Cutshall v. Sundquist

• Decision Date: 05 November 1998
• Docket Number: Nos. 97-6276,97-6321,s. 97-6276
• Citation: 193 F.3d 466
• Parties: (6th Cir. 1999) Arthur Cutshall, Plaintiff-Appellee/Cross-Appellant, v. Don Sundquist, Govenor of the State of Tennessee, Defendant-Appellant/Cross-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 466

193 F.3d 466 (6th Cir. 1999)

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

Nos. 97-6276, 97-6321

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: November 5, 1998

Decided and Filed: October 4, 1999

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 95-00380--Thomas A. Wiseman, Jr., District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Albert L. Partee III, OFFICE OF THE ATTORNEY GENERAL, CRIMINAL JUSTICE DIVISION, Nashville, Tennessee, for Appellant.

Gregory Mitchell, DORAMUS, TRAUGER & NEY, Nashville, Tennessee, for Appellee.

Before: JONES, RYAN, and BATCHELDER, Circuit Judges.

RYAN, J., delivered the opinion of the court, in which BATCHELDER, J., joined. JONES, J. (pp. 483-85), delivered a separate dissenting opinion.

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, ExPost 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.

I.

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--

(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.

42 U.S.C. § 14071(d) (1994) (emphasis added). Under the federal law, the states were given three years from September1, 1994, within which to comply. See 42 U.S.C. §14071(f)(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 law 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. Code §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/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 provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Tenn. Code § 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 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.

(c)Except as otherwise provided in 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 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. Code. § 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 v. City of Cleveland, 105 F.3d 1107, 1109 (6th Cir.), cert. denied, 118 S. Ct. 335 (1997).

III.

A.

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 plaintiff's injury and the complained-of conduct of the defendant. And third, there must be redressability--a likelihood that the requested relief will redress 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 U.S. 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...