Femedeer v. Haun, 2:98 CV 572 K.

• Decision Date: 22 January 1999
• Docket Number: No. 2:98 CV 572 K.,2:98 CV 572 K.
• Citation: 35 F.Supp.2d 852
• Court: U.S. District Court — District of Utah
• Parties: Jon FEMEDEER, a pseudonym, Plaintiff, v. N.D. "Pete" HAUN, Executive Director, Utah Department of Corrections, John Does 1-X and Jane Does 1-X, Utah Department of Corrections employees, officers, and agents, Defendants.

35 F.Supp.2d 852

Jon FEMEDEER, a pseudonym, Plaintiff, v. N.D. "Pete" HAUN, Executive Director, Utah Department of Corrections, John Does 1-X and Jane Does 1-X, Utah Department of Corrections employees, officers, and agents, Defendants.

No. 2:98 CV 572 K.

United States District Court, D. Utah, Central Division.

January 22, 1999.

COPYRIGHT MATERIAL OMITTED

Brian M. Barnard, James L. Harris, Jr., Utah Legal Clinic, Salt Lake City, UT, for Jon Femedeer, plaintiff.

John P. Soltis, Mr., Utah Attorney General's Office, James H. Beadles, Mr., Utah Attorney General's Office, Salt Lake City, UT, for N.D. Pete Haun, defendants.

ORDER

KIMBALL, District Judge.

Before the Court is Plaintiff's Motion for Summary Judgment and Permanent Injunction.

BACKGROUND

Plaintiff Jon Femedeer challenges the constitutionality of recent amendments made to Utah's sex offender registration and notification statute, Utah Code Ann. § 77-27-21.5 (Supp.1998). Since 1987, Utah has maintained a registry of persons convicted of, or entering a plea in abeyance for, violating certain sex-related provisions of Utah's criminal code. See § 77-27-21.5(1)(d) (Supp. 1998).

Pursuant to amendments to the statute effective April 29, 1996, information maintained on the registry, including an offender's place of habitation, physical description, and method of offense, were made available to the public on a limited basis. In addition to law enforcement agencies and Utah's Office of Education, the victims of sexual offenses and residents in a location where a sex offender was suspected to reside were entitled to receive information upon the submission of a written request. § 77-27-21.5(2)(b) (Supp.1996). The public disclosure provisions of the statute did not apply retroactively to offenders who had completed their sentences and any requirements of probation prior to April 29, 1996. § 77-27-21.5(19) (Supp.1996).

During the 1998 legislative session, the statute was amended, effective July 1, 1998, in two significant respects. First, the statute was amended to make registry information available to the public without restriction. See § 77-27-21.5(2)(b) (Supp.1998). Second, the restriction against retroactive application was removed.

Defendant Utah Department of Corrections (the "Department") is the state agency charged with the collection and dissemination of registry information. See § 77-27-21.5(2) (Supp.1998). The Department is authorized, but not required, to make rules necessary to implement the statute. See § 77-27-21.5(17) (Supp.1998). Without promulgating rules the Department intends to make registry information available to the public without restriction via its Internet website (www.cr.ex.state.ut.us/soreg/info). Moreover, the Department intends to include offenders who were convicted and completed the terms of their sentences prior to April 29, 1996.

Plaintiff is such an offender. He alleges that he committed a listed crime, was sentenced, and completed all the terms and conditions of his sentence both prior to July 1, 1998, and prior to April 29, 1996. Plaintiff brings suit pursuant to 42 U.S.C. § 1983, alleging that enforcement of the statute's public disclosure provisions violates the United States Constitution in three respects. First, Plaintiff alleges that application of the public disclosure provisions to offenders who completed the terms of their sentences and probation prior to July 1, 1998, violates the Ex Post Facto, Double Jeopardy, and Bill of Attainder Clauses. Second, Plaintiff alleges that the public disclosure provisions violate the Equal Protection Clause of the Fourteenth Amendment by classifying all sex offenders together without regard to the threat an individual offender poses to public safety. Third, Plaintiff alleges that the public disclosure provisions violate the Due Process Clause of the Fourteenth Amendment by depriving offenders of their interests in privacy and reputation without procedural due process. Plaintiff does not challenge the constitutionality of the statute's registration provisions.

DISCUSSION

I. Constitutionality Under the Ex Post Facto and Double Jeopardy Clauses.

A. Legal Standard.

For a statute to violate either the Ex Post Facto Clause or the Double Jeopardy Clause,¹ that statute must be deemed "punishment." See Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 2085-86, 138 L.Ed.2d 501 (1997). A two-part inquiry determines whether a particular civil statute constitutes punishment under these clauses. In the first stage of the inquiry, a reviewing court must ascertain whether the legislature intended the statute to serve remedial, non-punitive aims. Such intention is to be determined, in the first instance, from a review of the statute itself. Id. at 2081-82.

In the second stage of the inquiry, the effects of the statute in operation are examined. At this stage, the party challenging the statute bears a "heavy burden" to provide "the clearest proof" that the statutory scheme is so punitive either in purpose or effect as to negate the legislature's intention to deem it civil. Id. at 2082 (internal quotation marks and citation omitted). In the absence of such proof, the legislature's stated intent is dispositive. Id.

Whether the adverse affects of a particular statute constitute punishment in violation of either the Double Jeopardy or the Ex Post Facto Clause is "a highly context specific matter." Doe v. Pataki, 120 F.3d 1263, 1275 (2d Cir.1997), cert. denied ___ U.S. ___, 118 S.Ct. 1066, 140 L.Ed.2d 126 (1998). A universally-applicable legal standard or test has not been devised, and neither the Supreme Court nor the Court of Appeals for the Tenth Circuit has addressed the constitutionality of a sex offender registration and notification act under these, or any other, constitutional provisions. However, such acts have been subjected to analysis in several federal circuit and district courts, and a set of factors relevant in this context has emerged. See Id. (analyzing New York's Sex Offender Registration Act); E.B. v. Verniero, 119 F.3d 1077 (3d Cir.1997) (analyzing New Jersey's Sex Offender Registration and Community Notification Acts), cert. denied ___ U.S. ___, 118 S.Ct. 1039, 140 L.Ed.2d 2105 (1998); Russell v. Gregoire, 124 F.3d 1079 (9th Cir.1997) (analyzing Washington's Community Protection Act), cert. denied ___ U.S. ___, 118 S.Ct. 1191, 140 L.Ed.2d 321 (1998); Roe v. Farwell, 999 F.Supp. 174 (D.Mass.1998) (analyzing Massachusetts' Megan's Law).

These factors include whether a statute's notification provisions: 1) impose an affirmative disability or restraint; 2) impose a burden that has historically been regarded as punishment; 3) promote retribution and deterrence; 4) further a legitimate, nonpunitive purpose; and 5) are excessive beyond their legitimate purpose.² No single factor has been considered dispositive.

B. Legislative Intent.

Plaintiff argues that the Utah legislature has not made its intent clear on the face of the statute, apparently, and erroneously, believing that the text of the statute must contain an explicit statement of the legislature's intention. Such explicitness is not required. Legislative intent to enact a nonpunitive measure is ascertainable from the simple fact that the legislature placed the statute in the civil code as opposed to the criminal code. See Hendricks, 117 S.Ct. at 2082. Moreover, the statute contains an unambiguous statement of its purpose in § 77-27-21.5(2), which directs the Department to collect registry information and make it available to the public "to assist in investigating sex-related crimes and in apprehending offenders." This intent is clearly remedial.

Remedial intent is also evident from the statement the statute's sponsor gave in setting the measure before the House of Representatives.³ Representative Brian Allen explained that the measure was motivated primarily by concerns of administrative convenience arising from the Department's inability to process and respond to the numerous legitimate requests for registry information that it had received, including a request to check approximately 100,000 volunteers submitted by the Boy Scouts. The 1998 amendments were simply intended to give the Department flexibility to adopt an administratively convenient disclosure method. Audio tape of Floor Proceedings Before the Utah House of Representatives, Feb. 28, 1998.

Plaintiff has failed to direct the Court to contrary legislative history. Therefore, the burden shifts to Plaintiff to provide "the clearest proof" that the statute is so punitive either in purpose or effect as to negate the legislature's intention.

C. Purpose and Effects.

1. Whether the public disclosure provisions impose an affirmative disability or restraint.

Plaintiff argues that public disclosure imposes an affirmative disability and restraint on offenders in the sense that disclosure will cause them to be ostracized by the community — resulting in the loss of employment, housing, and opportunities for "free association" and "participation" in society. At the outset, it must be noted that the record is devoid of any evidence that such ostracism will occur. Plaintiff's concerns are merely speculative.

However, even if this Court were to assume that offenders subject to the operation of the statute's public disclosure provisions will be less free to "participate" in society, such consequences would not transform the statute into a punitive one. Not every detrimental consequence of a statute is to be attributed to it for purposes of this analysis. Only the direct effects of a statute are to be assessed. Indirect effects, like public stigma, loss of employment, and even private acts of violence,⁴ that are not required or condoned under the statute, are not to be considered. Farwell, 999 F.Supp. at 191 ("Circuit courts that have addressed this issue have not been persuaded by arguments concerning the risk of physical violence, stigma, or impairment of...