Doe v. Gregoire

• Citation: 960 F.Supp. 1478
• Decision Date: 21 March 1997
• Docket Number: No. C97-188WD.,C97-188WD.
• Parties: Joe DOE, Plaintiff, v. Christine O. GREGOIRE, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

960 F.Supp. 1478

Joe DOE, Plaintiff, v. Christine O. GREGOIRE, et al., Defendants.

No. C97-188WD.

United States District Court, W.D. Washington.

March 21, 1997.

Todd Maybrown, Allen & Hansen, Seattle, for John Doe.

John Joseph Samson, Attorney General's Office, Corrections Division, Olympia, Thomas W. Kuffel, King County Prosecuting Attorney's Office, Civil Division, Seattle, for Christine O. Gregoire.

Christine O'Grady Gregorie, Attorney General's Office, Olympia, pro se.

Thomas W. Kuffel, King County Proscuting Attorney's Office, Civil Division, Seattle, for Norm Maleng.

Sandra L. Cohen, Thomas Sean Sheehan, Seattle City Attorney's Office, Seattle, for Norm H. Stamper, Robert A. Shilling.

ORDER ON MOTION FOR PRELIMINARY INJUNCTION

DWYER, District Judge.

This action under 42 U.S.C. § 1983 was brought by a State of Washington prisoner, who was then about to be released, seeking to enjoin state, county, and local officials from enforcing, against him, a Washington statute that requires sex offenders to register and authorizes local law enforcement agencies to publicize information about them. The pro se complaint makes several constitutional claims, including one under the Ex Post Facto Clause.¹ On February 19, 1997, the plaintiff filed an ex parte motion for a temporary restraining order. On February 20 the motion was granted in part and denied in part: As to registration and notification of law enforcement officers, the motion was denied; as to notification of others including community groups and the media, the motion was granted pending a hearing on plaintiff's motion for a preliminary injunction (Dkt.# 8). On February 27, 1997, the defendant Attorney General of Washington filed a written response to the motion for a preliminary injunction. A hearing on the motion was held in open court on February 28, 1997. All defendants appeared by counsel, and plaintiff appeared pro se. All defendants adopted the Attorney General's written response as their own. The court appointed counsel to represent plaintiff pursuant to this district's Plan for the Representation of Pro Se Litigants in Civil Rights Actions (Dkt.# 24), and adopted a schedule calling for plaintiff's reply brief to be filed on March 6, 1997 (Dkt.# 23). The temporary restraining order was modified to state that no person was prevented from responding to an unsolicited request for information made under Washington's Public Disclosure Law, and that any party could seek further modifications to the order through a telephone conference call placed to the court and other counsel (Dkt.# 23). No such telephonic request has been received. Plaintiff's counsel filed a reply brief on March 6. Supplemental briefs regarding one disputed area were filed at the court's request on March 19. The temporary restraining order, as modified on February 28, has remained in effect pending a ruling on the motion for a preliminary injunction.

The matter has now been thoroughly briefed by both sides, and all materials filed have been considered. No party has requested further oral argument, and none is necessary.

To obtain a preliminary injunction, the moving party must show either (1) a combination of a strong chance of success on the merits and the possibility of irreparable harm, or (2) the existence of serious questions going to the merits and a balance of hardships tipping sharply in his favor. Bernard v. Air Line Pilots Ass'n, Intern., AFLCIO, 873 F.2d 213, 217 (9th Cir.1989). These are not two distinct tests, but opposite ends of a continuum in which the showing of harm varies inversely with the showing of meritoriousness. Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir.1988) (en banc), cert. denied, 490 U.S. 1035, 109 S.Ct. 1933, 104 L.Ed.2d 404 (1989).

Turning first to plaintiff's prospects for success on the merits, a Section 1983 claimant must show that he has been denied, or is about to be denied, a right protected by the Constitution. See Parratt v. Taylor, 451 U.S. 527, 532, 101 S.Ct. 1908, 1911, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-32, 106 S.Ct. 662, 664-66, 88 L.Ed.2d 662 (1986). One such right is afforded by Article I, Section 10, which provides that "[n]o State shall enter into any ... ex post facto law." A similar constraint is placed on the federal government. Article I, Section 9. The Ex Post Facto Clause protects against the retroactive application of a law that "inflicts greater punishment, than the law annexed to the crime, when committed." Calder v. Bull, 3 U.S. 386 (3 Dall. 386), 390, 1 L.Ed. 648 (1798).

It is undisputed that the plaintiff's crimes, of which he was convicted in 1985, predated Washington's enactment of the relevant statute in 1990. The key issue is whether the statute's public notification provisions are punitive or merely regulatory; if punitive, they cannot be enforced against the plaintiff.

The statute, known as the Community Protection Act of 1990 ("1990 Act"), was adopted in response to an atrocity committed by a released sex offender. See Michelle Jerusalem, Note, A Framework for Post-Sentence Sex Offender Legislation, 48 Vand. L.Rev. 219, 228-29 (1995). It provides for enhanced criminal penalties for sex offenders (RCW 9.94A.310-.320), involuntary post-sentence commitment of those found likely to reoffend due to a mental abnormality or personality disorder (RCW 71.09.010-.020),² registration of released offenders (RCW 9A.44.130), and public notification as deemed necessary by local law enforcement agencies (RCW 4.24.550).

Under the 1990 Act, any person residing in Washington who has been convicted of a sex offense, as defined by RCW 9.94A.030, must register with the sheriff for the county of the person's residence. RCW 9A.44.130(1). A sex offender must provide his name, address, date and place of birth, place of employment, crime of conviction, date and place of conviction, aliases used, and social security number. RCW 9A.44.130(2). The sheriff must obtain a photograph and a copy of the offender's fingerprints. RCW 9A.44.130(5). The information is forwarded to the Washington State Patrol for inclusion in a central registry. RCW 43.43.540. If an offender intends to move from a registered address, he must send written notice of the change to the county sheriff at least fourteen days in advance. RCW 9A.44.130(4)(a). If the new residence is in a different county, the offender must also register with the sheriff of the new county within twenty-four hours of moving. RCW 9A.44.130(4)(a). A knowing failure to register, or to give timely notice of a change of address, is a felony or gross misdemeanor, depending on the severity of the original conviction. RCW 9A.44.130(7).

The 1990 Act authorizes agencies to "release relevant and necessary information regarding sex offenders to the public when the release of the information is necessary for public protection." RCW 4.24.550(1). Whether public notification should be made, who among the public should be notified, and what information is deemed "necessary," are left to the discretion of local law enforcement agencies. On the face of the statute, all information provided by the registrant (including his address and place of employment) could be publicized. No notice or hearing is required, and no guidelines are provided to the local agencies.

In this case the Seattle Police Department ("SPD") is the local law enforcement agency having the discretion. The record shows that the SPD's Sex Offender Oversight Committee classifies each released offender at one of three levels, depending on the assumed likelihood of recidivism. A Level 1 offender is required only to register; no public notification is made. At Level 2 or Level 3 (the latter being the likeliest to reoffend), the SPD delivers "Sex Offender Information Bulletin, Notification of Release" forms to block watch captains in the federal census tract in which the offender resides and in the immediately abutting tracts, the State Department of Corrections, the King County Police, the Seattle Housing Authority, the University of Washington Police, the Office of the Mayor, the City Council, the Seattle Center, schools within the federal census tract where the offender resides, the Seattle School District, the Seattle Parks Department, and the Seattle Public Library. At Level 3, notification forms are also provided to local news media. The notification forms supply the offender's photograph, name, age, date of birth, and the vicinity of his current residence, together with a summary of his past crimes and a statement that he is likely to reoffend. The SPD exercises its discretion by withholding the offender's vehicle description, exact address, and place of employment.

The plaintiff here was released from state custody about four weeks ago. The Department of Corrections ("DOC") bulletin to law enforcement agencies, notifying them of his release, described in detail plaintiff's 1985 conviction of violent rape of an adult female plus two counts of robbery. It also gave graphic details of other crimes in which plaintiff was an uncharged suspect. The bulletin described plaintiff as "an untreated, brutal sex offender, who may have committed more sex offenses than his conviction record reflects; he may have committed a homicide." It added that he "is alleged to have been extremely cruel and violent to his ... former spouse," and provided details. It cited a February 1997 psychological evaluation noting that plaintiff "has a high likelihood to again commit predatory violent offenses against adult women." While concluding that plaintiff "may be a high risk for reoffense," the bulletin expressed doubt as to whether the risk lay with sex crimes or elsewhere: "[B]ased on the information available to the evaluator, it was determined that there were insufficient facts to predict that [plaintiff's] predatory and violent offense behavior will more likely than...