Femedeer v. Haun
| Citation | 227 F.3d 1244 |
| Decision Date | 28 August 2000 |
| Docket Number | 99-4093,Nos. 99-4082,s. 99-4082 |
| Parties | (10th Cir. 2000) JON FEMEDEER, a pseudonym, Plaintiff-Appellee/Cross-Appellant, v. H.L. "PETE" HAUN, Executive Director, Utah Department of Corrections, Defendant-Appellant/Cross-Appellee |
| Court | U.S. Court of Appeals — Tenth Circuit |
Appeal from the United States District Court for the District of Utah (D.C. No. 98-CV-572-K) James H. Beadles, Assistant Attorney General (Jan Graham, Utah Attorney General with him on the briefs), Salt Lake City, Utah, for Defendant-Appellant-Cross-Appellee.
Brian M. Barnard (James L. Harris, Jr., with him on the briefs), Utah Legal Clinic, Salt Lake City, Utah and Stephen C. Clark, American Civil Liberties Union of Utah, Salt Lake City, Utah, with him on the briefs, for Plaintiff-Appellee-Cross-Appellant.
Before BALDOCK,EBEL and MURPHY, Circuit Judges.
This case primarily concerns whether Utah's sex offender notification scheme, which includes posting information about convicted sex offenders on the Internet, violates the Double Jeopardy and Ex Post Facto Clauses of the U.S. Constitution when applied to offenders who committed their crimes prior to the effective date of the enabling legislation. Granting in part Plaintiff's motion for summary judgment, the district court ruled that the scheme violated those constitutional provisions with respect to offenders who had completed their sentences and probation as of the effective date, but the court rejected Plaintiff's other asserted grounds for relief. See Femedeer v. Haun, 35 F. Supp.2d 852, 861 (D. Utah 1999). Defendant appealed the summary judgment order, and Plaintiff cross-appealed on the scope of relief, the dismissal of his remaining claims, and the district court's award of attorney's fees. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and we AFFIRM in part, REVERSE in part, and REMAND this case for further proceedings.
Appellee filed this action in the United States District Court for the District of Utah under the pseudonym of Jon Femedeer, apparently wishing to prevent widespread disclosure of his status as a sex offender.
Proceeding under a pseudonym in federal court is, by all accounts, "an unusual procedure." MM. v. Zavaras, 139 F.3d 798, 800 (10th Cir. 1998) (quotation omitted). Moreover, there does not appear to be any specific statute or rule supporting the practice. See id. To the contrary, the Federal Rules of Civil Procedure mandate that all pleadings contain the name of the parties, see Fed. R. Civ. P. 10(a), and Rule 17(a) specifically states that "[e]very action shall be prosecuted in the name of the real party in interest." Fed. R. Civ. P. 17(a).
Nevertheless, we have recognized that there may be exceptional circumstances warranting some form of anonymity in judicial proceedings. As the Eleventh Circuit has explained:
Lawsuits are public events. A plaintiff should be permitted to proceed anonymously only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity. The risk that a plaintiff may suffer some embarrassment is not enough.
Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992). We have held that it is proper to weigh the public interest in determining whether some form of anonymity is warranted. See Zavaras, 139 F.3d at 802-03.
Here, the public has an important interest in access to legal proceedings, particularly those attacking the constitutionality of popularly enacted legislation. And, without Appellee's identity in the public record, it is difficult to apply legal principles of res judicata and collateral estoppel. While we appreciate Appellee's interest in attempting to prevent disclosure of his status as a sex offender, such disclosure has presumably already occurred in the underlying conviction. Further, Appellee has not established real, imminent personal danger, and the disclosure of Appellee's identity in the caption of this lawsuit is not coterminous to the harm he is seeking to avoid by filing this claim. The posting of his identity and other personal information on the Internet is likely to be more extensive than is the exposure resulting from his name on the caption of this lawsuit. Ordinarily, those using the courts must be prepared to accept the public scrutiny that is an inherent part of public trials.
Within twenty days, Appellee is ordered to file a sworn affidavit in this court under seal revealing his true identity. If he takes any further action in this litigation, the caption shall bear his correct name unless this court has first granted either a motion to seal the caption or to authorize the matter to proceed by way of a pseudonym.
Plaintiff-Appellee-Cross-Appellant Jon Femedeer brought the present action under 42 U.S.C. § 1983, alleging that Utah's recently amended sex offender registration and notification system violates various federal constitutional guarantees. Femedeer also included analogous Utah state constitutional claims in his complaint. The suit was brought against Defendants-Appellants-Cross-Appellees N.D. "Pete" Haun, as Executive Director of Utah's Department of Corrections, and John and Jane Does representing various unknown Department of Corrections employees, officers, and agents (collectively, "Appellants" or "Utah").
The facts in this case are undisputed. Since 1987, Utah has required convicted sex offenders1 to comply with a registration and notification system upon their release from confinement. Sex offenders have been required to provide the following information to the Department of Corrections: (1) their name, including all aliases by which the offender is known; (2) their current address; (3) a physical description; (4) the type of vehicle driven by the offender; and (5) a current photograph of the offender. See Utah Code Ann. § 77-27-21.5(10).
Initially, sex offender registry information was disclosed only to law enforcement agencies, education licensing authorities, and the Department of Corrections. In 1996, however, Utah amended the law to allow disclosure of the information to members of the public who submitted written requests to the Department of Corrections (the "Department"). The request was required to indicate that the individual seeking the information was either a victim of a sex offense or resided in an area where one suspected a sex offender resided. The Department would only grant the requests of persons living within the offender's zip code or an adjoining one. The 1996 amendments specifically stated that they were not to apply retroactively.
In 1998, Utah's state legislature again amended the registration and notification statute. It is these most recent amendments that are the subject of the current controversy. The first significant change to the law was the elimination of the requirement that it not be applied retroactively. Thus, on its face, the law now applies to any sex offender, regardless of when he or she committed the crime. The second change was the elimination of the geographical restriction on dissemination of the information, and the addition of the statement that all information in the registry was now "public." Utah Code Ann. § 77-27-21.5(13).
Apparently, the impetus for these changes was a significant backlog of information requests, specifically those of the Boy Scouts of America, which wanted to review information on its 100,000 volunteers. Unrestricted by the new statute, and hoping to alleviate the request backlog, the Department posted the sex offender registry information on its web site. Access to the information is not controlled in any way; anyone with access to the Internet can access all of the registry information, regardless of their place of residence or any other specific need.
Femedeer moved the district court for summary judgment on several grounds. His motion was granted in part in an order dated January 22, 1999. (See Femedeer, 35 F. Supp.2d at 852.) The district court agreed with Femedeer that the new system constituted "punishment" and therefore violated the Double Jeopardy and Ex Post Facto clauses with respect to offenders who had completed their sentences and probation as of July 1, 1998, the effective date of the amendments. Femedeer, 35 F. Supp.2d at 859. The court explicitly rejected Femedeer's Equal Protection and Due Process Clause claims, and dismissed the remaining claims with prejudice. Id. at 860-61. Femedeer then filed motions for a new trial and for attorney's fees. The court denied the former and granted the latter. Finding that Femedeer was not entirely successful in his suit, the court reduced the total fee award by sixty percent. Femedeer filed a motion to collect additional fees for pursuing the initial fees motion, but the court declared that it had taken these additional fees into consideration in setting the first percentage amount. This appeal and cross appeal followed.
Utah has appealed the district court's conclusion that the state's notification scheme by posting information on the Internet violates the Ex Post Facto and Double Jeopardy Clauses as applied to those sex offenders whose sentences and probation had been completed by the statute's effective date. Femedeer has filed a cross-appeal, claiming that the district court erred by dismissing his remaining claims sua sponte, that the district court incorrectly determined the applicable time frame regarding the ex post facto violations, and that the district court erred in calculating its award of attorney's fees. We shall first address Utah's claims on appeal, and then turn to Femedeer's cross-appeal.
We review a challenge to a statute under the Ex Post Facto Clause de novo. See Lustgarden v. Gunter, 966 F.2d 552, 553 (10th Cir. 1992).
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