Connecticut Department of Public Safety v. Doe – Oral Argument – November 13, 2002

Media for Connecticut Department of Public Safety v. Doe

Audio Transcription for Opinion Announcement – March 05, 2003 in Connecticut Department of Public Safety v. Doe

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William H. Rehnquist:

We’ll hear argument now in Number 10-1… 1231, the Connecticut Department of Public Safety versus John Doe.

General Blumenthal.

Richard Blumenthal:

Thank you, Mr. Chief Justice, and may it please the Court:

This case, like Alaska’s, is about fully accurate, concededly true public record information about convicted sex offenders that citizens of Connecticut and the 50 other States need and deserve… indeed, they demand be made available and accessible… so they can make choices about how to protect themselves, their families, and their children.

And each of the convicted sex offenders on this registry has received a hearing, a full and fair hearing, many of them a trial, all of them the full panoply of due process rights and have been found guilty beyond a reasonable doubt.

William H. Rehnquist:

In this case, General Blumenthal, we’re not talking about ex post facto.

We’re just talking about due process of some sort because the Second Circuit said this couldn’t be applied whether it was done afterwards or before.

Richard Blumenthal:

We are, indeed, Mr. Chief Justice, talking only about the due process issue and only about whether, first, the listing on this registry is defamatory and, second, whether the defamation, if, in fact, it exists… and we say it doesn’t… is a violation of the Due Process Clause in the way that it is imposed here, that is, under Paul v. Davis, whether there is a loss or alteration of right or status as a result of that defamation–

Sandra Day O’Connor:

It’s a procedural due process claim, not substantive due process.

Richard Blumenthal:

–The… the claim has been a procedural due process claim, although the United States as amicus has raised… and we welcome that it has raised… the substantive due process issue.

But–

Sandra Day O’Connor:

We don’t normally address issues raised by amici, do we?

Richard Blumenthal:

–I don’t know whether the Court is more hospitable to claims that may be raised by amici from the United States Government, but it certainly is a relevant issue to be addressed here because many of the claims raised under the guise of due process really involve line drawing and categories.

For example, the question of which offenses should be listed on the registry really is a legislative determination.

Anthony M. Kennedy:

Well, the Second Circuit’s position puts us… decision puts us in a somewhat difficult position.

It’s a procedural due process opinion, and we have to say, procedural due process to protect what right?

So we have to go back and find out what the basic right they’re talking about is, and I suppose the narrow way to do is to look just to whether or not there’s… there’s a Paul versus Virginia type of claim with this… with this… with a stigma–

Richard Blumenthal:

Certainly that is the way the… the case comes to the Court, raising that issue, and it’s one that we believe merits reversal of the Second Circuit.

We agree… and I must say very emphatically we agree so far as the issue of stigma is concerned… that the implication as reached by the Second Circuit is correct, that is, that every person on this list is more likely than the average person to be currently dangerous.

We think that implication is true.

Every bit of information on this registry, in fact, is concededly true.

And there is differentiation among the different registrants.

The differentiation occurs by the offense; that is, the information that is listed as to when the offense occurred, the nature of the offense, the number of offenses enables the public, having this information accessible and available, to make judgments about whether that individual in fact may be dangerous.

And of course–

John Paul Stevens:

–May I ask you a question about your system?

Last year we had a case that came, I think, from Kansas, McKune, involving whether a person had to… could be, in effect, compelled to go into a sex offender program.

Does your… and that… presumably the… those treatment programs do some good in preventing recidivism.

Does… does your reporting system give the convicted offender a chance to differentiate between whether he went through such a program and one who did not?

Richard Blumenthal:

–There is–

John Paul Stevens:

Does it draw any distinction between those two?

Richard Blumenthal:

–Justice Stevens, there is no category of information on the registration, as it’s made available to the public, about whether there has been treatment.

The information provided is very simply address, identifying factors–

John Paul Stevens:

So they treat one who had treatment and one who had no treatment exactly the same.

Richard Blumenthal:

–That is correct, so far as the information provided to the public is concerned.

And the reason, if I may presume to say it, may be that the effectiveness of treatment may be problematic, and the same is true with hearings on dangerousness.

The unreliability of these hearings has been a very, very substantial problem, and the kind of information that may come to the public from such hearings or from information about treatment may be as misleading as it is accurate in many instances.

David H. Souter:

Would you… would you agree that there is at least some subclass of cases here in which the non-dangerousness could be shown in a way that probably was highly accurate and did not involve the… the difficulties that you raise?

What I’ve got in mind is this.

The… the categories of individuals who are listed under the Connecticut statute include young men who as teenagers had intercourse with younger teenage girls.

No one, by normal standards of English usage, would say at the age of 25 that… that a… a young man like that is dangerous in any sense that we would associate dangerousness with… violent sex acts and things of that sort.

So there seems to be a… a category, not merely a set of individuals who may prove they’re not dangerous, but a category that is presumptively not dangerous in the sense that the others are.

And yet, there is no way for them, in effect, to… to get themselves declared ineligible for the… for the stigmatization that… that goes on.

Why isn’t there a due process problem that is legitimately raised as at least to a category like that?

Richard Blumenthal:

There… there is, in fact, Justice Souter, a category of the registrants who are excepted for the… a… a category of convicted offenders who are excepted from the registry if, for example, they are 18 or younger and they commit statutory rape, if the victim is 13 to 16 years old.

There are exceptions for making accessible to the public information–

David H. Souter:

What do… what do they have to do to get the exception?

Richard Blumenthal:

–At the time of sentencing, that finding is made by the sentencing court, or later, that that kind of registration is not required by public safety.

David H. Souter:

What about the ones who have already been sentenced?

In other words, the… the… sort of the carryover class that you pick up the minute the statute goes into effect?

I mean, these… these are the ones who are the… raising in… in the prior case, the ones who are raising the ex post facto kind of claim.

What do you do about them?

Richard Blumenthal:

The… the legislature has made a determination that certain… under certain circumstances, the crime is not registrable, that is, there is no requirement for registration.

In certain instances unquestionably, Justice Souter–

David H. Souter:

Well, but take… take… simply take the case as an example.

The 19-year-old boy the… whatever it is… 14-year-old girl have intercourse.

Is… is that person, if convicted prior to the date of the statute, subject to exception from the listing, and… and how–

Richard Blumenthal:

–They… they could go back to the sentencing court.

There is a provision–

David H. Souter:

–I see.

Richard Blumenthal:

–that someone who would fit the exceptions can go back to the sentencing court.

Ruth Bader Ginsburg:

Does this… does this category fit?

Let’s take… those ages will do fine, 19 and 14.

Does that fit within an excepted category?

Richard Blumenthal:

I’m sorry, Justice Ginsburg.

I’m… I’m not sure that I followed the… the specific class that Justice Souter was referencing.

Ruth Bader Ginsburg:

You said that there are certain categories of people who can be exempted from that, and I asked if the hypothetical that Justice Souter raised… that particular hypothetical… fits within that exempted or excepted class.

Richard Blumenthal:

I believe that it could.

Stephen G. Breyer:

It doesn’t on my list here.

What it says here… I mean, maybe I’m wrong in the statute which my law clerk looked up.

She’s usually right.

And it’s that you… you get into the exceptions.

You go back to the sentencing court if you committed the sexual intercourse when you were under the age of 19 with a victim between 13 to 16 and you were 2 years older.

So I think that… that Justice Souter’s hypothetical was purposely created–

Ruth Bader Ginsburg:

–Nineteen.

Stephen G. Breyer:

–so they didn’t fit within that exception.

And… and I… I suspect that we can find a large number of people who would be convicted of statutory rape who don’t fit within this exception and who are, therefore, thrown in.

And I think the point of his question… it would… certainly would be mine… is what about those people.

Richard Blumenthal:

And… and that question really is the more fundamental issue about legislative line drawing and unquestionably–

David H. Souter:

Well, before we get to line drawing, I misunderstood your response to me I guess.

What is the answer?

Are those people in my hypothetical exempted or do they have a process by which they can be exempted or not?

Richard Blumenthal:

–Maybe I should–

David H. Souter:

Justice Breyer understands that they would not be exempted from listing.

And I… I guess… Is he right or isn’t he?

Richard Blumenthal:

–I… I believe that probably they would not be exempted, although they could go back to the sentencing court, and determine whether the circumstances of that hypothetical and… and… I’m not–

Ruth Bader Ginsburg:

But what is the category?

Richard Blumenthal:

–But I had in mind all–

Ruth Bader Ginsburg:

What is the category, General Blumenthal, in which such a person might go back?

There seem to be rather precise categories that are excepted with an age range, and if you fall outside that age range, there doesn’t seem to be built into this scheme any discretionary exercises.

Richard Blumenthal:

–That is correct, Justice Ginsburg.

Richard Blumenthal:

And someone who was not within the exemption… and… the hypothetical may put that person outside it… could not go back.

The… the legislature has drawn that line, and it’s done so because it has to draw lines somewhere and has imposed that classification because it’s judged it to be in the public interest to do so.

David H. Souter:

Let’s assume… you know, we accept the fact that line drawing has to be done and so do the other people on the other side of the case.

Their claim is that the fact is we’ve got at least some category which we can identify on a categorical basis which is being stigmatized as dangerous for a period of… I guess, a minimum of 10 years.

And all they’re asking for is a way out.

They’re not even claiming that you affirmatively have got to make a proof of dangerousness in the first instance with respect to those.

They are saying, as a matter of procedural due process, there ought to be a way out and there is none.

That’s not to contest line drawing.

That is to contest the fact that the State could let them have the burden of getting out, and the State still won’t do it.

What is the justification?

Richard Blumenthal:

The justification is that the information that is put on the registry is accurate.

The stigma, if there is any stigma, results from the conviction of that offense, and–

David H. Souter:

No.

That is not… I don’t think that’s their argument.

Their argument is not that they are… are being subject to a stigma for 10 years because they were convicted.

They are being subject to a stigma for 10 years because the State of Connecticut is saying through the Internet in… in effect, that they are currently dangerous.

That’s the stigma, not the conviction, the current state of dangerousness which is stigmatizing.

Richard Blumenthal:

–With all due respect, Justice Souter, the court of appeals did not find that the fact of being on the registry means that every individual is subject to that stigma.

David H. Souter:

No.

What it means is what you have just… to begin with, what you just stipulated, that in fact there is a higher probability, a… a greater risk of… of dangerousness.

But if, in fact, there is no means of differentiation for any one person on the register, then that probability judgment is going to be applied in the public mind, naturally, to every person on that unless there is a way to establish an exemption.

Richard Blumenthal:

There is differentiation insofar as the crime itself is listed.

David H. Souter:

There is, and yet the very fact that the State chooses to list that crime is a clear indication that the State thinks that people in that category of crime deserve to be listed with others who are potentially dangerous.

So the State’s very categorical treatment, in effect, has said to the public, you can’t draw any clear distinctions based on the particular crimes that we’ll also inform you of.

You’ve already made the categorical judgment.

Sandra Day O’Connor:

Mr. Blumenthal, may I ask you whether this statute has helped in any way in reducing sex crimes in Connecticut?

Richard Blumenthal:

We… we can’t really say, Justice O’Connor, at this point because the Internet availability has been suspended by order of the court.

All of this information–

Sandra Day O’Connor:

How long was it in effect?

Richard Blumenthal:

–It was in effect for a couple of years, and even then it was too early to make a judgment as to whether or not it was having any discernible effect statistically, and there’s nothing in the record on that point.

Richard Blumenthal:

I… I should report that there are now about 3,000 registrants and some 500 approximately have been convicted again of a registrable offense.

The point here is, though, that all of this information is public record information.

The requirement and the obligation for registration existed before 1998.

In fact, it began in 1994.

So no status or right was altered.

And the registration requirement really is separate from how the information is made available to the public, and that goes to the Paul v. Davis issue.

And with your permission, Mr. Chief Justice, I’d like to reserve the balance of my time.

William H. Rehnquist:

Very well, General Blumenthal.

Mr…. General Olson, we’ll hear from you.

Theodore B. Olson:

Thank you, Mr. Chief Justice, and may it please the Court:

General Blumenthal conveyed three very important aspects of this case in his opening sentence.

In essence, he said the people of Connecticut seek access to concededly truthful, public record and otherwise public available information concerning convicted sex offenders.

These individuals have no constitutional right to conceal these public truths from interested public citizens.

The Second Circuit examined the registry and said not only is the information about every individual concededly true, but the registry… and this is set out verbatim in page 6 of Connecticut’s… the blue brief.

The Department of Public Safety has not considered or assessed the specific risk of re-offense of any individual prior to his or her inclusion within this registry and has made no determination that any individual included in the registry is currently dangerous.

William H. Rehnquist:

That’s what it says on the registry or on the Internet?

Theodore B. Olson:

Exactly.

Ruth Bader Ginsburg:

But you could skip that entirely.

You get… this is on the… it’s not listed… I can go to the Internet and go directly to the person.

This information… this disclaimer… is not associated with the individual offender listing.

It’s… it’s stuck in the middle of a bunch of stuff before.

Theodore B. Olson:

Well, that’s true, Justice Ginsburg.

It is not repeated for every name in the registry, but it’s clearly set forth in the registry itself.

It’s put in italics.

And the… and the State goes on to say, individuals included within the registry are included solely by virtue of their conviction record and State law.

The main purpose of providing the… this data on the Internet is to make the information more easily accessible and available, not to warn about any specific individual–

David H. Souter:

Well, except for the fact that… that the… the State has made a judgment and it doesn’t deny it, that individuals who have been convicted of crimes in the categories subject to the law, are as a categorical matter more likely to commit them in the future.

They are more likely to be dangerous than the general population.

And so it’s true.

The State does not, in its register, say, and by the way, this John Doe is especially dangerous.

David H. Souter:

But the State can’t deny that it’s saying this John Doe is part of the category that we think dangerous enough to list through the Internet.

Theodore B. Olson:

–Well, what they do say is that the public is entitled to and should make specific judgments about specific individuals.

David H. Souter:

But it can’t.

I mean, it cannot do that on the… on the basis of what the State puts out because all it knows, from what the State puts out, is the category the person falls into.

Theodore B. Olson:

Precisely.

And the point that you were making earlier, Justice Souter, is that there are different types of crimes that may be of interest to different individuals.

If you have small–

David H. Souter:

All… all of which, however, are regarded as being within some… above some threshold of dangerousness or they wouldn’t be listed on the Internet.

Theodore B. Olson:

–Because they are… they are responding to the people’s request in 50 States… and the people of the United States through the Congress… to make information available to us about people who have been convicted of sex crimes.

I’ll grant you that, but have the people of the 50 States also said, and we don’t want there to be any way out for someone who can prove that he is either non-dangerous or… or in a category which is highly… which is much less likely to be dangerous?

Theodore B. Olson:

Well–

David H. Souter:

I mean, have people said there’s no escape?

Theodore B. Olson:

–If… if… there… that’s… the Federal statute allows the State to exercise judgment with respect to the use of its resources with respect to this public record, truthful information.

Now, the State of Connecticut… the question that you’re raising, it seems to me, falls squarely within the concept of a substantive due process challenge, not a–

David H. Souter:

Well, but isn’t it… it’s also squarely within procedural due process.

The… the State is saying you’re putting a label on me, and that’s okay if you give me a way to get out of it.

Theodore B. Olson:

–But the State–

David H. Souter:

That’s a procedural due process challenge.

Theodore B. Olson:

–The label that the State is putting on is that you have been convicted of a sex crime and that the… and you must draw… we have not decided that you are dangerous.

David H. Souter:

No, but that’s where… I mean, I think that’s where the… the… we’re not sort of meeting each other in the argument.

The State does say that much.

No question about it.

But by this categorized treatment, the State is saying something further.

The State is saying people in these categories are likely to be more dangerous.

It’s a… it’s the second statement that is the gravamen of the problem that we’ve got here, not the truthful first statement.

Theodore B. Olson:

Well, the… the Court has said repeatedly that the… this Court will examine challenges with respect to the… the… in that category on a substantive due process basis if the classification is reasonable–

Antonin Scalia:

Well, that’s… that’s right there, but that is not the challenge that’s being made.

There’s no challenge being made here that the State cannot have a register… or a register that is… is structured by category.

The challenge that’s being made here is that if you do that, there should be a due… there should be a procedural mechanism for somebody who can show that he’s not dangerous to get out.

That isn’t substantive due process.

Theodore B. Olson:

–Well, and… and our submission is that the determination… and this Court has stated it as recently… recently as a year ago that sex offenders are more likely to be recidivists than other categories of individuals, but that that does not mean, Connecticut goes on to say, that any individual is necessarily dangerous.

That classification is rational.

Now, it is also rational for Connecticut to have determined, as it did, that we’ll accord opportunities for people to address in… in certain circumstances the nature of their conviction.

But it’s also rational for–

John Paul Stevens:

General Olson, can I ask you a broader question?

Do you think it would be permissible for Connecticut to require every person in the category to wear a badge that recited the information that goes on the Internet?

Theodore B. Olson:

–We think that that would be a very difficult situation, Justice Stevens, in that… the… and… and I would be concerned about that.

But–

John Paul Stevens:

Why?

What’s wrong with that?

Theodore B. Olson:

–Well, because that requires the individual to carry that notification himself to convey the government’s message.

John Paul Stevens:

Yes.

Theodore B. Olson:

It also requires that message to be brought into every situation that the individual is involved in.

The Internet is a reasonable and relative… minimally intrusive way of responding to a question that a citizen may ask of a State and to which the citizen is entitled to an answer.

The citizen here has to ask the question.

It isn’t carried around with the individual everywhere the individual goes.

And this is public record information.

As one of the questions in the earlier argument implied, if a private citizen… Cox Broadcasting, for example… decided to make this information available to the public, it would be… have an absolute constitutional right to do so.

It seems anomalous to suggest that the State of Connecticut cannot impart to its citizens the same information that Cox Broadcasting would have an absolute constitutional right to do so.

It seems to us–

David H. Souter:

But nobody is… nobody is saying it can’t.

Nobody is saying Connecticut can’t do this.

All they’re saying is if Connecticut does it, they’ve got to give us an… an escape hatch.

Theodore B. Olson:

–Well, it seems to me, Justice Souter, that that conflicts directly with what the Court said in Paul versus Davis, that in the first place, there is not defamation here because it’s a truthful imparting of information.

David H. Souter:

If… if there is no potential for a defamatory or stigmatizing statement, then there is no case.

I agree with you.

But simply to say there’s no defamation here is… is, with respect, it seems to me, to try to avoid the question.

Theodore B. Olson:

Well, I don’t think it is, but… but even if it were defamation, it is not… there is no stigma plus, as this Court required in Paul versus Davis.

There’s no confinement of liberty.

There’s no denial of any individual on this list of a right to a job–

David H. Souter:

Is there stigma plus in Justice Stevens’ hypothetical, wearing the badge?

Theodore B. Olson:

–There may well be.

David H. Souter:

Why isn’t there stigma plus then in creating a… in effect, a subclass of citizens who have got to go through quarterly registration possibly for the rest of their lives?

Theodore B. Olson:

It… it… we submit that that is a minimal, reasonable way for the State to keep track of people who have committed crimes and then–

John Paul Stevens:

But, General Olson, suppose you look at it as a stigma minus.

What about the hypothetical I asked earlier about somebody who took… a convicted felon who took the… the treatment program and survived it and one who did not?

They’re treated alike in this system.

Theodore B. Olson:

–Yes, they are because the State has made a determination, as have 49 other States and Congress, that the people are entitled to certain public record information.

That does not apply–

John Paul Stevens:

But it’s… it’s incomplete information as to some.

Theodore B. Olson:

–It’s… well, it is… it is incomplete information as to everyone, we submit.

But it does… it is complete information with respect to whether individuals have been convicted of a sex crime.

That is public information.

That is information to which the citizens are entitled.

Thank you.

William H. Rehnquist:

Thank you, General Olson.

Ms. Sadin, we’ll hear from you.

Shelley R. Sadin:

Mr. Chief Justice, may it please the Court:

In the eyes of a concerned public, every person posted on Connecticut’s Megan’s Law list poses a serious threat to the public, particularly to children.

The public knows that Megan’s Law is named for–

William H. Rehnquist:

You… you state that as a fact, Ms. Sadin.

What is the… what is the record support for that statement?

Shelley R. Sadin:

–Petitioners themselves have stated–

William H. Rehnquist:

I’m asking you… Ms. Sadin, I’m asking you what is the record support for the statement you just made?

Shelley R. Sadin:

–That… that the public knows this is a Megan’s Law list?

William H. Rehnquist:

That… that the public knows that… what… that they’re… that they’re dangerous.

Shelley R. Sadin:

The… the message of dangerousness comes from a number of sources, Your Honor.

The first is that the purpose of this law, the declared purpose of this law, repeated by petitioners and repeated by the lawmakers who passed it, is to protect the public from recidivist sex offenders, and particularly to protect the children from such offenders.

The law is administered and the registry is both put together and published by the State police.

The State police on the website state that it is their mission to prevent crime and protect the public.

William H. Rehnquist:

But they also say that it… it… they’re not saying that anyone is dangerous on that same website, don’t they?

Shelley R. Sadin:

They don’t actually.

The disclaimer does not say that everybody is not dangerous.

What the disclaimer says is that no dangerousness assessment is made with respect to any individual.

William H. Rehnquist:

Well, why isn’t that good enough?

Shelley R. Sadin:

It isn’t good enough because all it says is what we already know, which is that nobody has been assessed for dangerous or not.

And it’s contradicted by the repeatedly emphasized message to the public, which petitioners themselves stressed so urgently below, that the purpose of this law is to publish current, monitored information taken from offenders so that it can be posted on the Internet so the public will know what they look like and where they live at all times.

That sends a very compelling message.

Stephen G. Breyer:

But that’s not… that’s not… I think what I took the Chief Justice is asking… I took… and I’d have a similar question, that… that their response I think to the point that I was trying to make with Justice Souter, that maybe this is overly broad because let’s imagine the 19-year-old who simply had intercourse once with a much younger woman and obviously is no danger.

Their response is, first, it says to the public, consider every case on the merits.

We’re not saying whether it’s dangerous or not.

Second, when the people in the neighborhood to which the individual has moved look him up on the Net, they’ll see what he did, and people aren’t idiots.

They’ll understand that this is there because he fell within the law.

And besides that, they say, it’s too difficult for us to draw finer lines.

At least the legislature reasonably so could conclude.

So the question I had is, is there any objective evidence that people do cause mistake… the significance of this 19 or 20-year-old boy having his name there?

Are we just doing that because we all know… in quotes… or is there evidence of it?

Shelley R. Sadin:

There were… the… the court… the district court’s decision and the court of appeals decision that affirmed it were based on rule 9(c) statements, undisputed facts on summary judgment, and they included the fact that this is commonly known as a Megan’s Law.

There’s no disputing that.

Everybody in this country knows that Megan’s Law was passed in response to the rape and murder of a child victim.

That is the genesis of these laws, and it’s undisputed that that’s how the public understands them.

Also not in dispute is that it is the department–

Anthony M. Kennedy:

Well, the public also understands that official records have to be interpreted in different ways.

We’ve said that in… in prior decisions of this Court.

When there’s a notice on the police bulletin board and the press publishes it, it says what it says.

Shelley R. Sadin:

–Except that these–

Anthony M. Kennedy:

This… if… if you have sort of a First Amendment argument you’re concerned with here, it… it seems to me that you’re arguing at cross purposes to our precedents.

Shelley R. Sadin:

–As I understand your question, if… the problem is that it is not just truthful, already public information.

The list does not just include someone’s conviction.

It also includes a current photograph and a current address–

Sandra Day O’Connor:

Is that not truthful?

Shelley R. Sadin:

–The current photograph and the current… it is not because the message that it conveys is that this is a person who is being watched and monitored, who must, at risk of felony conviction–

Sandra Day O’Connor:

Well, what is the constitutional basis for your argument?

Could we move to that?

I mean, you’re here on a constitutional claim, and I’m not sure what it is, to tell you the truth.

Shelley R. Sadin:

–It is that there is an established liberty interest in… in a government impose… in avoiding a government-imposed stigma, which is not just government name-calling.

Sandra Day O’Connor:

Well, how does some liberty interest and reputation survive the Paul versus Davis case?

Shelley R. Sadin:

But it is more than a liberty interest and reputation.

This is a government-imposed stigma which is… it’s part and parcel of the regulations that are imposed on people.

The information posted on the registry is extracted from registrants.

On pain of felony conviction, they must–

William H. Rehnquist:

Can… can a truthful statement be stigmatizing?

Shelley R. Sadin:

–This is not a truthful statement.

William H. Rehnquist:

Well, then do you agree that a truthful statement cannot be stigmatizing?

Shelley R. Sadin:

No.

A truthful statement can also be stigmatizing, but… but it’s not–

William H. Rehnquist:

Is that consistent with Paul versus Davis?

Shelley R. Sadin:

–I think Paul versus Davis requires that there be a… as there is in this case, a false stigma.

And I think we have to go back to the understanding and the basis of this law.

This is a law which was designed to… and the public knows it was designed to… protect the public from dangerous, recidivist offenders, and that is not true with respect to many of the people, perhaps most of the people… we don’t know… who are on this list.

Not only–

Antonin Scalia:

A danger… potentially dangerous.

I mean, the government doesn’t have to make a… a rock-solid assessment that these people are dangerous.

Why isn’t it enough for the government to say this is a category of people who may be dangerous?

Shelley R. Sadin:

–The government says–

Antonin Scalia:

And is that true?

It is perfectly true.

Can the public act on it?

If it wants to, it can; if it doesn’t want to, it doesn’t have to.

It may make further assessment of whether, indeed, the may is… is close enough or… or… but… I don’t know why you insist on saying that the… that the State has said these people are dangerous.

Antonin Scalia:

It seems to me, even without the disclaimer, the most the State has said is that these people may be dangerous.

Shelley R. Sadin:

–The State says… with respect, the State says more, but even if it said that these… that these people may be more dangerous than other people, that too reduces people in the eyes… in the eyes of the public.

It causes people to, as any injury to reputation would, not want to hire them, not… want to avoid them, not want to live in the same neighborhoods with them.

And this Court, with respect to whether or not there are statistics which show that this… that some subgroup of sex offenders are more likely to recidivate, this Court has never relied just on statistical information to make dangerousness assessments about individuals, even in the context–

Anthony M. Kennedy:

Suppose this… this same information was on the… on the Internet through some private service and I got into the Internet, and I said I don’t want to live next to… to this person.

That is my judgment that I can make–

Shelley R. Sadin:

–Well, there are two points–

Anthony M. Kennedy:

–based on a public record.

Shelley R. Sadin:

–There are two points with respect to that, Your Honor.

First of all, a private citizen would not have the power, as the government does, to obtain current… to require people to register current photographs and current addresses for posting, and there is not the same government-imposed imprimatur.

These are people who are being watched.

We are requiring them to provide this information to us on a regular basis.

We advertise on the website that we keep this information as updated as possible in… in furtherance of the Department of Public Safety’s declared mission of protecting the public and preventing crime.

All… the entire context of this registry and the purpose of the law sends the ineluctable message that the people who are posted pose a present threat to the public.

Stephen G. Breyer:

Let… let me give you that.

What’s bothering me… and it may be I’m just missing something, but if I am, I’ve missed it for a long, long time.

What has this to do with the procedural due process claim?

I’ll… I’ll say that my reason for doubting that it does is first there is… there are some laws that are so basic that they’re not written anywhere, not even in our cases.

What I used to say was one of them is you don’t ever have to have a hearing if there’s nothing to have a hearing about.

And here there’s nothing to have a hearing about as far as the statute is concerned.

These people concede they were convicted of sexually violent offenses.

To make the same point differently, give your clients all the procedures they want, every procedure in the world, and let’s suppose they prove they’re absolutely not dangerous.

Still, they were convicted of a sexually violent offense.

So it wasn’t the lack of procedure that caused the problem.

It was the fact that in your view the Constitution of the United States does not permit the State of Connecticut to turn these consequences upon being a sexually violent offender.

That’s a different argument, and the only kind of clause I’ve ever seen that would make that constitutionally impermissible is the Due Process Clause in its substantive sense.

And my point is not simply a technical point, for if you had focused on the argument, there would be a record that would answer questions like the Chief Justice’s.

You would have been forced to create a record that would have gone into all the State’s reasons and what empirical data there was, whether this was justified or not.

That’s a long question.

But I’d… it’s at the root of what’s bothering me.

Shelley R. Sadin:

I understand, Your Honor, and I think… let me see if I can respond to it sufficiently.

We are not asking… first of all, let me begin by saying the reason we don’t consider it to be a substantive due process analysis is that we’re not trying to expand the scope of the due process law to… to recognize some liberty that is not already recognized.

There is an interest in reputation if it is coupled with the kinds of restrictions that are imposed by this law.

People cannot… literally cannot… remain at liberty if they do not report what they look like and where they live to the State.

They will be prosecuted for a felony.

They cannot move without advising the State that they are doing so.

They cannot even leave the State for temporary periods, if they’re of… of a substantial period of time, without telling the State.

They literally cannot remain at liberty without performing these functions which are not required of any other citizen.

Stephen G. Breyer:

–in finding a liberty interest here.

After all, he has to give DNA.

He has to give his fingerprints.

That isn’t my problem.

I’ll give you all the liberty interest you want.

My… I don’t want to repeat what I said.

You took it in all right.

Right?

Shelley R. Sadin:

I think so.

Stephen G. Breyer:

Okay.

Shelley R. Sadin:

And let… let me try to address it now if I haven’t done it yet.

Even if there were… now, as I understand, Your Honor, you’re saying that… that even if there were narrower categories, if we were to limit this to people who were more dangerous and isn’t overbroad, there weren’t that… that kind of issue, there still is the problem because it is a procedural due process issue whether a particular person poses a present threat.

That isn’t something–

Ruth Bader Ginsburg:

I don’t think that’s the issue.

I think the issue is the State says here’s a list of people who were convicted of sex offenses.

Period.

You’re telling us that this particular person is no longer dangerous.

We say that’s not relevant to our scheme.

There’s only one thing that’s relevant: was he or she convicted?

If he or she was convicted, you have nothing under our scheme to be heard about because the only due process conviction… the only due process hearing that counts is the one that led up to the conviction.

That’s… that’s the point, that you’re saying my person is no longer dangerous.

The State’s answer is, under our scheme that’s totally irrelevant.

Ruth Bader Ginsburg:

The only question is, was this person convicted of a sex offense?

Shelley R. Sadin:

–But the problem with… the problem with that, Your Honor, is that the list does not just say that the person was convicted of a sex offense.

Ruth Bader Ginsburg:

So now suppose… that’s… what I’m trying to find out what is your real argument.

Suppose the list said, not sex offender register, but register of persons convicted… convicted sex offender list.

It said that.

And then it put the disclaimer that we are making no judgment about this person’s dangerousness right on that web page with the picture, right on the page with the individual’s picture, and then it gave the offense of conviction, the date, the time served, and that’s what was presented… with that legend in bold face… every time a user goes to get a picture sees that warning of what the State’s purpose is… would you still have a procedural due process claim?

Shelley R. Sadin:

I would if… I would if the current appearances and whereabouts of those people were also monitored for the purpose of posting them on a list whose stated purpose is to protect the public.

I would not have a problem if it is simply an Internet version of conviction records.

There is a fundamental difference between public records of conviction and the information–

Ruth Bader Ginsburg:

But then I don’t get the link with the hearing that you’re asking for.

That your address has… anytime somebody’s address is… his current address or place of employment… is it a government record?

They have a right to get that out?

I’m not… I’m not sure I’m following what is the hearing that you’re entitled to because the government supplies your current address.

Shelley R. Sadin:

–The hearing that we’re entitled to… and it isn’t… it really is more than just current address, although that is one aspect of it.

Monitoring address and photographs and posting it for the purpose of protecting the public does send a message that they’re dangerous.

But even if there… if there were to be a… a list that simply reflected past conviction records, that would not pose a problem.

It isn’t just the current address.

It is the combination of all of these things.

It is the context.

This is a Megan’s Law designed to protect the public from recidivist child molesters.

It is… it posts people whose current appearances and whereabouts are monitored, and the State tells the public that they are monitored on the website itself.

It says that we provide this information and we keep it as current as… as possible.

It is the Department of Public Safety, the State police, who post the information beneath their prominently displayed mission statement that it is their job in life to protect the public from… from crime.

William H. Rehnquist:

Well, Ms. Sadin, I don’t know if the FBI does it anymore.

I think they used to put out a 10 Most Wanted list of the most dangerous offenders.

Now, could one of the people on that list have demanded a hearing to say he didn’t belong on it?

[Laughter]

Shelley R. Sadin:

There’s a fundamental distinction between them because… think about it, Your Honor.

The… the 10 Most Wanted list is the result of an investigation that focuses on a particular individual and there are exigent circumstances.

It’s not just a roundup of… of the usual suspects.

Shelley R. Sadin:

It does focus on a particular person.

And that person does not have, by the way, the 10-year to life continued reporting requirements based on past conduct.

It will be processed–

William H. Rehnquist:

Well, no, but he… he’s going to have to be on the watch for police.

Shelley R. Sadin:

–Well, he may be but… but consider when that person, even if he committed a violent crime, is… is arrested and when a bond hearing is heard, the recidivism statistics for this kind of crime, this person’s past conviction record even, will not be the sole determinants and determine what… what allows him to be released.

It will be–

Antonin Scalia:

Well, he hasn’t… he hasn’t even been convicted of a crime.

Somebody who’s on that list.

I mean, it seems to me he’s in a much better position than… than your clients.

As far as anybody knows, he’s totally innocent, and the FBI puts him up there as the most wanted without a hearing.

Your clients have had a hearing.

They’ve been found to… to be guilty.

They’re… it seems to me they’re in much worse shape than somebody on the FBI list.

Shelley R. Sadin:

–The person on the FBI list has yet to have a hearing on whether or not he was the person who committed the crime, and presumably, Your Honor, if he were not and if there were false information that… that led to his arrest, he would have a claim for… for false arrest.

Antonin Scalia:

Exactly.

But just putting him… putting his face out there tells the public, does it not, this is a dangerous person you ought to be on the lookout for.

He hasn’t had any hearing on that.

Shelley R. Sadin:

Yes, but he will.

And there is at least some individual assessment, an individual investigation.

That hasn’t happened with respect to the people on my list.

Stephen G. Breyer:

Why do you have to have an individual… I would… if you were arguing the substantive due process argument, which it’s clear by now is what I think the right category is–

[Laughter]

Stephen G. Breyer:

–you’d have the person who was in Justice Souter’s example and he would come in and say, it violates the Constitution to apply this statute to me.

At least give me a hearing.

But that’s not who you’re representing.

You’re representing a class of people, including the… the 19 most dangerous sexual offenders in all of Connecticut.

And you’re saying as to them the Constitution requires a hearing and the State responds, what are you talking about?

First, they’re very dangerous.

Second, they’ve all been convicted of crimes.

Third, a hearing will be a waste of time as to them and simply delay the implementation of the statute and a lot of other arguments besides.

Stephen G. Breyer:

And anyway… all right.

I’m just making up all their arguments, but what is your response as to them?

Shelley R. Sadin:

Yes.

Your Honor has asked an even longer question, so let me try again.

Stephen G. Breyer:

Yes.

Shelley R. Sadin:

It… even… first of all, this is a very broad statute.

It does not cover just the most dangerous offenders.

Obviously it covers people who have been convicted of nonviolent crimes, been sentenced to probation, been sentenced to unconditional release.

It covers the teenagers about which there has been some discussion.

And by the way, some of those teenagers can get off and some of them–

Stephen G. Breyer:

I’m not being clear.

I know that.

I’m saying that if they were arguing substance, those people could make the argument on their own.

Don’t we have to consider you in terms of the 19 worst?

Shelley R. Sadin:

–Even with respect to… even with respect to the 19 worst, it still remains an individual determination whether a person poses a threat.

That person could have a–

David H. Souter:

No, but excuse me.

Are you claiming that there’s got to be a determination in advance before the person can be put on the register, or are you claiming that a person who is on the register who claims to be non-dangerous should be allowed a hearing to get off it?

Shelley R. Sadin:

–I’m saying… well, this is a… the registry is systematic.

It’s not as though it’s any surprise–

David H. Souter:

Never mind… what is your position?

Shelley R. Sadin:

–It is a–

David H. Souter:

Has there got to be a hearing in advance before the name goes on?

Shelley R. Sadin:

–There has to be a hearing in advance not before the person registers, but before the person is publicly… yes, before the person is publicly posted.

And that is true even with respect–

Ruth Bader Ginsburg:

With the burden on the government to… I want to get the full dimensions of your position.

The registry is all right, I gather.

There was no injunction against the registry.

The registry remains in place.

So you’re attacking only the notification.

Shelley R. Sadin:

–Yes.

Ruth Bader Ginsburg:

And your position on the notification is not simply that a person should have an opportunity to show that he or she should escape from this list, but that the government has the burden before it puts… posts anybody to show that that person is currently dangerous.

Is that your position?

Shelley R. Sadin:

No.

I am saying that there has to be notice that you will be posted and an opportunity to be heard on whether or not you belong to the very small class of people who deserve to be posted.

And again, we’re not… the reason–

Ruth Bader Ginsburg:

Well, let’s take the category of violent sex offenders.

They’re on the registry.

You don’t dispute that.

They’re there.

Everyone is on the registry.

Can that person, the most violent, automatically be posted?

Shelley R. Sadin:

–No.

And even under the Federal Megan’s Law… let me point out that even under the Federal Megan’s Law… that small category of people, sexually violent predators, are not allowed to… must… must have process before the government is allowed to monitor them every 90 days, as everyone on Connecticut’s registry is done.

There has to be a court finding that, in fact, those sexually violent predators fit within that category.

And even with respect–

Ruth Bader Ginsburg:

So no one… no one could be put on–

Anthony M. Kennedy:

–So what is the finding?

That they have to be likely to… to offend again?

Shelley R. Sadin:

–The… the finding is that they fit the definition of… there… there are a number of criteria and there are expert… expert testimony is required, and so there are criteria.

Anthony M. Kennedy:

Those people could be confined under Hendricks, and then the law serves no… no purpose at all.

Shelley R. Sadin:

But those… there is not that kind of confinement law in Connecticut, but there certainly is… there would have to be procedure in connection with that.

There was procedure in connection with Hendricks.

There has to be procedure in connection with the sexually violent predators who are… who are regulated in that way under the… under the Federal Megan’s Law.

And the point is this: Even with respect to those people who have committed violent crimes, there are treatment mechanisms.

This Court recognized in McKune against Lile that… that recidivism rates are dramatically reduced by people who receive treatment.

It is not difficult to provide these hearings.

There are dangerousness hearings done in every court in every State.

In Connecticut as well, there are dangerousness assessments conducted even within the context of this Megan’s Law, Connecticut’s Megan’s Law, in connection with exceptions and exemptions to registration.

Antonin Scalia:

Maybe the people of Connecticut don’t trust those dangerousness hearings.

Antonin Scalia:

Maybe the people of Connecticut say, I don’t want to have to rely upon… upon the guesses of some psychiatrist.

I do not want to live next to somebody who has been convicted of a sexual… sexually predatory offense, and I don’t care what the psychiatrists say.

Now, can… can the State of Connecticut accede to the wishes of the public who feel that way about it?

Shelley R. Sadin:

The State of Connecticut can accede to the wishes of the public to have conviction information.

The neighbor Your Honor talks about has a name.

He can be looked up.

The neighbor can see whether or not he has a prior conviction and can move if it wishes.

But the State of Connecticut does not have the right, without providing some individual process, some notice and an opportunity to be heard, to tell the neighbor this is a person who is dangerous.

We have the State police monitoring this person.

He must report to us every 90 days.

If he does not return his address notification, he will be arrested.

This is somebody we are watching.

This is somebody with respect to whom we are giving you this information.

William H. Rehnquist:

Well, what if… what if it were a conviction, Ms. Sadin, he had been convicted, and instead of this program, it specified that he would be on parole for 15 years with much the same restrictions?

Would that make it any different?

Shelley R. Sadin:

It presents a different question.

I mean, I don’t know whether or not the–

William H. Rehnquist:

But I… I know it’s a different question or I wouldn’t have asked you.

But what–

[Laughter]

William H. Rehnquist:

But what I… what I want to know is, would you treat it differently or would it be the same?

Shelley R. Sadin:

–If there has been process in connection with the parole determination, the answer is no.

That’s the fundamental point.

Even with respect to… this Court, again, has never used statistics even that… even that apply to some subset to determine that an individual poses a present threat, the kind of serious threat that the State of Connecticut repeatedly has said that is posed by the people on this list.

At… at oral argument below, General Blumenthal argued that this was crucial information which was necessary to protect the public from… from the kinds of dangers that… that occurred in the Megan Kanka case.

This is not just a… this is not a system of government name-calling.

It is a system of government-imposed stigma with requirements which preclude someone from remaining at liberty if they do not comply and if the information that… and the information that they then give up to the State, otherwise private, personal information, is posted on the Internet for the repeatedly-declared purpose of protecting the public from the people who are posted.

And again, the Federal Wetterling Act requires only that relevant information be released that is necessary to protect the public from a particular person.

That is why this is an individual–

John Paul Stevens:

How does the statute work with somebody who changes his name?

Shelley R. Sadin:

–Excuse me?

John Paul Stevens:

How does the statute work with someone who changes his name?

Shelley R. Sadin:

If you change your address, if you change your name, you must… you must report to the State.

John Paul Stevens:

If you change your address.

Shelley R. Sadin:

If you change your address.

John Paul Stevens:

But what if you change your name?

Shelley R. Sadin:

You… you… I think you would have to report that too.

I don’t remember whether there’s a particular provision, but there… there are provisions that you must… you must update your current address and information, and I… I presume name is… is the same.

John Paul Stevens:

And I… but if you change your appearance by shaving off your beard or something like that, do they require reporting of that?

Shelley R. Sadin:

It does actually, and you are required to submit to photographs whenever and wherever the State tells you to and at least every 5 years.

The answer is yes.

You cannot even leave the State for… for, you know, any… any substantial period of time without reporting… without reporting that.

And all of this is on pain of felony conviction.

That’s true even if the underlying conviction which requires you to report were a misdemeanor.

And one more… one final point.

The hearings that are… about which the Attorney General says there is no reliability, not only are they conducted under the Federal Wetterling Act and in connection with the exemptions and exceptions under Connecticut’s act, but there are a number of States with already streamlined, well-positioned systems who conduct these kinds of hearings and who provide process.

There has been no complaint that those are unworkable systems.

They are performed… the… the… less than half the States in this country have categorical notification systems like Connecticut’s.

Antonin Scalia:

Citizens may not trust them.

Citizens have seen too many of these hearings that result in the release of people who turn out to be dangerous.

Why… why do you insist that the State must tell citizens, we’re not going to give you this information because we have determined that the person is… is not dangerous and therefore you don’t have to worry about it?

Shelley R. Sadin:

But it isn’t a question of just giving the public truthful information.

The issue is telling the public that these are people who need to be monitored.

They are dangerous, not you may think they’re dangerous and they… and you may not, but they are.

That is why we are doing this to them.

That’s why we need to know what they look like and where they live at all times, and you need to know what they look like and where they live at all times.

That sends… that sends a very different message from they may be or they may not be.

That says that they are.

Ruth Bader Ginsburg:

May I ask you to turn a little attention to what is the plus?

Because it’s hard for me to understand when you take the registry, you say is the plus, and yet, you don’t challenge the registry and the district court doesn’t require any change whatever in the registry.

Ruth Bader Ginsburg:

So how can something that you say you’re not seeking to disturb or at least you’re not challenging the district court for not disturbing it is the plus?

Shelley R. Sadin:

Because they are integrally related.

Remember, my understanding of the stigma plus test is that it was meant to distinguish just plain defamation cases from those which really were Fourteenth Amendment claims based on something the government was doing to you.

The plus here is that the government requires you, on pain of felony conviction, to provide the personal information that then is published.

It is an integral system.

It creates a new class of citizen, a second class of citizen, which has different obligations from other citizens and from which information, personal and otherwise private information, is extracted and then posted.

Private citizens do not have to tell the State where they live at all times.

They don’t have to tell the State when they are leaving.

They don’t have to provide photographs repeatedly.

Ruth Bader Ginsburg:

Suppose we didn’t have the posting, we just had the register, and you had to tell those things that you ordinarily wouldn’t have to tell the State.

Shelley R. Sadin:

It would be a different argument.

That… that’s the plus.

William H. Rehnquist:

Thank you, Ms. Sadin.

General Blumenthal, you have 4 minutes remaining.

Richard Blumenthal:

Thank you, Mr. Chief Justice.

Following Justice Ginsburg’s question, there really is no plus here.

The point is the registry has not been challenged.

The registry existed before the posting, the publication, making this information available.

It exists now.

If the order were not in effect, even without the requirement in the law that there be Internet publication, an ordinary citizen could do what The Hartford Courant did and file an information… Freedom of Information request.

The Internet requirement is like a Freedom of Information form of law, and it is unrelated in the way that Paul v. Davis says it must be related to the supposed stigma.

Even if this Court were to find there’s a defamation… and by the way, Connecticut law has never recognized defamation by implication.

But even if there were, Paul v. Davis says that as a result of the action complained of, a right or status recognized previously under State law must be distinctly altered or extinguished.

In this instance, there was no pre-existing right not to register.

In fact, individuals… sex offenders were required to register, and that obligation continues to exist afterward.

And so what this Court would do by accepting the Second Circuit’s decision is, in effect, to constitutionalize tort law in the way that it has declined to do in Paul v. Davis, Siegert v. Gilley, where again it insisted on some causal link between the defamation and the supposed loss of right and status.

And that is utterly lacking here.

The supposed harms… there’s nothing in the record about housing, employment, any other harm that results from this supposed stigma, and the stigma itself, to go to the Chief Justice’s question, has to be false in order to constitute defamation.

This Court said so in Codd v. Velger, and that is plainly not true here because all of this information, particularly as to the convicted offense, is absolutely truthful and leaves to Connecticut’s citizens to make the judgment about whether or not it indicates dangerousness.

The disclaimer… to clear one other point… very specifically says not only that no assessment has been made, but also that the publication or inclusion of this individual on the website and on the registry is not to be deemed a judgment or a conclusion that this person is dangerous.

Richard Blumenthal:

There’s a specific disclaimer as to dangerousness.

But even without it, we would contend there’s no stigma because all of this information is very simply public record information, and under Siegert v. Gilley particularly, there is no sufficient link between the supposed stigma and any loss of right or status.

There simply is no plus here as this Court has interpreted it to exist and must exist under the standard that this Court has set forth.

We would respectfully submit that at the very least, the plus, or the loss of right or change of status must arise out of the same action or flow from it in some way.

And here plainly the information that’s conveyed accurately and truthfully on the registry does not in any way cause the registration.

It does not result from the registration.

The registration continues to exist now and would continue to exist even after the Internet is taken off… is… come down because of the court order.

So we respectfully submit that the court should be reversed.

Thank you.

William H. Rehnquist:

Thank you, General Blumenthal.

The case is submitted.