Doe v. O'CONNOR

Attorney for Appellant

Kenneth J. Falk
Indianapolis, IN

Attorneys for Appellee

Steve Carter
Attorney General of Indiana
Thomas M. Fisher
Special Counsel
Doug Webber
Deputy Attorney General
Indianapolis, IN
Attorneys for Catherine O’Connor

John Feighner
Fort Wayne, IN
Attorney for James A. Herman

IN THE
INDIANA SUPREME COURT

JOHN DOE, on his own behalf and on behalf of a class of those similarly
situated,
Appellants (Plaintiffs below),

v.

CATHERINE O’CONNOR, in her official capacity as Director of the INDIANA
CRIMINAL JUSTICE INSTITUTE and
JAMES A. HERMAN, in his official capacity as SHERIFF OF ALLEN COUNTY, on
his own behalf and on behalf of those similarly situated,
Appellees (Defendants below).

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APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Patrick L. McCarty, Judge
Cause No. 49D03-0211-PL-001935

ON PETITION TO TRANSFER

June 26, 2003

SULLIVAN, Justice.

The Legislature requires photographs and home addresses of people who
have been convicted of sex offenses be posted on the Internet. John Doe, a
man previously convicted of a sex offense who has completed his sentence,
contends that he has a constitutional right to a court hearing on whether
he poses any future danger to society before his picture and address are
posted. Because the material is posted based on the fact of previous
conviction, not the fact of current (or future) dangerousness, Doe has no
constitutional right to the hearing he seeks.

Background

In 1994, the Indiana General Assembly enacted a sex offender registry
law. Ind. Code § 5-2-12 et seq. Under this law, individuals convicted of
predicate sex and violent offenses specified by the law must register with
local law enforcement authorities. Ind. Code § 5-2-12-5 (superseded Jan.
1, 2003).[1] The law requires the Indiana Criminal Justice Institute
(“CJI”) to maintain and publish for public dissemination in hard copy and
(since 1996) on the Internet, a directory of the names, aliases, dates of
birth, physical description, county of residence, and description of
offense of those. This directory is known as the Indiana Sex and Violent
Offender Registry. Ind. Code § 5-2-12-11 (superseded Jan. 1, 2003); Ind.
Code § 5-2-6-3. We will refer to it in this opinion as the “1994
Registry.”

The General Assembly made several changes to the sex and violent
offender registry law, effective January 1, 2003. The directory is now
called the Indiana Sex and Violent Offender Directory. Ind. Code § 5-2-6-
3(10). We will refer to it as the “2003 Directory.” Relevant to this
case, the new law requires individuals subject to its registration
requirements to provide a recent photograph of themselves when registering
and re-registering. Ind. Code § 5-2-12-6(4). They must re-register every
year and update registries if they move or change their names due to
marriage. Ind. Code § 5-2-12-8. Finally, under the new version, the CJI
is required to publish the home addresses of the registrants in addition to
information already published. Ind. Code § 5-2-6-3.5(c).

A second new statute requires Indiana county sheriffs to publish the
home addresses and photographs of convicted sex and violent offenders in a
separate registry. Ind. Code § 36-2-13-5.5. We will refer to it as the
“Sheriffs’ Registry.” The purpose of the Sheriffs’ Registry is “to inform
the general public about the identity, location, and appearance of every
sex offender residing within Indiana. The web site must provide
information regarding each sex offender, organized by county of residence.”
Id. § 36-2-13-5.5(a). Both the 2003 Directory and the Sheriffs’ Registry
will be published on the Internet and will contain the photographs and
addresses as well as other information about convicted sex offenders
currently published by CJI in the 1994 Directory. Id. § 36-2-13-5.5.
Included with this information is a notice using the following or similar
language:

Based on information submitted to the criminal justice institute, a
person whose name appears in this directory has been convicted of a
sex offense or a violent offense or has been adjudicated a delinquent
child for an act that would be a sex offense or violent offense if
committed by an adult.

Ind. Code § 5-2-6-3.5(d). There is no apparent limit to the duration
during which a registrant’s information will be posted in the 2003
Directory and the Sheriffs’ Registry. In fact, the website states:
“Information about an offender remains in the directory indefinitely or
until the Institute receives a copy of the individual’s death certificate
or court notification that the person’s conviction has been overturned.”
Indiana Sex and Violent Offender Directory, at
http://www.state.in.us/serv/cji_sor (last visited June 26, 2003).

The 2003 Directory and the Sheriffs’ Registry are part of a national
effort to increase public safety by identifying convicted sex and violent
offenders. In 1994, Congress passed the Jacob Wetterling Crimes Against
Children and Sexually Violent Offender Registration Program (Title XVII of
the Violent Crime Control and Law Enforcement Act of 1994, codified at 42
U.S.C. § 14071). The Wetterling Act requires states to create registries
of offenders convicted of sexually violent offenses or crimes against
children, although it appears to permit such registries to be based on a
risk assessment. The Act requires offenders to verify their addresses
annually for a period of ten years and for life for sexually violent
predators. 42 U.S.C. § 14071(b)(6). States that do not establish
compliant registration programs are subject to a ten percent reduction of
certain federal grants otherwise available for a variety of crime
prevention and interdiction programs. 42 U.S.C. § 14071(g)(2). Indiana
currently receives approximately $10 million per year from these grant
programs, some of which is used to fund judicial initiatives.

Petitioner John Doe has presented the Court with an affidavit to the
following effect: that he resides in Allen County and was convicted of an
offense listed in Ind. Code § 5-2-12-4(a) after fondling a minor female
relative on an isolated occasion; that he received a suspended sentence for
the offense; that he has not been convicted of other offenses or committed
any other offenses; and that he does not believe he is likely to re-offend,
nor does he believe he is a threat to the community. Because of his
conviction, he was listed in the 1994 Registry prior to January 1, 2003,
and since then has been listed in the 2003 Directory and the Sheriffs’
Registry.

Doe says that he resides with his wife and children in Allen County,
in a neighborhood where he does not believe his past is known; that his
children attend schools where his past is not known; and that he is
concerned about the ramifications of dissemination of his photograph and
home address. He seeks an opportunity to challenge the inclusion of his
information in the 2003 Directory and the Sheriffs’ Registry by
demonstrating that he is neither dangerous nor likely to re-offend.

Doe sought a preliminary injunction to enjoin the addition of former
offenders’ home addresses and photographs to the 2003 Directory and the
Sheriffs’ Registry. The trial court denied the preliminary injunction. He
appealed that decision, asking this Court to accept jurisdiction under Ind.
Appellate Rule 56(A) and to stay the implementation of the 2003 Directory
and the Sheriffs’ Registry until we rule on his claims. We accepted
jurisdiction and granted the temporary stay requested.

Discussion

Doe does not contend that the posting of information about convicted
sex offenders on the Internet in general is unconstitutional. His argument
is much more modest. He claims instead that before his photograph and home
address are posted on the 2003 Directory and the Sheriffs’ Registry, he has
a constitutional right to a hearing on whether he poses any danger to
society.

Doe initially claimed that the posting of his photograph and home
address to the 2003 Directory and the Sheriffs’ Registry violated
provisions of both the United States and Indiana Constitutions. While this
appeal has been pending, the United States Supreme Court decided
Connecticut Dep’t of Pub. Safety v. Doe, 123 S. Ct. 1160 (2003), which
upheld the constitutionality of a similar registry statute against a
similar claim.[2] As such, Doe has withdrawn his federal constitutional
challenge. (Appellants’ Notice of Supplemental Authority and Notice of
Withdrawing of Portion of Argument at 1, ¶ 2.)

I

Doe first contends that the statutory scheme at issue violates Art.
I, § 12, of the Indiana Constitution, the first sentence of which provides:
“All courts shall be open; and every person, for injury done to him in his
person, property, or reputation, shall have remedy by due course of law.”
(emphasis added). His claim is that his constitutional right to due
course of law with respect to his reputation would be violated by the
posting of his photograph and home address on the web-based 2003 Directory
and Sheriffs’ Registry unless he is first provided a hearing as to whether
he poses any danger to society.

We have previously held that we will employ the same methodology when
analyzing a claimed denial of procedural due process violation of the Due
Course of Law Clause of Art. I, § 12, as the Supreme Court as used to
analyze claimed violations of the Due Process Clause. McIntosh v. Melroe
Co., 729 N.E.2d 972, 976 (Ind. 2000); Indiana High Sch. Athletic Ass’n,
Inc. v. Carlberg, 694 N.E.2d 222, 241 (Ind. 1997). Although the recent
Connecticut Dep’t of Pub. Safety case does not control our analysis, we
employ a similar method of analysis and reach a similar result.

In the Connecticut Dep’t of Pub. Safety case, the challenged registry
was also to be posted on the Internet and made publicly available in
certain state offices.[3] The Connecticut statute required the covered
offenders information to provide their names, addresses, photographs, and
DNA samples. A convicted sex offender covered by the law challenged it as
a violation of his rights under the Due Process Clause of the Fourteenth
Amendment by depriving him of a liberty interest – specifically, injuring
his reputation – without notice or a meaningful opportunity to be heard.
Connecticut Dep’t of Pub. Safety, 123 S. Ct. at 1163-64. While the Court
had held in Paul v. Davis, 424 U.S. 693, 712 (1976), that injury to
reputation did not constitute deprivation of a liberty interest, it found
it unnecessary to even address whether any deprivation of a liberty
interest had occurred. Connecticut Dep’t of Pub. Safety, 123 S. Ct. at
1164. This was because, the Court said, Connecticut expressly based its
registry requirement on the fact of the previous conviction, not the fact
of current (or future) dangerousness. Id. “[D]ue process d[id] not
entitle [the offender] to a hearing to establish a fact that is not
material under the Connecticut statute.” Id. Rather, the registration
requirements were based on conviction alone—“a fact that a convicted
offender has already had a procedurally safeguarded opportunity to
contest.” Id.

Doe argues that because Art. I, § 12, expressly includes reputation as
an interest entitled to protection by the due course of law, the Indiana
Constitution recognizes an interest here even though Paul v. Davis holds
that there is no counterpart federal right. But we see the issue much the
same way the Supreme Court did in Connecticut Dep’t of Pub. Safety, that
is, even if Doe is at risk of deprivation of a constitutionally protected
interest, due course of law does not entitle him to a hearing to establish
a fact – current or future dangerousness – that is not material under the
2003 Directory and the Sheriffs’ Registry statutes. To paraphrase the
Supreme Court, even if Doe could prove that he is not likely to be
currently dangerous, the Legislature has decided that the registry
information of all sex offenders – currently dangerous or not – must be
publicly disclosed. Connecticut Dep’t of Pub. Safety, 123 S.Ct. at 1164.
Doe is not entitled to a hearing under Art. I, § 12.

Doe accurately points out that this statute can have extraordinarily
harsh consequences, perhaps consequences not intended by the Legislature.
For example, an 18-year old young man who has sexual intercourse with his
15-year, 11 month old girlfriend is guilty of sexual misconduct with a
minor. See Ind. Code § 35-42-4-9. This young man is subject to the annual
registration requirements of the statute for ten years (Ind. Code § 5-2-12-
13(a)) and will have his photograph and current address posted on the
Internet for the rest of his life. Ind. Code § 5-2-6-3.5(a) (2003) (“The
sex and violent offender directory . . . must include the names of each
offender who is or has been required to register under IC 5-2-12.”)
(emphasis added). Perhaps sex offenders of this type should have an
opportunity to make their case that they pose no danger to society but that
is a matter for legislative determination.

II

Doe also contends that he has a privacy right protected by Art. I,
§1,[4] in keeping photographs and current addresses private. We have never
had occasion to examine the extent to which an ex-offender has the rights
asserted but a number of our sister states have addressed similar privacy
issues under constitutional provisions with very similar language as our
Art. I, § 1, and have rejected these claims.[5]

Most notably, in State v. Williams, 728 N.E.2d 342 (Ohio 2000), the
Supreme Court of Ohio addressed whether a reporting statute requiring the
offender to provide a current home address, the name and address of the
offender’s employer, a photograph, and any other information required by
the Federal Bureau of Investigation, violated privacy rights under § 1,
Art. I of Ohio’s Constitution.[6] The court determined that § 1, Art. I,
was “a statement of fundamental ideals upon which a limited government is
created.” Id. at 354. As such, it was not a self-executing provision but
rather required enacting provisions to indicate how these rights are
subject to judicial enforcement. Id. It further noted that even if § 1,
Art. I, was self-executing, the legislation would be upheld since the
registration requirements were reasonable legislation addressing legitimate
governmental interests without a detrimental effect to individual
constitutional rights. Id. at 355. Since privacy rights under Ohio’s § 1,
Art. I, run parallel to those guaranteed by the Fourteenth Amendment to the
U.S. Constitution, the rights were deemed not to be absolute and would
instead yield when required by public necessity. Id. at 355-56. Finding
that the information at issue was public record, the court found no
infringement of an offender’s right to privacy. Id. at 356. It likewise
found no infringement of an offender’s right to acquire and possess
property, right to pursue an occupation, nor right to a favorable
reputation. Id. at 356-57.

With language virtually identical to the Ohio Constitution, the
California Constitution provides that “[a]ll people are by nature free and
independent and have inalienable rights. Among these are enjoying and
defending life and liberty, acquiring, possessing, and protecting property,
and pursuing and obtaining safety, happiness, and privacy.” Cal. Const.
art. I, § 1. California courts have determined that these rights are not
absolute and will yield when demanded by the public welfare and common
good. See Nat’l Org. for the Reform of Marijuana Laws v. Gain, 161 Cal.
Rptr. 181, 187 (Cal. Ct. App. 1979); In re Moffett, 64 P.2d 1190, 1194
(Cal. Ct. App. 1937).

A similar provision of the New Mexico Constitution provides that “all
persons are born equally free, and have certain natural, inherent and
inalienable rights, among which are the rights of enjoying and defending
life and liberty, of acquiring, possessing and protecting property, and of
seeking and obtaining safety and happiness.” N.M. Const. art. II, § 4.
New Mexico courts have determined that although its citizens enjoy rights
to life, liberty, property, and happiness, Art. II, § 4, merely makes vague
references to these rights and enabling legislation is required before
judicial enforcement of these rights is warranted. See e.g., Blea v. City
of Espanola, 870 P.2d 755, 759 (N.M. Ct. App. 1994), cert. denied, 871 P.2d
984 (N.M. 1994).

Similarly, Chapter I, Art. I, of the Vermont Constitution provides
that “all men are born equally free and independent, and have certain
natural, inherent, and unalienable rights, amongst which are the enjoying
and defending life and liberty, acquiring, possessing and protecting
property, and pursuing and obtaining happiness and safety.” The Supreme
Court of Vermont has determined that this provision does not create
enforceable rights, but rather “expresses fundamental, general principles .
. . that infuse the rights of individuals and powers of government
specified elsewhere in the constitution.” Shields v. Gerhart, 658 A.2d
924, 928 (Vt. 1995). The Supreme Court of Vermont has never declared a
statute unconstitutional solely because it violated Chapter I, Art. I of
the Vermont Constitution. See Benning v. State, 641 A.2d 757, 759 (Vt.
1994); see also State v. Carruth, 81 A. 922, 923 (Vt. 1911) (“Many things
contained in the bill of rights found in our State Constitution ‘are not,
and from the very nature of the case cannot be, so certain and definite in
character as to form rules for judicial decisions; and they are declared
rather as guides to the legislative judgment than as marking an absolute
limitation of power.’”) (citations omitted).

Other states also have construed constitutional provisions similar in
wording to Art. I, §1, of the Indiana Constitution not to provide a sole
basis for challenging legislation since the language is not so complete as
to provide courts with a standard that could be routinely and uniformly
applied. See e.g., Sheppard v. Dowling, 28 So. 791, 795 (Ala. 1899); Cogan
v. State Dep’t of Revenue, 657 P.2d 396, 398 (Alaska 1983); Nelson v.
Boundary County, 706 P.2d 94, 100 (Idaho Ct. App. 1985); Atteberry v.
State, 438 P.2d 789, 791 (Nev. 1968) (challenging the constitutionality of
a registry of convicted persons, which required disclosure of the convicted
person’s name; detailed physical description; crime committed; name under
which convicted; details of sentence served; address; type of structure
(apartment, hotel, etc.); length of time in residence there; etc.); Sepe v.
Daneker, 68 A.2d 101, 105 (R.I. 1949).

We need not decide whether Art. I, § 1, presents any justiciable
issues here because Doe does not press a substantive claim. Rather, he
says the question is “whether the former offenders have a privacy interest
in the government not disclosing personal information about them and
notifying the world that they are dangerous sex offenders, without first
affording them the opportunity to demonstrate that they are not.”
(Appellants’ Reply Br. at 12.) [7] This procedural claim is precisely the
issue analyzed above in part I. For the same reasons why Doe has no right
to a dangerousness hearing under Art. I, § 23, he also has no right to such
a hearing under Art. I, § 1.

Conclusion

Having previously granted transfer pursuant to Indiana Appellate Rule
56(A), we now dissolve the stay previously entered in this matter and
affirm the judgment of the trial court.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
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[1] The predicate offenses that result in a duty to register and ultimate
publication in the registry are: rape (Ind. Code § 35-42-4-1); criminal
deviate conduct (Ind. Code § 35-42-4-2); child molesting (Ind. Code § 35-42-
4-3); vicarious sexual gratification (Ind. Code § 35-42-4-5); child
solicitation (Ind. Code § 35-42-4-6); child seduction (Ind. Code § 35-42-4-
7); sexual misconduct with a minor (Ind. Code § 35-42-4-9); incest (Ind.
Code § 35-46-1-3); sexual battery (Ind. Code § 35-42-4-8); kidnapping if
the victim is under 18 (Ind. Code § 35-42-3-2); criminal confinement if the
victim is under 18 (Ind. Code § 35-42-3-3); attempt or conspiracy to engage
in any of the forgoing; and crimes in other jurisdictions that are
substantially similar to those above. Ind. Code § 5-2-12-4(a).
[2] Connecticut Dep’t of Pub. Safety, which rejected a claim that
Connecticut’s sexual offender registry violated the Due Process Clause, 123
S. Ct. at 1162, was decided at the same time as the Court rejected a claim
that Alaska’s sexual offender registry law violated the Ex Post Facto
Clause. Smith v. Doe, 123 S.Ct. 1140, 1154 (2003). The Indiana Court of
Appeals has rejected a claim that the 1994 Directory statute violates the
Ex Post Facto Clause and no similar claim is made in this case. Spencer v.
O’Connor, 707 N.E.2d 1039, 1046 (Ind. Ct. App. 1999), trans. denied, 726
N.E.2d 305 (Ind. 1999) (table).
[3] The Connecticut statute, however, allowed certain sex offenders to
avoid the registration requirements if “[the] offense was unconsented
sexual contact,” or “sexual intercourse with a minor aged between 13 and 16
while the offender was more than two years older than the minor, provided
the offender was under age 19 at the time of the offense.” Id. at 1165
(Souter, J., concurring) (citations omitted). There were even
circumstances that permitted a restriction of the dissemination of registry
information. Id.

[4] Art. I, § 1 states:
WE DECLARE, that all people are created equal; that they are endowed
by their CREATOR with certain inalienable rights; that among these are
life, liberty, and the pursuit of happiness; that all power is
inherent in the people; and that all free governments are, and of
right ought to be, founded on their authority, and instituted for
their peace, safety, and well-being. For the advancement of these
ends, the people have at all times, an indefeasible right to alter and
reform their government.
Ind. Const. art. I, § 1.

[5] We have rarely addressed Art. I, §1, at all but at least two cases
have done so. See Dep't of Fin. Insts. v. Holt, 231 Ind. 293, 301-02, 108
N.E.2d 629, 633-34 (Ind. 1952); Kirtley v. State, 227 Ind. 175, 181-83, 84
N.E.2d 712, 714-15 (Ind. 1949).

[6] The constitutional provision in question provided that “all men are,
by nature, free and independent, and have certain inalienable rights, among
which are those of enjoying and defending life and liberty, acquiring,
possessing and protecting property, and seeking and obtaining happiness and
safety.” Ohio Const. § 1, Art. I.

[7] Cf. Connecticut Dep’t of Pub. Safety, 123 S. Ct. at 1165
(“[R]espondent expressly disavows any reliance on the substantive component
of the Fourteenth Amendment’s protections.”).