Doe v. O'CONNOR, 49S00-0301-CV-1.

• Decision Date: 26 June 2003
• Docket Number: No. 49S00-0301-CV-1.,49S00-0301-CV-1.
• Citation: 790 N.E.2d 985
• Parties: John DOE, on his own behalf and on behalf of a class of those similarly situated, Appellants (Plaintiffs below), v. Catherine O'CONNOR, in her official capacity as Director of the Indiana Criminal Justice Institute and James A. Herman, in his official capacity as Sheriff of Allen County, on his own behalf and on behalf of those similarly situated, Appellees (Defendants below).
• Court: Indiana Supreme Court

790 N.E.2d 985

John DOE, on his own behalf and on behalf of a class of those similarly situated, Appellants (Plaintiffs below), v. Catherine O'CONNOR, in her official capacity as Director of the Indiana Criminal Justice Institute and James A. Herman, in his official capacity as Sheriff of Allen County, on his own behalf and on behalf of those similarly situated, Appellees (Defendants below).

No. 49S00-0301-CV-1.

Supreme Court of Indiana.

June 26, 2003.

Kenneth J. Falk, Indianapolis, IN, Attorney for Appellant. Steve Carter, Attorney General of Indiana, Thomas M. Fisher, Special Counsel, Doug Webber, Deputy Attorney General, Indianapolis, IN, Attorneys for Catherine O'Connor.

John Feighner, Fort Wayne, IN, Attorney for James A. Herman.

ON PETITION TO TRANSFER

SULLIVAN, Justice.

The Legislature requires photographs and home addresses of people who have been convicted of sex offenses be posted on the Internet. John Doe, a man previously convicted of a sex offense who has completed his sentence, contends that he has a constitutional right to a court hearing on whether he poses any future danger to society before his picture and address are posted. Because the material is posted based on the fact of previous conviction, not the fact of current (or future) dangerousness, Doe has no constitutional right to the hearing he seeks.

Background

In 1994, the Indiana General Assembly enacted a sex offender registry law. Ind. Code § 5-2-12 et seq. Under this law, individuals convicted of predicate sex and violent offenses specified by the law must register with local law enforcement authorities. Ind.Code § 5-2-12-5 (superseded Jan. 1, 2003).¹ The law requires the Indiana Criminal Justice Institute ("CJI") to maintain and publish for public dissemination in hard copy and (since 1996) on the Internet, a directory of the names, aliases, dates of birth, physical description, county of residence, and description of offense of those convicted. This directory is known as the Indiana Sex and Violent Offender Registry. Ind.Code § 5-2-12-11 (superseded Jan. 1, 2003); Ind.Code § 5-2-6-3. We will refer to it in this opinion as the "1994 Registry."

The General Assembly made several changes to the sex and violent offender registry law, effective January 1, 2003. The directory is now called the Indiana Sex and Violent Offender Directory. Ind. Code § 5-2-6-3(10). We will refer to it as the "2003 Directory." Relevant to this case, the new law requires individuals subject to its registration requirements to provide a recent photograph of themselves when registering and re-registering. Ind. Code § 5-2-12-6(4). They must re-register every year and update registries if they move or change their names due to marriage. Ind.Code § 5-2-12-8. Finally, under the new version, the CJI is required to publish the home addresses of the registrants in addition to information already published. Ind.Code § 5-2-6-3.5(c).

A second new statute requires Indiana county sheriffs to publish the home addresses and photographs of convicted sex and violent offenders in a separate registry. Ind.Code § 36-2-13-5.5. We will refer to it as the "Sheriffs' Registry." The purpose of the Sheriffs' Registry is "to inform the general public about the identity, location, and appearance of every sex offender residing within Indiana. The web site must provide information regarding each sex offender, organized by county of residence." Id. § 36-2-13-5.5(a). Both the 2003 Directory and the Sheriffs' Registry will be published on the Internet and will contain the photographs and addresses as well as other information about convicted sex offenders currently published by CJI in the 1994 Directory. Id. § 36-2-13-5.5. Included with this information is a notice using the following or similar language:

Based on information submitted to the criminal justice institute, a person whose name appears in this directory has been convicted of a sex offense or a violent offense or has been adjudicated a delinquent child for an act that would be a sex offense or violent offense if committed by an adult.

Ind.Code § 5-2-6-3.5(d). There is no apparent limit to the duration during which a registrant's information will be posted in the 2003 Directory and the Sheriffs' Registry. In fact, the website states: "Information about an offender remains in the directory indefinitely or until the Institute receives a copy of the individual's death certificate or court notification that the person's conviction has been overturned." Indiana Sex and Violent Offender Directory, at http://www.state.in.us/serv/cji—sor (last visited June 26, 2003).

The 2003 Directory and the Sheriffs' Registry are part of a national effort to increase public safety by identifying convicted sex and violent offenders. In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program (Title XVII of the Violent Crime Control and Law Enforcement Act of 1994, codified at 42 U.S.C. § 14071). The Wetterling Act requires states to create registries of offenders convicted of sexually violent offenses or crimes against children, although it appears to permit such registries to be based on a risk assessment. The Act requires offenders to verify their addresses annually for a period of ten years and for life for sexually violent predators. 42 U.S.C. § 14071(b)(6). States that do not establish compliant registration programs are subject to a ten percent reduction of certain federal grants otherwise available for a variety of crime prevention and interdiction programs. 42 U.S.C. § 14071(g)(2). Indiana currently receives approximately $10 million per year from these grant programs, some of which is used to fund judicial initiatives.

Petitioner John Doe has presented the Court with an affidavit to the following effect: that he resides in Allen County and was convicted of an offense listed in Ind. Code § 5-2-12-4(a) after fondling a minor female relative on an isolated occasion; that he received a suspended sentence for the offense; that he has not been convicted of other offenses or committed any other offenses; and that he does not believe he is likely to re-offend, nor does he believe he is a threat to the community. Because of his conviction, he was listed in the 1994 Registry prior to January 1, 2003, and since then has been listed in the 2003 Directory and the Sheriffs' Registry.

Doe says that he resides with his wife and children in Allen County, in a neighborhood where he does not believe his past is known; that his children attend schools where his past is not known; and that he is concerned about the ramifications of dissemination of his photograph and home address. He seeks an opportunity to challenge the inclusion of his information in the 2003 Directory and the Sheriffs' Registry by demonstrating that he is neither dangerous nor likely to re-offend.

Doe sought a preliminary injunction to enjoin the addition of former offenders' home addresses and photographs to the 2003 Directory and the Sheriffs' Registry. The trial court denied the preliminary injunction. He appealed that decision, asking this Court to accept jurisdiction under Ind. Appellate Rule 56(A) and to stay the implementation of the 2003 Directory and the Sheriffs' Registry until we rule on his claims. We accepted jurisdiction and granted the temporary stay requested.

Discussion

Doe does not contend that the posting of information about convicted sex offenders on the Internet in general is unconstitutional. His argument is much more modest. He claims instead that before his photograph and home address are posted on the 2003 Directory and the Sheriffs' Registry, he has a constitutional right to a hearing on whether he poses any danger to society.

Doe initially claimed that the posting of his photograph and home address to the 2003 Directory and the Sheriffs' Registry violated provisions of both the United States and Indiana Constitutions. While this appeal has been pending, the United States Supreme Court decided Connecticut Dep't of Pub. Safety v. Doe, ___ U.S. ___, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), which upheld the constitutionality of a similar registry statute against a similar claim.² As such, Doe has withdrawn his federal constitutional challenge. (Appellants' Notice of Supplemental Authority and Notice of Withdrawing of Portion of Argument at 1, ¶ 2.)

I

Doe first contends that the statutory scheme at issue violates Art. I, § 12, of the Indiana Constitution, the first sentence of which provides: "All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law." (emphasis added). His claim is that his constitutional right to due course of law with respect to his reputation would be violated by the posting of his photograph and home address on the web-based 2003 Directory and Sheriffs' Registry unless he is first provided a hearing as to whether he poses any danger to society.

We have previously held that we will employ the same methodology when analyzing a claimed denial of procedural due process violation of the Due Course of Law Clause of Art. I, § 12, as the Supreme Court as used to analyze claimed violations of the Due Process Clause. McIntosh v. Melroe Co., 729 N.E.2d 972, 976 (Ind. 2000); Indiana High Sch. Athletic Ass'n, Inc. v. Carlberg, 694 N.E.2d 222, 241 (Ind. 1997). Although the recent Connecticut Dep't of Pub. Safety case does not control our analysis, we employ a similar method of analysis and reach a similar result.

In the Connecticut Dep't of Pub. Safety case, the challenged registry was also to be posted on the Internet and made publicly available in certain state offices.³ The Connecticut statute required the covered offenders information to provide their names, addresses, photographs, and DNA samples. A convicted sex offender covered by the law challenged it as a violation of his rights under...