Schepers v. Comm'r, Ind. Dep't of Corr.

• Decision Date: 28 August 2012
• Docket Number: No. 11–3834.,11–3834.
• Citation: 691 F.3d 909
• Parties: David SCHEPERS, et al., Plaintiffs–Appellants, v. COMMISSIONER, INDIANA DEPARTMENT OF CORRECTION, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

691 F.3d 909

David SCHEPERS, et al., Plaintiffs–Appellants,

v.COMMISSIONER, INDIANA DEPARTMENT OF CORRECTION, Defendant–Appellee.

No. 11–3834.

United States Court of Appeals,Seventh Circuit.

Argued May 25, 2012.

Decided Aug. 28, 2012.

Kenneth J. Falk (argued), Attorney, Indiana Civil Liberties Union, Indianapolis, IN, for Plaintiffs–Appellants.

Frances Barrow (argued), Attorney, Office of the Attorney General, Indianapolis, IN, for Defendant–Appellee.

Before POSNER, FLAUM, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Indiana, like many states, maintains a public database of persons convicted of sex offenses. Its database is called the “Sex and Violent Offender Registry” and is accessible via the Internet. See Indiana Sex and Violent Offender Registry, http:// www. icrimewatch. net/ indiana. php (last visited August 23, 2012). People visiting the registry's website find, on each registrant's page, a recent photograph, home address, information about the registrant's height, weight, age, race, and sex, and information about the particular offenses that required placement on the registry. Some registrants' pages may additionally carry the label of “sexually violent predator,” if they have committed certain serious offenses or have had multiple previous convictions for specified sex and violent offenses. See Ind.Code § 35–38–1–7.5 (defining “sexually violent predator”). The public can search the database by a variety of fields (such as offender name or county of residence), and can generate a map showing the location of all registered offenders living near any address (such as one's home or school).

A class of persons required to register brought this suit against the Indiana Department of Correction (DOC), alleging that the DOC's failure to provide any procedure to correct errors in the registry violates due process. In response, the DOC created a new policy to give notice to current prisoners about their pending registry listings and an opportunity to challenge the information. The district court granted summary judgment on the ground that the new policy was sufficient to comply with due process. But the DOC's new procedures still fail to provide any process at all for an entire class of registrants—those who are not incarcerated. We thus reverse the district court's grant of summary judgment and remand for further proceedings.

I

Indiana's registry was enacted in 1994; it was modeled on New Jersey's “Megan's Law,” the country's first sex offender registration statute. Many states have created similar registries since then, spurred no doubt by Congress's threat of withholding grant money from states that did not. See generally Wallace v. State, 905 N.E.2d 371, 374 (Ind.2009) (discussing the history of Indiana's registry and the impact of the 1994 Jacob Wetterling Crimes Against Children and Sexually Violent Offenders Registration Act). Over time, Indiana's registry has greatly expanded in scope, in terms of both who is required to register and what registration entails.

Today, a conviction for any of 21 different offenses, including some non-sex offenses such as murder, voluntary manslaughter, and kidnapping, requires an offender to be listed on the registry. See Ind.Code § 11–8–8–5. Placement on the registry comes with a variety of obligations and restrictions; failure to comply can have criminal consequences. Among other obligations, a registrant must periodically report in person to the local law enforcement authority—for most, annually, and for sexually violent predators, every 90 days—to update contact information and take a new photograph. Id. § 11–8–8–14. Failure to do so is a felony. Id. § 11–8–8–17. Registrants must also allow law enforcement to visit and verify their addresses (again annually for most and every 90 days for sexually violent predators). Id. § 11–8–8–13. Registrants must carry a valid driver's license or state identification card at all times, or risk prosecution, id. § 11–8–8–15; they are forbidden from changing their names, id. § 11–8–8–16.

The status of being a “sexually violent predator” carries with it extra burdens. In addition to their obligation to register more frequently, sexually violent predators are regulated in other ways: they cannot live, work, or volunteer within 1,000 feet of a school, public park, or youth program center. To do so is a felony. Id. § 35–42–4–10; 35–42–4–11(c); see also Alex Campbell, Motel Home to City's Largest Sex Offender Cluster,Indianapolis Star, Feb. 18, 2012, available at http:// blogs. indystar. com/ starwatch/ 2012/ 02/ 18/ motel- home- to- citys- largest- sex- offender- cluster/; Jeff Wiehe, Sex-felon Residency Law Vexes Everyone,Fort Wayne J. Gazette, Jan. 8, 2012, available at http:// www. journalgazette. net/ article/ 20120108/ LOCAL/ 301089926/– 1/ LOCAL 11. In addition, if a sexually violent predator plans to be absent from her home for more than 72 hours, she must inform local law enforcement in both the county where she lives and the county she plans to visit of her travel plans. Ind.Code § 11–8–8–18.

II

David Schepers is one of an estimated 24,000 registrants on Indiana's Sex and Violent Offender Registry. (This number comes from data collected in February 2010, at which time the registry contained 24,000 registrants, some of whose obligations to keep their data current had expired, and 11,000 of whom were under a current obligation to comply with these rules.) Schepers must register because he was convicted of two counts of child exploitation in 2006. If one were to visit Schepers's registry profile today, she would see those two counts along with the designation “Offender Against Children.” But for some time in the past, Schepers was erroneously designated as a “Sexually Violent Predator” and thus was subject to the more burdensome requirements and restrictions that apply to that group. (There is no dispute that Schepers is not a Sexually Violent Predator under Indiana law.) He tried to correct this error, but he found that the DOC provided no official channel or administrative mechanism allowing him to do so. He turned to informal channels, telephoning officials in the DOC in an attempt to get the label removed. When that proved unsuccessful, he brought suit against the DOC under 42 U.S.C. § 1983 on behalf of a class of registrants, arguing that the DOC's failure to provide any mechanism to correct registry errors violated due process and seeking injunctive relief to establish such a procedure.

In response to the suit, the DOC instituted a new policy designed to provide some process to correct registry errors. It calls that policy the “Sex and Violent Offender Registry Appeal Process.” Under the new Appeal Process, the DOC must send prisoners notice (consisting of two forms—a “notice” and a “specimen”) before they are released from their institution that explains what information will be published on the registry. The notice informs the prisoner that if there are any errors with his information, he has 20 days to seek review by submitting an appeal to the director of the Division of Registration and Victim Services. The person deciding the appeal (the “Appeal Authority”) can then request additional information or consult with the prisoner. The policy does not require the Appeal Authority to hold a hearing, formal or otherwise. After 30 days have passed, all appeals are “deemed denied.” If an appeal is not deemed denied, the prisoner will be notified of a decision to grant an appeal in full or in part. The prisoner has no right to further review after an appeals decision. As we indicated earlier, this Appeal Process applies only to those who are incarcerated in DOC facilities; it does not apply to personslisted on the registry who already have been released or were never incarcerated in a DOC facility (perhaps because they received a probationary sentence or they were convicted in another state).

After enacting this new policy, the DOC moved for summary judgment on the basis that the policy was sufficient to meet the requirements of due process. In addition, it argued that the Due Process Clause did not apply at all because mistakes in the registry do not infringe any constitutionally protected liberty interest. The district court rejected the DOC's argument that the Due Process Clause did not apply, holding that misclassification of registrants does implicate an offender's liberty interest and is thus protected by the Due Process Clause. But the court agreed with the DOC that its new appeals policy was sufficient to meet the Clause's requirements, and granted summary judgment. Plaintiffs now appeal.

III

We review the grant of a motion for summary judgment de novo, construing all facts and drawing all inferences in the light most favorable to the non-moving party (here, Schepers and the plaintiff class). Lagestee–Mulder, Inc. v. Consolidated Ins. Co., 682 F.3d 1054, 1056 (7th Cir.2012). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id.

We begin by addressing a preliminary argument raised by the DOC unrelated to the merits of the due process question. The DOC contends that it cannot be the entity required to provide process, even if process is due, because (it says) it is not the entity responsible for mistakes in the sex offender registry. Put briefly, the DOC argues that Schepers has sued the wrong defendant. The DOC stresses that it “does not publish any information on the Internet” and “does not control the sex offender registry web site.” Instead, those tasks are currently performed by the Indiana Sheriff's Association. But the DOC does not and cannot contest that, under state law, it is the entity ultimately responsible for the creation, publication, and maintenance of the registry. See Ind.Code § 11–8–2–12.4 (“The department shall ... Maintain the Indiana sex and violent offender registry.”); id. § 11–8–2–13(b) ...