In re Meyer

• Decision Date: 04 January 2001
• Docket Number: No. 68271-2; 68482-1; 68810-9.
• Citation: 16 P.3d 563,142 Wash.2d 608
• Court: Washington Supreme Court
• Parties: In re the Personal Restraint Petition of Douglas Earl MEYER, Petitioner. In re the Personal Restraint Petition of Eric L. Erickson, Petitioner. In re the Personal Restraint Petition of Bradley T. Sundstrom, Petitioner.

16 P.3d 563

142 Wash.2d 608

In re the Personal Restraint Petition of Douglas Earl MEYER, Petitioner.

In re the Personal Restraint Petition of Eric L. Erickson, Petitioner.

In re the Personal Restraint Petition of Bradley T. Sundstrom, Petitioner.

Nos. 68271-2; 68482-1; 68810-9.

Supreme Court of Washington, En Banc.

Argued June 22, 2000.

Decided January 4, 2001.

Reconsideration Denied March 26, 2001.

Patricia Arthur, Seattle, Pattie Mhoon, Tacoma, David Fathi, Washington, DC, for Petitioners.

Eric Erickson, Everett, pro se.

Douglas E. Meyer, Jerome, ID, pro se.

Christine Gregoire, Atty. Gen., John Samson, John S. Blonien, Assistant Attorneys General, Olympia, for Respondent.

TALMADGE, J.

We are asked in these three consolidated cases to decide if the risk classification of certain sex offenders by the Department of Corrections (Department) and local law enforcement authorities pursuant to RCW 4.24.550 and RCW 72.09.345,¹ violates the due process rights of those sex offenders when the consequences of such risk classification provide for the release of information about those offenders to the public. We hold no liberty interest arises from the United States or Washington State Constitutions. Nor does a liberty issue arise from compliance with the risk level classification of RCW 4.24.550 and RCW 72.09.345 insofar as the statute is essentially procedural and does not implicate the offenders' protected privacy rights. We affirm the Court of Appeals' decisions in each of these three cases.

ISSUES

1. Do the risk classification and community notification procedures of the 1990 community protection act relating to sex offenders violate petitioners' rights to due process of law?

2. What process is due these sex offenders?

3. Should the Court stay the enforcement of any community notification regarding these sex offenders?

FACTS

Petitioners Meyer, Erickson, and Sundstrom are convicted sex offenders still in the Department's custody. On November 24, 1992, Douglas Meyer was convicted of second-degree rape in the Grant County Superior Court pursuant to RCW 9A.44.050(1)(a); the trial court subsequently sentenced him to 72 months' imprisonment. In anticipation of his release, the Department's End of Sentence Review Committee (ESRC) classified Meyer as a Level I sex offender. On June 8, 1999, Meyer filed a personal restraint petition (PRP) in the Court of Appeals, Division Three, challenging this classification. He claimed the sex offender registration and community notification procedures of the 1990 act violated his right to procedural due process in several respects. He also asserted entitlement to an immediate hearing in which the State would bear the burden of proving by clear and convincing evidence he was likely to reoffend or posed a threat to the community. Unconvinced, the Court of Appeals dismissed Meyer's petition as time barred and meritless. In re PRP of Meyer, No. 184960-III (Wash.Ct.App. Jun. 11, 1999).

On June 18, 1993, Eric Erickson pleaded guilty to two counts of first-degree child molestation in the Snohomish County Superior Court pursuant to RCW 9A.44.083; the trial court subsequently sentenced him to 89 months' imprisonment. In anticipation of his release, the ESRC classified Erickson as a Level III sex offender. On January 21, 1999, Erickson filed a PRP in the Court of Appeals, Division One. Erickson argued the State had deprived him of a liberty interest without due process of law in violation of both the United States and Washington Constitutions. The Court of Appeals dismissed Erickson's petition, reasoning registration and community notification do not create an affirmative restraint. In re PRP of Erickson, No. 44100-1-I (Wash.Ct.App. Aug. 16, 1999).

On September 4, 1997, Bradley Sundstrom pleaded guilty to second-degree child molestation pursuant to RCW 9A.44.086; the trial court sentenced him to 41 months' imprisonment. In anticipation of Sundstrom's release, the ESRC classified him as a Level III sex offender. On July 9, 1999, Sundstrom filed a PRP with us, which we subsequently transferred to the Court of Appeals, Division Two, pursuant to RAP 16.3(c) and 16.5(b). Sundstrom, like the other petitioners, claimed the registration and community notification procedures violated his right to procedural due process. The Court of Appeals dismissed Sundstrom's PRP, finding "Sundstrom is not challenging a `restraint,' as is required for relief to be available via personal restraint petition." In re PRP of Sundstrom, No. 25267-8-II, slip op. at 2 (Wash. Ct.App. Nov. 17, 1999).

All three petitioners sought discretionary review, which we granted. We consolidated the petitions for the purpose of this proceeding.

ANALYSIS

To understand the issues in this case, it is first necessary to understand generally how the registration and community notification procedures of the 1990 community protection act function. The registration provision, RCW 4.24.550, requires any person who has been found guilty of, pleaded guilty to, or found not guilty by reason of insanity of any sex offense, as defined by RCW 9.94A.030(37), to provide his name, address, date and place of birth, place of employment, crime for which convicted, date and place of conviction, aliases used, and Social Security number to the sheriff in the county where the person resides or plans to reside. RCW 9A.44.130. The sheriff must also obtain a photograph of the individual and a copy of the individual's fingerprints. RCW 9A.44.130(8).

The community notification provision, RCW 4.24.550(1), permits local law enforcement agencies to disclose some or all of the above-discussed registration information "when the agency determines that disclosure of the information is relevant and necessary to protect the public and counteract the danger created by the particular offender." Id. The Department's ESRC initially assesses the danger posed to the community by the particular offender before release from confinement or the beginning of community custody or community placement. RCW 72.09.345(4). The ESRC classifies offenders as Level I for low risk of reoffense; Level II for moderate risk; and Level III for high risk. To support this classification, the ESRC has "access to all relevant records and information in the possession of public agencies relating to the offenders under review." RCW 72.09.345(3). Then, the ESRC notifies the sheriff or other local law enforcement agency in the offender's community of the recommended classification.

Local law enforcement agencies make the final determination of the risk level classification, after reviewing the ESRC's recommendation. RCW 4.24.550(4)(b). The risk the offender poses determines the extent of community notification. Local law enforcement agencies can release information only to the extent such information is rationally related to the offender's location, the "level of risk posed by the offender to the community," and "the needs of the affected community members for information." RCW 4.24.550(2). For persons classified at Level I, local law enforcement agencies may, upon request, disclose relevant, accurate, and necessary information to any victim or witness, or any individual community member who lives near where the offender resides, will reside, or is regularly found. RCW 4.24.550(3)(a). For Level II offenders, law enforcement agencies may also disclose such information to schools, child care centers, day care providers, and neighbors and community groups near where the offender resides, expects to reside, or is regularly found. RCW 4.24.550(3)(b). And for Level III offenders, the information may be disclosed to the public at large. RCW 4.24.550(3)(c).

The statute makes no provisions for notice to the offender or a hearing before the ESRC or local law enforcement agency before the community is notified.²

We rejected various constitutional challenges to the 1990 act's registration and notification statutes in State v. Ward, 123 Wash.2d 488, 869 P.2d 1062 (1994). With respect to the notification, we held the limited disclosure of registration information to the public does not amount to a "badge of infamy" and is not additional punishment for the offense. Id. at 500-02, 869 P.2d 1062. We did not address the due process issue petitioners now raise. The petitioners here essentially contend the risk classification of RCW 4.24.550 and RCW 72.09.345 infringes on a liberty interest they enjoy and that they have been deprived of that interest without due process of law under both the state and federal constitutions.

I. Procedural Issues

As a threshold matter, the State contends the one-year statute of limitations found in RCW 10.73.090 bars all three petitions. Moreover, the State asserts the petitions do not qualify under the provisions of RAP 16.4(b) because the offenders are not under a "restraint." The State has telling arguments on these points. We note all of the petitions were filed more than a year after the entry of the judgment and sentence. Thus, none of the exceptions enumerated in RCW 10.73.100 applies.

Moreover, our decision in Ward implies no restraint is created by these statutes. Ward, 123 Wash.2d at 500-02, 869 P.2d 1062. Additionally, the Court of Appeals for the Ninth Circuit has held a sex offender who has completed his sentence and is subject to Washington's registration requirement is not "in custody" for purposes of the federal habeas corpus statute. Williamson v. Gregoire, 151 F.3d 1180 (9th Cir.1998). State law does not require the petitioner to be "in custody." However, the petitioner must show he is under an unlawful "restraint," which includes any "disability resulting from a judgment or sentence in a criminal case." RAP 16.4(b).

But despite these procedural arguments, in the interests of clarifying the law in this important area, we nevertheless choose to address and resolve the constitutional issues posed by the petitioners in light of the substantial public...