In re the Personal Restraint of Meyer

Alexander, J.

(dissenting) — As the majority has observed, convicted sex offenders are required, upon release from prison, to register with the sheriff in the county where the released offender intends to reside.⁵ RCW 9A.44.130(1). In addition, “public agencies” are permitted to disclose to the public “relevant and necessary” information about a sex offender. RCW 4.24.550(1). The degree to which information is disclosed varies and is to be “rationally related” to the “level of risk” the released person is deemed to pose to the community. RCW 4.24.550(2). Although the initial determination of the degree of risk is made by the End of Sentence Review Committee (ESRC) of the Department of Corrections, the offender’s risk level is ultimately determined by “local law enforcement.” RCW 4.24.550(4)(b).⁶ Offenders are not, however, afforded notice of when or where the decision that bears on community notification will be made. Neither are they provided a hearing at which they can challenge the determination of their final risk classification and/or the degree of community notification.

In State v. Ward, 123 Wn.2d 488, 869 P.2d 1062 (1994), we upheld the registration requirement for sex offenders against a variety of challenges, including a claim that the requirement to register violated the due process rights of offenders. The petitioners here do not reassert a challenge to the registration requirement nor do they assail the statutory provision requiring community notification. Their personal restraint petitions are limited to presenting a question that we did not address in Ward, i.e., whether offenders have a due process right to notice and a hearing before their risk level is determined and information about them is disseminated to the public.

As the majority observes, the parties who bring their personal restraint petitions to us are all convicted sex offenders whose risk levels have been determined by the ESRC. Petitioner Douglas Meyer was classified as a risk Level I sex offender (low risk), while petitioners Eric Erickson and Bradley Sundstrom were classified as Level III sex offenders (high risk). At the time they filed their petitions, the appropriate local law enforcement agency had not made a final determination of the risk level of any of the petitioners.

The petitioners claim that the classification scheme is unconstitutional because it fails to provide them with notice and an opportunity to be heard before their risk level classification is determined and personal information about them is disclosed to the community. The majority rejects this claim.

More specifically, the petitioners contend that the public dissemination of private information about them, absent provision of notice and an opportunity to be heard on the question of what degree of risk they pose to the community, infringes on their protected liberty interests. This interest, they suggest, is protected by the Fourteenth Amendment of the United States Constitution which prohibits states from depriving persons of “life, liberty, or property, without due process of law” as well as the similarly worded article I, section 3, of the Washington Constitution.⁷

The petitioners assert that their right to “liberty’ arises from three sources: (a) the mandatory requirements of the community notification statute; (b) their right to privacy or, more specifically, the right not to be wrongfully stigmatized and labeled as dangerous; and (c) their interest in avoiding further incarceration. I devote my attention entirely to their second claim.

This court has identified two types of interests protected by the right to privacy: the right to autonomous decision making and the right to nondisclosure of intimate personal information, or confidentiality. O’Hartigan v. Dep’t of Personnel, 118 Wn.2d 111, 821 P.2d 44 (1991). The petitioners, while conceding that convicted sex offenders do not have a protected interest in confidentiality of public records and criminal history, assert that the disclosure of certain identifying information in conjunction with a public “branding of dangerousness” implicates constitutionally protected privacy interests. Opening Br. in Supp. of Personal Restraint Pets, of Erickson & Sundstrom at 19. Petitioners essentially argue that their interest in avoiding wrongful stigmatization and in protecting their reputation is sufficient to require the state to afford them due process in the form of notice and a hearing before information about them, beyond that which is contained in public records, is disclosed to the public.

In my view, the petitioners’ arguments are entirely consistent with the United States Supreme Court’s decision in Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971). There, the Court reviewed a statute that permitted local governments to post notices in stores in order to identify persons who had been prohibited from purchasing liquor. Id. at 434. The statute did not provide for a hearing before the notices were posted. In striking down the statute, the Court said, “Where a person’s good name, reputation, honor or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Id. at 437. The Court went on to state, “Only when the whole proceedings leading to the pinning of an unsavory label on a person are aired can oppressive results be prevented.” Id.

The majority stresses a later case, Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976). There the Supreme Court held that an individual had no right to due process before police officers posted the individual’s picture in various retail outlets with an indication that the person pictured was an “active shoplifter.” Id. at 712. It said that one’s interest in reputation is “neither ‘liberty nor ‘property’ ” guaranteed against state deprivation without due process of law. Id. Thus, it concluded that reputation “alone,” apart from some tangible interest, is not deserving of protection. Id. at 701. This case has led courts to engage in the so-called “stigma-plus” test in assessing such cases.

The majority also cites Russell v. Gregoire, 124 F.3d 1079 (9th Cir. 1997), wherein the United States Ninth Circuit Court of Appeals looked at Washington’s community protection act and rejected due process claims by offenders, holding that the act “does not violate any protected privacy interest, and does not amount to a deprivation of liberty or property.” Id. at 1094. While that decision is not binding on this court, a decision from the Ninth Circuit should always be afforded significant consideration. Even after viewing that decision with appropriate deference, I am left with the opinion that the decision is flawed in that the court’s decision is based largely on a conclusion that “[t]he information collected and disseminated by the Washington statute is already fully available to the public. . . .” Id. This conclusion overlooks the fact that under the statutes in question public agencies have extremely broad discretion to release to the community all “relevant and necessary information” regarding a sex offender when “necessary for public protection.” RCW 4.24.550. In a practical sense, there does not appear to be any limit on the discretion of public agencies as to what information should be disseminated to the public.⁸ In that regard, I agree with the observations of Judge Dwyer of the United States District Court for the Western District of Washington who noted in another case that this statute permits “all information provided by the registrant (including his address and place of employment)” to be publicized and permits agencies to “disseminate not just the offender’s record of charges and convictions, but also a narrative description of alleged crimes with which he was never charged.” Doe v. Gregoire, 960 F. Supp. 1478, 1481-82 (W.D. Wash. 1997).

There is considerable authority from other jurisdictions that community notification statutes, like those before us here, implicate a privacy or liberty interest.⁹ The case that bears the most similarities to the instant case is Doe v. Poritz, 142 N.J. 1, 662 A.2d 367, 421 (1995), a decision of the Supreme Court of New Jersey. Like Washington, New Jersey’s community notification law¹⁰ provided for notification to the public based on three levels of risk to offend: low, moderate, and high. Doe v. Poritz, 662 A.2d at 378. The New Jersey statute was comparable to Washington’s in that risk levels of offenders were determined without the benefit of prior notice to the offender or the provision of any hearing. The New Jersey court, relying on the United States Constitution as well as a provision of the New Jersey Constitution, determined that the statute impinged on the offenders’ “liberty interests” sufficient to trigger due process protections. Id. at 420. It concluded, therefore, that an offender could obtain judicial review of a determination of level two or three classification, if the offender objected to such a classification prior to notification. Id. at 421.

The highest court of our neighboring state of Oregon has similarly held that the parole board of that state cannot publicly brand someone as a “predatory sex offender” without first affording the person notice and a hearing. Noble v. Bd. of Parole & Post-Prison Supervision, 327 Or. 485, 964 P.2d 990 (1998). In a well-reasoned opinion authored by Justice Gillette, the court said:

When a government agency focuses its machinery on the task of determining whether a person should be labeled publicly as having a certain undesirable characteristic or belonging to a certain undesirable group, and that agency must by law gather and synthesize evidence outside the public record in making that determination, the interest of the person to be labeled goes beyond mere reputation. The interest cannot be captured in a single word or phrase. It is an interest in knowing when the government is moving against you and why it has singled you out for special attention. It is an interest in avoiding the secret machinations of a Star Chamber. Finally, and perhaps most importantly, it is an interest in avoiding the social ostracism, loss of employment opportunities, and significant likelihood of verbal and, perhaps, even physical harassment likely to follow from designation. In our view, that interest, when combined with the obvious reputational interest that is at stake, qualifies as a “liberty” interest within the meaning of the Due Process Clause.

Noble, 964 P.2d at 995-96.

I find myself in agreement with the reasoning of the Oregon and New Jersey courts and conclude, as did they, that the petitioners have a significant liberty interest in not having their reputation wrongly stigmatized by the government. I reach this conclusion because it is readily apparent to me that the degree to which information is released to the public about these offenders can have significant effect on their lives. As the Oregon court observed, ostracism, loss of employment, and verbal and/or physical harassment damages more than one’s reputation and constitutes significant intrusions of one’s liberty. Noble, 964 P.2d at 996. If the intrusion is the result of an incorrect branding of one’s reputation, this is not a trifling matter but, rather, is an injustice. In sum, I concur with the reasoning of the Oregon and New Jersey courts and would hold that before decisions are finally made as to the degree of public notification concerning the risk, if any, these offenders pose to the public, they should be provided with notice and an opportunity to be heard.

Although the majority acknowledges a feeling of “discomfort” with the “seeming unfairness” of the process that these offenders assail, it nevertheless sweeps its concerns aside indicating that the offenders have the remedy of seeking judicial review by writ of certiorari for an arbitrary or capricious classification. Majority at 624. This, in my view, is a hollow remedy since it would be after the fact and would be equivalent to “closing the barn door after the horse has been let out.” In view of the considerable interest petitioners have in making certain that they are not disadvantaged economically or physically by an unjustifiable sullying of their reputation, offenders should not have their risk level finally determined and information about them disseminated before they are afforded notice and hearing in order to assure that the information that is released to the community is not greater than what is “relevant and necessary” for the protection of the public. I would so hold. Because the majority concludes otherwise, I respectfully dissent.

Johnson and Sanders, JJ., concur with Alexander, J.

Reconsideration denied March 26, 2001.

5 Offenders must provide the following information when registering: name, address, date and place of birth, place of employment, crime for which they were convicted, date and place of conviction, aliases used, social security number, photograph, and fingerprints. RCW 9A.44.130(3).

6 An adult offender may petition the superior court to be relieved of the duty to register, but only after he or she has spent 10 consecutive years in the community without being convicted of any new offense. RCW 9A.44.140(3).

7 Article I, section 3, of the Washington Constitution states “No person shall be deprived of life, liberty, or property, without due process of law.” I agree with the majority that Washington’s Constitution does not afford greater privacy protection than does the Fourteenth Amendment to the United State’s Constitution and that the analysis under either is the same. See O’Hartigan v. Dep’t of Personnel, 118 Wn.2d 111, 117-18, 821 P.2d 44 (1991); Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 124, 937 P.2d 154, 943 P.2d 1358 (1997).

8 Petitioners Erickson and Sundstrom, in the appendices to their Supplemental Brief, cite a report from the Washington State Institute of Public Policy that contains examples of actual notices that have been given to the public about released offenders. These examples contain information about: alleged crimes for which the offender has not been convicted, subjective opinions about results of sexual deviancy counseling, home address of the offender, physical description of offender, other addresses that the offender is known to frequent, place of employment of the offender, and even the vehicle license number of any automobile the offender may drive. See Pet’r’s Suppl. Br. at 14 (citing Scott Matson & Roxanne Lieb, Wash. State Inst, of Pub. Policy, Community Notification in Washington State: 1996 Survey of Law Enforcement (1996)).

9 See, e.g., Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995); W.P. v. Poritz, 931 F. Supp. 1199 (D.N.J. 1996), rev’d on other grounds by E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997); Doe v. Pryor, 61 F. Supp. 2d 1224 (M.D. Ala. 1999); Roe v. Farwell, 999 F. Supp. 174 (D. Mass. 1998); Doe v. Pataki, 3 F. Supp. 2d 456 (S.D.N.Y. 1998); Doe v. Attorney Gen., 426 Mass. 136, 686 N.E.2d 1007, 1013 (1997); Noble v. Bd. of Parole & Post-Prison Supervision, 327 Or. 485, 964 P.2d 990 (1998); In re Risk Level Determination of C.M., 578 N.W.2d 391, 397 (Minn. Ct. App. 1998).

10 New Jersey was the first state to enact a community notification law commonly referred to as “Megan’s Law.” E.B. v. Verniero, 119 F.3d 1077, 1081 (3d Cir. 1997).