Russell v. Gregoire

Citation124 F.3d 1079,1997 WL 539074
Decision Date04 September 1997
Docket NumberNo. 96-35398,96-35398
Parties97 Cal. Daily Op. Serv. 7137, 97 Daily Journal D.A.R. 11,517 Willie RUSSELL, Johnny Stearns, Plaintiffs-Appellants, v. Christine GREGOIRE, James Blodgett, Chase Riveland, Norman Stamper, Norm Maleng, Annette Sandburg, James Montgomery, Lyle Quasim, Everett Police Dept., James Scharf, Sheriff, Janet Barbour, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Todd Maybrown, Allen, Hansen & Maybrown, P.S., Seattle, WA, for plaintiffs-appellants.

John J. Samson, Assistant Attorney General, Olympia, WA, Sandra L. Cohen, Assistant City Attorney, City of Seattle, Thomas W. Kuffel, Deputy Prosecuting Attorney, King County Prosecuting Attorney's Office, Seattle, WA, Jill Vanneman, Assistant City Attorney, Everett City Attorney's Office, Everett, WA, for defendants-appellees.

Leonard Schaitman and Wendy M. Keats, United States Department of Justice, Washington, DC, for amicus curiae.

Appeal from the United States District Court for the Western District of Washington; Carolyn Dimmick, District Judge, Presiding. D.C. No. CV-95-01486-CRD.

Before: WRIGHT, BRUNETTI, and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether a Washington statute of the kind popularly referred to as "Megan's law" violates the Constitution.


Willie Russell and Johnny Stearns are both convicted sex offenders who have been released from confinement and are now residing in Washington State. Russell was convicted in Washington in 1989 of second degree rape and attempted second degree rape; Stearns was convicted in Washington in 1989 of first degree robbery and attempted second degree rape. Both were imprisoned. In 1990, the Washington legislature passed the Community Protection Act, 1990 Wash. Laws, ch. 3 ("the Act") which included provisions requiring sex offenders to register with local law enforcement authorities and subjecting some offenders to community notification of conviction information including the offender's photograph and approximate residential location. 1

After their releases, both Russell and Stearns registered as required. Each learned that he would be subject to community notification under the Act. In early 1996, each filed civil rights actions under 42 U.S.C. § 1983 against various state officials, including Washington Attorney General Christine Gregoire, claiming that the registration and notification provisions of the Act would deprive him of his constitutional rights, and requesting declaratory and injunctive relief. Specifically, each claimed that the Act violated the Ex Post Facto Clause, and abridged his rights to privacy and due process.


The Act requires both registration and notification. The registration element provides that any person convicted of a sex offense (or found not guilty by reason of insanity of a sex offense) register with the sheriff for the county of the person's residence. Wash. Rev.Code § 9A.44.130(1). The offender must provide his or her name, address, date and place of birth, place of employment, crime for which he or she was convicted, date and place of conviction, aliases used, and social security number. Id. at § 9A.44.130(2). The sheriff must obtain a photograph and a copy of the offender's fingerprints. Id. at § 9A.44.130(5). The information is forwarded to the Washington State Patrol for inclusion in a central registry. Id. at § 43.43.540.

A sex offender released from custody must register within 24 hours of his or her release; sex offenders who change addresses must register within 10 days of the change. Id. at § 9A.44.130(3)(a). The Act also requires a sex offender convicted in another jurisdiction to register within 30 days of moving into Washington. Id. If a sex offender changes residences, he or she must notify the sheriff 14 days before moving, or, if not within 14 days, as soon as the new address is known. Id. at § 9A.44.130(4). Failure to register within the time required is punishable as a Class C felony or gross misdemeanor depending on the degree of the offender's underlying sex offense. Id. at § 9A.44.130(7).


The notification element authorizes public agencies to release "relevant and necessary information" regarding a sex offender 2 to the public when "necessary for public protection." Id. at § 4.24.550. The Washington Supreme Court 3 has held that "a public agency must have some evidence of an offender's future dangerousness, likelihood of reoffense, or threat to the community, to justify disclosure to the public in a given case." State v. Ward, 123 Wash.2d 488, 869 P.2d 1062, 1070 (1994). "An agency must disclose only that information relevant to and necessary for counteracting the offender's dangerousness." Id. Any notice given to the public must contain a warning against violence towards the offender. Id. Further, information may only be disseminated within a narrow geographic area. Id. 869 P.2d at 1070-71.

Prior to an offender's release, Washington's Sex Offender Oversight Committee reviews information provided by the Department of Corrections to assess the seriousness level of the offender. If an offender is classified as Level One, no public notification occurs. If an offender is classified as Level Two, standard notification forms are provided to government and law enforcement agencies, to schools within the federal census tract where the offender is living, and to Block Watch Captains in that census tract and the adjoining census tracts. If an offender is classified as Level Three, notification forms are distributed in the same way, but are also provided to local news media. Russell and Stearns were each classified as Level Three offenders.

The notification form provides the offender's picture, name, age, date of birth, and other identifying information. It also contains a summary of the offender's crime and the general vicinity of the offender's residence. It does not contain the offender's exact address, nor does it contain any information about the offender's employment. Finally, the form has a long "caveat" regarding the information contained in the notice, including a warning that threats, intimidation, or harassment of the offender "will not be tolerated."


The district court granted and renewed Temporary Restraining Orders in favor of Russell and Stearns, preventing law enforcement agencies from making the statutory notification to the community until hearing argument on their motions for preliminary injunction. After a hearing, the district court denied their motions for preliminary injunction, thus permitting notification. Russell and Stearns filed this timely joint appeal from the order denying a preliminary injunction.


A preliminary injunction may issue "if the movant has shown either a likelihood of success on the merits and the possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in the movant's favor." Coalition for Economic Equity v. Wilson, 110 F.3d 1431, 1438 (9th Cir.1997) (quotation marks and citation omitted).

We review the district court's order denying a preliminary injunction for an abuse of discretion, which occurs if the district court bases its decision on an erroneous legal standard or on clearly erroneous findings of fact. Does 1-5 v. Chandler, 83 F.3d 1150, 1152, (9th Cir.1996). We review de novo the legal issues underlying the decision to deny an injunction, as well as the conclusion that plaintiffs are likely to fail on the merits of those issues. International Molders' and Allied Workers' Local Union No. 164 v. Nelson, 799 F.2d 547, 551 (9th Cir.1986). 4


Article I, § 10 of the Constitution provides: "No State shall ... pass any ... ex post facto Law...." It prohibits the states from enacting any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L.Ed. 356 (1866)). "[T]he focus of the ex post facto inquiry is not on whether a legislative change produces some sort of 'disadvantage,' ... but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable." California Dep't of Corrections v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 1602 n. 3, 131 L.Ed.2d 588 (1995); see Collins v. Youngblood, 497 U.S. 37, 50-52, 110 S.Ct. 2715, 2723-24, 111 L.Ed.2d 30 (1990). Since Russell and Stearns argue that the Act is an ex post facto law, the principal question presented in this case is whether the registration and notification provisions impose "punishment."


Our court has not previously established a clear test to determine what constitutes punishment under the Ex Post Facto Clause. Likewise, the Supreme Court has not articulated a "formula" for identifying the legislative changes that fall within the constitutional prohibition. Morales, 514 U.S. at 508-10, 115 S.Ct. at 1603.

In Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), a case dealing with the procedural safeguards of the Fifth and Sixth Amendments, the Court enumerated factors to be considered:

Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment-retribution and deterrence, whether the behavior to which it applies is already a crime, whether alternative purposes to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions.

Id. at 168-69, 83 S.Ct. at 567-68. As ...

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