outside the law

enforcement community of registry information. Plaintiff has

shown sufficient likelihood of success on the merits to meet

that portion of the test for granting of a preliminary

injunction.

B. Irreparable Harm in Absence of Injunction

Upon disclosure of plaintiff's registry information to

anyone other than law enforcement, plaintiff would suffer

irreparable harm. Because there is no procedure to predict

whether or not law enforcement would find it necessary to

disclose the fact that plaintiff is a convicted sex offender,

the possibility of irreparable harm in the absence of a

preliminary injunction is very real.

C. Impact on the Public Interest

The public may very well have an interest in knowing

whether there is a dangerous sex offender living in their

neighborhood. This interest, however, is not so significant

as to outweigh the interest of a convicted sex offender in

having an opportunity to refute whether he or she actually

does pose a danger to the community before that information

is released.

D. Possibility of Harm to Others

The possibility of harm to others cannot fairly be

determined in this case. If plaintiff is dangerous, then the

63a

Appendix C

public should be notified so as to take proper precautions.

In this case, however, there is no evidence indicating whether

or not plaintiff is likely to repeat his offense, thereby posing

a danger to the community. Because the state is not required

to prove that the plaintiff is a danger before notifying the

public, the court has no basis upon which to assess the degree

of risk posed by plaintiff.

III. CONCLUSION

In balancing the above four factors (with emphasis on

the likelihood of success on the merits), the court DENIES

the preliminary injunction as it relates to registration of the

plaintiff in the state’s sex offender registry and GRANTS

the preliminary injunction as it relates to the potential

disclosure of that registry information to anyone except those

in law enforcement.

s/ Thomas A. Wiseman, Jr.

Thomas A. Wiseman, Jr.

Senior U.S. District Judge

64a

Appendix C

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

AT NASHVILLE

No. 3:95-0380

ARTHUR CUTSHALL,

Plaint: ff,

DON SUNDQUIST, Governor

of the state of Tennessee;

Defendant.

ORDER

For the reasons described in the accompanying

memorandum, the court GRANTS in part and DENIES in

part plaintiff's motion for a preliminary injunction of the

Tennessee Sex Offender Registration and Monitoring Act.

The court DENIES the preliminary injunction as it relates to

registration of the plaintiff in the state’s sex offender registry

and GRANTS the preliminary injunction as it relates to the

potential disclosure of that registry information to anyone

except those in law enforcement. The court needs additional

time to consider the merits of the case. A memorandum and

opinion in response to the pending motions for summary

judgment and to dismiss will issue in the next ten days.

s/ Thomas A. Wiseman, Jr.

Thomas A. Wiseman, Jr.

Senior United States District Judge

65a

APPENDIX D — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

DENYING PETITION FOR REHEARING DATED

AND FILED NOVEMBER 19, 1999

97-6276/6321

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ARTHUR CUTSHALL,

Plaintiff-Appellee/Cross-Appellant,

¥.

DON SUNDQUIST, GOVERNOR OF THE

STATE OF TENNESSEE,

Defendant-Appellant/Cross-Appellee.

ORDER

BEFORE: JONES, RYAN, and BATCHELDER,

Circuit Judges.

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to the

original panel members but also to all other active judges of

this court, and no judge of this court having requested a vote

on the suggestion for rehearing en banc, the petition for

rehearing has been referred to the original panel.

66a

Appendix D

The panel has further reviewed the petition for rehearing

and concludes that the issues raised in the petition were fully

considered upon the original submission and decision of the

case. Accordingly, the petition 1s denied. Judge Jones would

grant rehearing for the reasons stated in nis dissent.

ENTERED BY ORDER OF

THE COURT

s/ Leonard Green

Leonard Green, Clerk

67a

APPENDIX E — RELEVANT STATUTES

AND RULES

Tenn. Code § 4-6-140

4-6-140. Records of inmates. — (a) The commissioner

of correction shall keep in the commissioner’s own Office,

accessible only to the commissioner’s secretary, and proper

clerks, except by the commissioner’s consent, or the orders

of the judge of a court of record, a record showing the name,

residence, sex, age, nativity, occupation, condition and date

of entrance or commitment of every inmate, patient or pupil

in the several institutions governed by the commissioner,

the date, cause and terms of discharge, and the conditions of

such person at the time of leaving, and also all transfers from

one (1) institution to another, and, if dead, the date and cause.

(b) These and such other facts as the commissioner may,

from time to time, require shall be furnished by the managing

officer of each institution, within ten (10) days after the

commitment, entrance, death or discharge of an inmate,

patient or pupil, and the managing officer shall make a special

report within twenty-four (24) hours thereafter, giving the

circumstances as fully as possible.

contrary, all inmate records and the information contained

therein shall be open for public inspection. Any information

contained in an inmate record that is otherwise made

confidential by the provisions of § 10-7-504, shall remain

confidential. The commissioner has the authority to delete

from any such record the name of, or any identifying

information concerning, any department employee, law

enforcement officer or informant or other inmate if, in the

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commissioner’s opinion, public disclosure of such name or

information would place the safety of such employee, law

enforcement officer, informant or inmate in jeopardy. If the

commissioner determines that a name or identifying

information cannot be deleted in a manner sufficient to

protect any such person, the commissioner may refuse to

disclose the document in which such name or identifying

information appears.

Tenn. Code § 4-21-101

4-21-101. Purpose and intent. — (a) It is the purpose

and intent of the general assembly by this chapter to:

(i) Provide for execution within Tennessee of the

policies embodied in the federal Civil Rights Acts of 1964,

1968 and 1972, the Pregnancy Amendment of 1978, and the

Age Discrimination in Employment Act of 1967, as

amended;

(2) Assure that Tennessee has appropriate legislation

prohibiting discrimination in employment, public

accommodations and housing sufficient to justify the deferral

of cases by the federal equal employment opportunity

commission, the department of housing and urban

development, the secretary of labor and the department of

justice under those statutes;

(3) Safeguard all individuals within the state from

discrimination because of race, creed, color, religion, sex,

69a

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age or national origin in connection with employment, public

accommodations, and because of race, color, creed. religion,

Sex Or national origin in connection with housing;

(4) Protect their interest in personal dignity and freedom

from humiliation;

(5) Make available to the state their full productive

capacity in employment;

(6) Secure the state against domestic strife and unrest

which would menace its democratic institutions;

(7) Preserve the public safety, health and general

welfare; and

(8) Further the interest, rights, opportunities and

privileges of individuals within the state.

(b) The prohibitions in this chapter against

discrimination because of age in connection with

employment and public accommodations shall be limited to

individuals who are at least forty (40) years of age.

* * *

Tenn. Code § 39-13-524

39-13-524. Sentence of community supervision for

life. — (a) In addition to the punishment authorized by the

specific statute prohibiting the conduct, any person who, on

or after July 1, 1996, commits a violation of § 39-13-502,

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§ 39-13-503, § 39-13-504, § 39-13-522, or attempts to

commit a violation of any such section, shall receive a

sentence of community supervision for life.

(b) The judgment of conviction for all persons to whom

the provisions of subsection (a) apply shall include that such

person is sentenced to community supervision for life.

commence immediately upon the expiration of the term of

imprisonment imposed upon such person by the court or upon

such person’s release from regular parole supervision,

whichever first occurs.

(d)(1) A person on community supervision shall be

under the jurisdiction, supervision and control of the board

of probation and parole in the same manner as a person under

parole supervision. The boaré is authorized on an individual

basis to establish such conditions of community supervision

as are necessary to protect the public from such person

committing a new sex offense as well as promoting the

rehabilitation of the person.

(2) The board is authorized to impose and enforce a

Supervision and rehabilitation fee upon a person on

community supervision similar to the fee imposed by §

40-28-201. To the extent possible, the board shall set such

fee in an amount that will substantially defray the cost of

the community supervision program. The board shall also

establish a fee waiver procedure for hardship cases and

indigency.

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Tenn. Code § 39-13-525

39-13-525. Release from community supervision. —

(a) After a person sentenced to community supervision

pursuant to § 39-13-524 has been on such supervision for a

period of fifteen (15) years, such person may petition the

sentencing court for release from community supervision.

(b) Upon receiving such a petition, the court shall, at

least thirty (30) days prior to a hearing on the petition, cause

the office of the district attorney general responsible for

prosecuting the person to be notified of the person’s petition

for release from supervision. Upon being notified, the district

attorney general shall conduct a criminal history check on

such person to determine if the person has been convicted of

a criminal offense during the period of community

supervision. The district attorney general shall report the

results of such criminal history check to the court, together

with any other comments the district attorney general may

have concerning the person’s petition for release. The district

attorney general may also appear and testify at the hearing

in lieu of or in addition to submitting written comments.

and the date established by the court for a hearing on the

petition, if the person is entitled to a hearing, the person shall

be examined and evaluated by a psychiatrist or licensed

psychologist with health service designation approved by

the board. The cost of such examination and evaluation shal]

be the sole responsibility of the person petitioning for release

from supervision. No hearing on such petition may be

conducted until such person has been examined and evaluated

in accordance with this subsection.

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Appendix E

(d)(1) If the report of the district attorney general

indicates that the petitioner has been convicted of a criminal

offense while under community supervision, the court shall

deny the petition without conducting a hearing.

(2) Ifthe report of the district attorney general indicates

that the petitioner has not been convicted of a criminal

offense while under community supervision, the court shall

conduct a hearing on the petition. At the hearing, the court

shall call such witnesses, including the examining

psychiatrist or licensed psychologist with health service

designation or the prosecuting district attorney general, as

the court deems necessary to reach an informed and just

decision on whether the petitioner should be released from

community supervision. The petitioner may offer such

witnesses and other proof at the hearing as is relevant to the

petition.

(3) If a petition for release from supervision is denied

by the court, such person may not file another such petition

for a period of three (3) years.

* * x

Tenn. Code § 39-13-703

39-13-703. Definitions. — As used in this part, unless

the context otherwise requires:

(1) “Board” means the sex offender treatment board

created in § 39-13-704;

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(2) “Sex offender” means any person who is convicted

in this state, on or after January 1, 1996, of any sex offense,

or if such person has been convicted in another state of an

offense that would constitute a sex offense in this state, and

who is subject to parole or probation supervision by the board

of probation and parole pursuant to an interstate compact;

(3) “Sex offense” means any felony or misdemeanor

offense described as follows:

(A) Rape of a child, as defined in

§ 39-13-522:

(B) Aggravated rape, as defined in

§ 39-13-502:

(D) Aggravated sexual battery, as defined in

§ 39-13-504;

(E) Sexual battery, as defined in § 39-13-505;

(F) Statutory rape, as defined in § 39-13-506:;

(G) Incest, as defined in § 39-15-302:

(H) Criminal attempt, conspiracy, or

solicitation to commit any of the offenses

specified in this subdivision (3); or

(1) Criminal responsibility for the facilitation

ofa felony when the specific felony facilitated is

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any of the offenses specified in this subdivision

(3); and

(4) “Treatment” means therapy and supervision of any

sex offender which conforms to the standards created by the

board pursuant to § 39-13-704.

* * *

Tenn. Code § 40-28-119

40-28-119. Records of parolees. — (a) The board shall

cause to be kept records which may include social, physical,

mental, psychiatric and criminal information for every inmate

considered for or released, under its supervision. The board

shall also cause to be kept the same records for every person

placed on probation supervision. Such records shall contain

reports of probation and parole officers with relation to such

probationers and parolees.

(b) Such records shall be filed in the central office of

the board and shall be organized in accordance with the most

modern methods of filing and indexing so there will always

be immediately available information about each such

probationer and parolee.

the privacy of such records and of the records of its

employment bureau, and their use by others than the board

and its staff.

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Tenn. Code § 40-39-101

40-39-1011. Short title.

This chapter shall be known and may be cited as the

“Sexual Offender Registration and Monitoring Act.”

* * *

Tenn. Code § 40-39-102

40-39-102. Definitions.

As used in this chapter, unless the context otherwise

requires:

(1) “Local law enforcement agency” means:

(A) Within territory of a municipality, the municipal

police force;

(B) Within territory of a county having a metropolitan

form of government, the metropolitan police force; and

sheriff's office;

(2) “Sexual offender” means a person who is, or has

been, convicted in this state of committing a sexual offense

or who is, or has been, convicted in another state of

committing an act which would have constituted a sexual

offense if it had been committed in this State; provided, that:

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(A) Conviction occurs on or after January 1, 1995; or

(B) If conviction occurred prior to January |, 1995, the

person:

(1) Remains under or is placed on probation, parole, or

any other alternative to incarceration on or after January 1,

1995;

(11) Is discharged from probation, parole, or any other

alternative to incarceration on or after January 1, 1995; or

(111) Is discharged from incarceration without supervision

on or after January 1, 1995;

(3) “Sexual offense” means:

(A) The commission of any act that, on or after

November 1, 1989, constituted the criminal offense of:

(1) Aggravated rape, under § 39-13-502;

(11) Rape, under § 39-13-503;

(111) Aggravated sexual battery, under § 39-13-504;

(iv) Sexual battery, under § 39-13-505;

(v) Statutory rape, under § 39-13-506;

(vi) Aggravated prostitution, under § 39-13-516;

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Appendix E

(vii) Sexual exploitation ofa minor, under § 39-] 7-1003:

(villi) Aggravated sexual exploitation of a minor, under

§ 39-17-1004;

(ix) Especially aggravated sexual exploitation of a

minor, under § 39-17-1005:

(x) Incest, under § 39-15-302: or

(x1) Attempt, under § 39-12-101, solicitation, under

§ 39-12-102, or conspiracy, under § 39-12-103, to commit

any of the offenses enumerated within this subdivision

(3)(A); or

(B) The commission of any act that, prior to November

|, 1989, constituted the criminal offense of:

(i) Aggravated rape, under § 39-2-603 [repealed];

(ii) Rape, under § 39-2-604 [repealed];

(111) Aggravated sexual battery, under § 39-2-606

[repealed];

(iv) Sexual battery, under § 39-2-607 [repealed];

(v) Statutory rape, under § 39-2-605 [repealed];

(vi) Assault with intent to commit rape or attempt to

commit rape or sexual battery under § 39-2-608 [repealed];

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Appendix E

(vii) Incest, under § 39-4-306 [repealed];

(vii1) Use of minor for obscene purposes, under

§ 39-6-1137 [repealed];

(1x) Promotion of performance including sexual conduct

by minor, under § 39-6-1138 [repealed];

(x) Criminal sexual conduct in the first degree, under

§ 39-3703 [repealed];

(xi) Criminal sexual conduct in the second degree, under

§ 39-3704 [repealed];

(xi1) Criminal sexual conduct in the third degree, under

§ 39-3705 [repealed];

(xii1) Solicitation, under § 39-1-401 [repealed] or

§ 39-118(b) [repealed], attempt, under § 39-1-501 [repealed],

§ 39-605 [repealed], or § 39-606 [repealed], or conspiracy,

under § 39-1-601 [repealed] or § 39-1104 [repealed], to

commit any of the offenses enumerated within subdivision

(3)(B); and

(4) “TBI” means the Tennessee bureau of investigation.

* * *

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Appendix E

Tenn. Code § 40-39-103

40-39-103. Sexual offender registration — Monitoring

forms — Contents.

Within ten (10) days following release on probation,

parole, or any other alternative to Incarceration; within ten

(10) days following discharge from incarceration without

supervision; within ten (10) days following any change of

residence; and within ten (10) days after coming into a

municipality or county in which the sexual offender

temporarily resides or is domiciled for such length of time:

each sexual offender shall complete a TBI sexual offender

registration/monitoring form and shall cause such form to

be delivered to TBI headquarters in Nashville. Sexual

offender registration/monitoring forms shall require

disclosure of the following information:

(1) Complete name as well as any alias;

(2) Date and place of birth;

(3) Social security number;

(4) State of issuance and identification number of any

valid driver license;

(5) For a sexual offender on supervised release, the

name, address, and telephone number of the registrant’s

parole officer, probation officer or other person responsible

for the registrant’s supervision;

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Appendix E

(6) Sexual offense or offenses of which the registrant

has been convicted;

(7) Current place and length of employment;

(8) Current address and length of residence at such

address; and

(9) Such other registration and/or monitoring

information as may be required by rules promulgated by the

TBI in accordance with the provisions of the Uniform

Administrative Procedures Act, compiled in title 4, chapter 5.

Tenn. Code § 40-39-104

40-39-104. Verification — Monitoring forms.

At least once every ninety (90) days following receipt

of the initial registration/monitoring form pursuant to

§ 40-39-103, the TBI shall mail a nonforwardable, verification/

monitoring form to the registrant’s last reported address. The

form shall require verification of the continued accuracy of

the most recent registration/monitoring form submitted by

the sexual offender. Within ten (10) days following receipt

of the verification/monitoring form, the registrant shall

complete the form and shall cause such form to be delivered

to TBI headquarters in Nashville.

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Appendix E

Tenn. Code § 40-39-105

40-39-105. Creation and distribution of forms —

Acknowledgment forms.

(a) Sexual offender registration/monitoring forms and

veri fication/monitoring forms shall be designed, printed, and

distributed by and at the expense of the TBI. Sexual offender

registration/monitoring forms shall be available from local

law enforcement agencies; the TBI: the Tennessee

department of correction; the Tennessee department of

safety; and parole officers, probation officers, and other

public officers and employees assigned responsibility for the

supervised release of convicted felons into the community.

(b)(1) The officer or employee responsible for

supervising a sexual offender who is, Or has been, released

on probation, parole, or any other alternative to incarceration.

shall promptly obtain the offender’s signed statement

acknowledging that the named officer or employee:

(A) Has fully explained, and the offende: understands.

the registration and verification requirements and sanctions

of this chapter; and

(B) Has provided the offender with a blank TBI sexual

offender registration/monitoring form.

(2) Forms for such statements of acknowledgment shall

be designed, printed, and distributed by, and at the expense

of, the TBI and shall require the officer or empioyee to report

the offender’s residential address. The officer or employee

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Appendix E

shall cause the signed and completed acknowledgment form

to be delivered to TBI headquarters in Nashville.

sexual offender from incarceration with or without

supervision, the warden of the correctional facility or jail

shall obtain the offender’s signed statement acknowledging

that the named warden or the warden’s agent has fully

explained, and the offender understands, the registration and

verification requirements and sanctions of this chapter.

Forms for such statements of acknowledgment shall be

designed, printed, and distributed by, and at the expense of,

the TBI and shall require disclosure of the offender’s

anticipated residential address. The warden shall promptly

cause the signed and completed acknowledgment form to be

delivered to TBI headquarters in Nashville.

(d) Through press releases, public service announcements,

and through other appropriate public information activities,

the TBI shall strive to ensure that all sexual offenders,

including those who move into this state, are informed and

periodically reminded of the registration and verification

requirements and sanctions of this chapter.

* * *

Tenn. Code § 40-39-106

40-39-106. Centralized record system — Reporting

— Apprehension of violators — Immunity from liability.

(a) Using information received or collected pursuant to

this chapter, the TBI shall establish, maintain, and update a

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Appendix E

centralized record system of sexual offender registration and

verification information. The TBI shall promptly report

current sexual offender registration and verification

information to:

(1) The local law enforcement agency for the offender’s

place of residence;

(2) The local law enforcement agency for the offender’s

previous place of residence if a change of residence is

indicated;

(3) The local law enforcement agency for the offender’s

place of employment;

(4) The local law enforcement agency for the oftender’s

previous place of employment if a change of employment is

indicated;

(5) When applicable, the probation officer, parole

officer, or other public officer or employee assigned

responsibility for the offender’s supervised release; and

(6) The identification division of the federal bureau of

investigation.

(b) Upon request of the TBI, a local law enforcement

agency, probation officer, parole officer, or other public

officer or employee assigned responsibility for the offender’s

supervised release, shall assist in the investigation and

apprehension of a sexual offender suspected of violating the

provisions of this chapter.

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Appendix E

(b), information reported on sexual offender registration/

monitoring forms, verification/monitoring forms, and

acknowledgment forms shall be confidential; provided, that

the TBI or a local law enforcement agency may release

relevant information deemed necessary to protect the public

concerning a specific sexual offender who is required to

(d) Notwithstanding the provisions of any law to the

contrary, officers and employees of the TBI; officers and

employees of local law enforcement agencies; probation

officers; parole officers; and other public officers and

employees assigned responsibility for sexual offenders’

supervised release into the community; shall be immune from

liability relative to their good faith actions, omissions, and

conduct pursuant to this chapter.

Tenn. Code § 40-39-107

40-39-107. Petition to remove duty to report —

Hearings — Required findings.

(a) No sooner than ten (10) years after termination of

active supervision on probation, parole, or any other

alternative to incarceration or no sooner than ten (10) years

after discharge from incarceration without supervision, a

person required to submit sexual offender registration/

monitoring forms and verification/monitoring forms may file

a petition in the circuit court of the county in which the person

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Appendix E

resides for an order relieving the person of the continuing

duty to submit such forms. The district aitorney general of

the county shall be named and shall serve as the respondent

in the petition.

(b) The court shall hold a hearing on the petition. In

determining whether to grant the relief requested, the court

shall consider:

(1) The nature of the offense that required registration:

(2) The age and number of victims;

(3) The degree of violence involved in the offense;

(4) Other criminal and relevant noncriminal behavior

of the petitioner both before and after the conviction that

required registration;

(5) The period of time during which the petitioner has

not reoffended; and

(6) Any other relevant factors.

(1) Has complied with the provisions of this chapter;

(2) Is rehabilitated: and

(3) Does not pose a threat to the safety of the public,

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Appendix E

then the court shall enter an order relieving the petitioner

of the continuing duty to submit registration/monitoring

forms and verification/monitoring forms. Upon receiving a

certified copy of such order of the court, the TBI shall

expunge from the centralized record system of sexual

offender registration and verification information all data

pertaining to the petitioner and shall so notify the local law

enforcement agency for the petitioner’s place of residence

and the local law enforcement agency for the petitioner’s

place of employment.

Tenn. Code § 40-39-108

40-39-108. Violations — Penalties.

Knowing falsification of a sexual offender registration/

monitoring form or verification/monitoring form shall

constitute a Class A misdemeanor for the first offense,

punishable by confinement in the county jail for not less

than one hundred eighty (180) days and shall constitute a

Class E felony for the second or subsequent offense.

Additionally, if the person is on probation, parole, or any

other alternative to incarceration, then such falsification shall

also constitute sufficient grounds for, and may result in,

revocation of probation, parole, or other alternative to

incarceration. Knowing failure to timely disclose required

information or to timely deliver required registration/

monitoring or verification/monitoring forms to the TBI shall

be deemed to be falsification to the same extent as actually

providing false information.

* * *

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Appendix E

RULES

THE TENNESSEE DEPARTMENT OF CORRECTION

ADMINISTRATIVE SERVICES DIVISION

* * *

0420-1-2-.01 POLICY. Information contained in inmate

records maintained by the Department of Correction will be

available to the public upon demand, except for the

information which is confidential by law or the release

of which would place the safety of an employee, law

enforcement officer or informant, or other inmate in jeopardy.

* * *

0420-1-2-.02 LOCATION. The Department of Correction’s

official inmate record files are located in the Rachel Jackson

State Office Building, 320 Sixth Avenue North, Nashville,

Tennessee. Institutions may not release information from

their inmate institutional files directly to the public.

* * *

0420-1-2-.03 REQUEST FOR INMATE

INFORMATION. Any individual wanting to view and/or

retrieve information contained in a current or former inmate’s

record must first submit a written request for the desired

information. This request for information must include:

(1) The name, address and telephone number of the

person making the request,

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(2) The reason for the request, and

(3) What information or documents are requested.

(A list of available information will be provided on

request.)

0420-1-2-.04 ACCESS.

(1) Because the Department of Correction maintains its

inmate records on microfilm, advance arrangements

to view and/or retrieve information from the

Department’s inmate record files must be made.

(2) Arrangements to view and/or retrieve information

from inmate record files may be made by contacting:

Public Information Officer

Department of Correction

Fourth Floor, Rachel Jackson State Office Building

320 Sixth Avenue North

Nashville, Tennessee 37219-5252

(615) 741-2072

(3) Members of correctional, law enforcement, judicial

or social services agencies should contact:

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Manager

Operational Support Services

Management Information Services

Department of Correction

Ground Floor, Rachel Jackson State Office Building

320 Sixth Avenue North

Nashville, Tennessee 37219-5252

(615) 741-0737

* * *

0420-1-2-.05 PROCESSING OF REQUEST FOR

INMATE INFORMATION. The manager of the

Department’s operational support services section, or a

designee, will be responsible for gathering and initially

reviewing the requested inmate information and will respond

directly to information requests originating from members

of correctional, law enforcement, judicial or social services

agencies. The public information officer shall respond to all

other requests for inmate information after obtaining the

desired information from the operational support services

manager/designee. While the actual time for processing a

request for inmate information will depend upon the volume

of requests received and the complexity of the information

desired, an effort should be made to respond to the request

within two weeks of its receipt. There will be a charge of

$10.00 plus 20 cents per page for providing copies of any

requested information.

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Appendix E

0420-1-2-.06 CONFIDENTIAL INMATE

INFORMATION.

(1) The following information is considered confidential

and shall not be released to the general public absent

a valid court order or subpoena:

(a) Inmate medical or mental health records.

(b) Inmate educational records.

Department’s internal affairs section.

(d) The name or any identifying information

relating to any Department of Correction

employee, law enforcement officer or informant

or inmate, the public disclosure of which would

tend to place the safety of said individual in

jeopardy.

Inmates may, however, review and obtain copies of

their educational, medical or mental health records

as provided for in Department of Correction policy,

and copies of these records may be released with

the inmate’s consent.

(2) Any individual whose request for information from

an inmate’s record is denied shall be informed of

the reason for the denial of the request and may

appeal any such denial to the commissioner, or an

individual designated by the commissioner to hear

such appeals.

Nn eT

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Appendix E

(3) Any individual whose request for inmate

information is denied following appeal to the

commissioner, or his designee, may obtain judicial

review of the denial pursuant to 7.C.A. §10-7-505,

* * *

1190-1-1-.14 CONFIDENTIALITY OF PAROLE AND

CLEMENCY RECORDS.

(1) Confidential Information.

(a) The following information is considered

confidential by the Board and will not be

released unless listed as an exception under rule

1 100-1-1-.14(4).

Information contained in Board files that is

produced, supplied or generated by other

agencies. Individuals making inquiry of

such information shall be informed whether

such information is contained in Board files

and, if so, directed to the controlling

agency.

Psychological evaluations provided,

however, that such may be released to

mental health officials who are treating the

inmate/parolee if a release of information

form signed by the inmate/parole is

presented with the request.

10.

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Facts-of-the-Offense Report

Medical Records

Parolees’ home and work addresses and

telephone numbers

Parole Officers’ opinions and statements

recorded in the case file.

Parole Officers’ opinions and statements

recorded in the case file.

Written clemency recommendations to the

Governor.

Statements in opposition of a parolee by

victims, families of victims, families of

inmates; private citizens who request

confidentiality; public officials who request

confidentiality.

Other information. The : lease of which the

Board specifically finds would be a serious

safety risk to the public, staff, parolee or

inmate.

(2) Information Available for Release.

(a) The following information may be released

upon a verbal or written request indicating the

name of the individual mz xing the request, date

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Appendix E

of request, and the specific information

requested.

10.

hearing and decision-making policy and

procedures

Whether an inmate; is being considered for

parole or clemency

Whether parole or clemency has been

granted or denied

effective date for parole

Statements in support of a parole

statements in opposition of a parole which

do not fall within the purview of (1)(a)(9).

clemency applications and supporting

documentation

date, time and location of hearings

parole certificates

reasons for the Board decisions listed on

Notice of Board Action

social security numbers may be released to

employers

(3)

(4)

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Appendix E

(b) Requests for information from field supervision

files shall be directed to the Regional Director

or his/her designee. The Regional Director or

his/her designee will review the records and

release information available under rule 1 100-

1-1-. 14(2)(a).

Any person may make a written request to the Board

the release of any other information. The Board shall

review such request and determine whether or not

such information may be released.

Requests From Law Enforcement Officials. Law

enforcement officials who are conducting active

investigations shall be provided information as

necessary to assists in their investigations. Upon

verification of the identity of the requesting official

the following information may be released:

(a) parolee’s aliases

(b) parolee’s M.O. (modus operandi or mode of

operation)

(d) parolee’s place of employment

(e) parolee’s photographs and fingerprints

(f) parolee’s social security number

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Appendix E

(g) parolee’s telephone number

(h) facts-of-the-offense reports

(1) whether a Board of Parolees’ warrant has been

issued and a parolee has been arrested on a

Board of Parolees’ warrant

(j) violation reports

(k) information on assets of persons currently or

previously on parole who owe court fines.

Other information may be released to law

enforcement officials upon written request, subject

to Board approval unless listed as an exception under

rule 1100-1-1-.14(1)(a).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.