RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Fullmer v. Michigan Dep’t Nos. 02-1731/1864 ELECTRONIC CITATION: 2004 FED App. 0057P (6th Cir.) of State Police, et al. File Name: 04a0057p.06 Lansing, Michigan, for Appellant. Thomas Lazar, Bingham Farms, Michigan, for Appellee. ON BRIEF: Margaret A. UNITED STATES COURT OF APPEALS Nelson, OFFICE OF THE ATTORNEY GENERAL, TORT FOR THE SIXTH CIRCUIT DEFENSE DIVISION, Lansing, Michigan, for Appellant. _________________ Thomas Lazar, Bingham Farms, Michigan, for Appellee. _________________ DANIEL S. FULLMER, X Plaintiff-Appellee, - OPINION - _________________ - Nos. 02-1731/1864 v. - MARTHA CRAIG DAUGHTREY, Circuit Judge. This > appeal arises from a successful challenge to the , MICHIGAN DEPARTMENT OF constitutionality of the public registry provision of - STATE POLICE, and STEPHEN Michigan’s Sex Offenders Registration Act, MICH. COMP. - LAWS §§ 28.721-732 (2003), which was held to be invalid by MADDEN , in his official - the district court in a judgment that included an injunction capacity as Director, - against its immediate enforcement. Because we conclude that Defendants-Appellants. - the act creating the registry meets the due process standards - for such programs recently announced by the Supreme Court N in Connecticut Department of Public Safety v. Doe, 538 Appeal from the United States District Court U.S. 1 (2003), we reverse the district court’s judgment and for the Eastern District of Michigan at Detroit. vacate the related injunction. No. 01-73319—Victoria A. Roberts, District Judge. FACTUAL AND PROCEDURAL BACKGROUND Argued: December 2, 2003 Plaintiff Daniel Fullmer was convicted of an offense Decided and Filed: February 25, 2004 requiring registration as a “sex offender” under Michigan’s Sex Offenders Registration Act, but one committed under Before: SILER, DAUGHTREY, and GIBBONS, Circuit circumstances that, he contends, do not establish “future Judges. dangerousness.” Nevertheless, as a registered sex offender he is required, among other obligations, to submit to state _________________ officials information concerning his whereabouts and update the information every 90 days. He must also submit to being COUNSEL photographed at regular intervals, provide a blood sample for DNA analysis, and notify authorities of any address change ARGUED: Margaret A. Nelson, OFFICE OF THE within 10 days of such a change. He will remain in the ATTORNEY GENERAL, TORT DEFENSE DIVISION, registry for 25 years, long after the end of any probation,
1 Nos. 02-1731/1864 Fullmer v. Michigan Dep’t 3 4 Fullmer v. Michigan Dep’t Nos. 02-1731/1864 of State Police, et al. of State Police, et al.
parole, or other form of release. The act provides for registry. The defendants now appeal the district court’s registries to be used both for law enforcement purposes and judgment. for public dissemination. Local police departments are required to make the registry information available on the DISCUSSION internet. As a result, by using the Michigan State Department of Police website, anyone with internet access can search for The crux of the plaintiff’s due process argument is that the convicted sex offenders by name, age, or zip code and retrieve registration and public disclosure aspects of the act deprive an offender’s name, sex, height, weight, race, eye color, date him of a constitutionally protected liberty interest “by of birth, address, offense, and any known aliases. See stigmatizing him as a presently dangerous sex offender and Michigan Public Sex Offender Registry (PSOR) Inquiry imposing intrusive reporting obligations, which altered his (2002), at http://www.mipsor.state.mi.us. legal status, without giving him notice and an opportunity to be heard on whether he [is a threat to] the public safety.” In the district court, Fullmer claimed that the requirements Under well-settled precedent, however, damage to reputation of the act and the attendant penalties to which he is subject if alone does not implicate a protected liberty or property he fails to meet them infringe upon his liberty and property interest. See Paul v. Davis, 424 U.S. 693, 701 (1976); interests arising out of the First, Fourth, Ninth, and Cutshall v. Sundquist, 193 F.3d 466, 479 (6th Cir. 1999). Fourteenth Amendments to the United States Constitution and Due process analysis is triggered only where the “stigma of violate the Due Process Clause by changing his legal status damage to a reputation is coupled with another interest, such and requiring him to register as a sex offender without as employment,” a requirement that has come to be known as providing him a hearing or conducting an assessment of his the “stigma-plus” test. Id. The district court’s decision to individual dangerousness or potential threat to the invalidate the Michigan statute was based on its conclusion community. He filed suit against the Michigan State that Fullmer met this test, relying principally upon the Department of Police and Lt. Col. Stephen Madden in his analysis in Doe v. Department of Public Safety, 271 F.3d 38 capacity as director of the State Police, challenging the (2d Cir. 2001), in which the Second Circuit found that constitutionality of the Michigan Sex Offender Registration Connecticut’s sex offender registry deprived sex offenders of Act, particularly the provision permitting public a liberty interest and violated due process. dissemination of information about registered offenders. The district court issued a declaratory judgment in Fullmer’s Since the entry of judgment in the district court, however, favor, holding that the act constitutes an unconstitutional the Supreme Court has overturned the Second Circuit denial of due process because it does not provide registrants decision, making an important distinction between the with notice or an opportunity to be heard on the issue of their particular type of registry utilized under the Connecticut dangerousness. The court also enjoined enforcement of the statute and other sex offender registries. See Conn. Dep't of act pending the addition of adequate procedural safeguards. Pub. Safety v. Doe, 538 U.S. 17 (2003). That distinction Later, in response to the defendants’ motion to stay, the court involves the structure of the Connecticut registry, which is modified the declaratory judgment and injunction, allowing based on the fact of the registrant’s conviction rather than his the defendants to resume the requirements of the registry for or her current “dangerousness.” The Supreme Court held law enforcement purposes, but not to continue the public that, because the basis of the registration requirement is the fact of conviction alone, dangerousness and the opportunity Nos. 02-1731/1864 Fullmer v. Michigan Dep’t 5 6 Fullmer v. Michigan Dep’t Nos. 02-1731/1864 of State Police, et al. of State Police, et al.
to be heard on the issue of dangerousness are simply not certain date are listed, without exception. Moreover, there is material issues. See id. at 7 - 8. nothing on the website to indicate that the state has made an individual determination as to a registrant’s dangerousness. In reaching the conclusion that due process was not Hence, the Michigan registry serves the same purpose and has implicated by the Connecticut statute, the Supreme Court the same effect as its Connecticut counterpart. As the Court noted the following disclaimer on the registry’s website indicated in Connecticut Department of Public Safety v.
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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Fullmer v. Michigan Dep’t Nos. 02-1731/1864 ELECTRONIC CITATION: 2004 FED App. 0057P (6th Cir.) of State Police, et al. File Name: 04a0057p.06 Lansing, Michigan, for Appellant. Thomas Lazar, Bingham Farms, Michigan, for Appellee. ON BRIEF: Margaret A. UNITED STATES COURT OF APPEALS Nelson, OFFICE OF THE ATTORNEY GENERAL, TORT FOR THE SIXTH CIRCUIT DEFENSE DIVISION, Lansing, Michigan, for Appellant. _________________ Thomas Lazar, Bingham Farms, Michigan, for Appellee. _________________ DANIEL S. FULLMER, X Plaintiff-Appellee, - OPINION - _________________ - Nos. 02-1731/1864 v. - MARTHA CRAIG DAUGHTREY, Circuit Judge. This > appeal arises from a successful challenge to the , MICHIGAN DEPARTMENT OF constitutionality of the public registry provision of - STATE POLICE, and STEPHEN Michigan’s Sex Offenders Registration Act, MICH. COMP. - LAWS §§ 28.721-732 (2003), which was held to be invalid by MADDEN , in his official - the district court in a judgment that included an injunction capacity as Director, - against its immediate enforcement. Because we conclude that Defendants-Appellants. - the act creating the registry meets the due process standards - for such programs recently announced by the Supreme Court N in Connecticut Department of Public Safety v. Doe, 538 Appeal from the United States District Court U.S. 1 (2003), we reverse the district court’s judgment and for the Eastern District of Michigan at Detroit. vacate the related injunction. No. 01-73319—Victoria A. Roberts, District Judge. FACTUAL AND PROCEDURAL BACKGROUND Argued: December 2, 2003 Plaintiff Daniel Fullmer was convicted of an offense Decided and Filed: February 25, 2004 requiring registration as a “sex offender” under Michigan’s Sex Offenders Registration Act, but one committed under Before: SILER, DAUGHTREY, and GIBBONS, Circuit circumstances that, he contends, do not establish “future Judges. dangerousness.” Nevertheless, as a registered sex offender he is required, among other obligations, to submit to state _________________ officials information concerning his whereabouts and update the information every 90 days. He must also submit to being COUNSEL photographed at regular intervals, provide a blood sample for DNA analysis, and notify authorities of any address change ARGUED: Margaret A. Nelson, OFFICE OF THE within 10 days of such a change. He will remain in the ATTORNEY GENERAL, TORT DEFENSE DIVISION, registry for 25 years, long after the end of any probation,
1 Nos. 02-1731/1864 Fullmer v. Michigan Dep’t 3 4 Fullmer v. Michigan Dep’t Nos. 02-1731/1864 of State Police, et al. of State Police, et al.
parole, or other form of release. The act provides for registry. The defendants now appeal the district court’s registries to be used both for law enforcement purposes and judgment. for public dissemination. Local police departments are required to make the registry information available on the DISCUSSION internet. As a result, by using the Michigan State Department of Police website, anyone with internet access can search for The crux of the plaintiff’s due process argument is that the convicted sex offenders by name, age, or zip code and retrieve registration and public disclosure aspects of the act deprive an offender’s name, sex, height, weight, race, eye color, date him of a constitutionally protected liberty interest “by of birth, address, offense, and any known aliases. See stigmatizing him as a presently dangerous sex offender and Michigan Public Sex Offender Registry (PSOR) Inquiry imposing intrusive reporting obligations, which altered his (2002), at http://www.mipsor.state.mi.us. legal status, without giving him notice and an opportunity to be heard on whether he [is a threat to] the public safety.” In the district court, Fullmer claimed that the requirements Under well-settled precedent, however, damage to reputation of the act and the attendant penalties to which he is subject if alone does not implicate a protected liberty or property he fails to meet them infringe upon his liberty and property interest. See Paul v. Davis, 424 U.S. 693, 701 (1976); interests arising out of the First, Fourth, Ninth, and Cutshall v. Sundquist, 193 F.3d 466, 479 (6th Cir. 1999). Fourteenth Amendments to the United States Constitution and Due process analysis is triggered only where the “stigma of violate the Due Process Clause by changing his legal status damage to a reputation is coupled with another interest, such and requiring him to register as a sex offender without as employment,” a requirement that has come to be known as providing him a hearing or conducting an assessment of his the “stigma-plus” test. Id. The district court’s decision to individual dangerousness or potential threat to the invalidate the Michigan statute was based on its conclusion community. He filed suit against the Michigan State that Fullmer met this test, relying principally upon the Department of Police and Lt. Col. Stephen Madden in his analysis in Doe v. Department of Public Safety, 271 F.3d 38 capacity as director of the State Police, challenging the (2d Cir. 2001), in which the Second Circuit found that constitutionality of the Michigan Sex Offender Registration Connecticut’s sex offender registry deprived sex offenders of Act, particularly the provision permitting public a liberty interest and violated due process. dissemination of information about registered offenders. The district court issued a declaratory judgment in Fullmer’s Since the entry of judgment in the district court, however, favor, holding that the act constitutes an unconstitutional the Supreme Court has overturned the Second Circuit denial of due process because it does not provide registrants decision, making an important distinction between the with notice or an opportunity to be heard on the issue of their particular type of registry utilized under the Connecticut dangerousness. The court also enjoined enforcement of the statute and other sex offender registries. See Conn. Dep't of act pending the addition of adequate procedural safeguards. Pub. Safety v. Doe, 538 U.S. 17 (2003). That distinction Later, in response to the defendants’ motion to stay, the court involves the structure of the Connecticut registry, which is modified the declaratory judgment and injunction, allowing based on the fact of the registrant’s conviction rather than his the defendants to resume the requirements of the registry for or her current “dangerousness.” The Supreme Court held law enforcement purposes, but not to continue the public that, because the basis of the registration requirement is the fact of conviction alone, dangerousness and the opportunity Nos. 02-1731/1864 Fullmer v. Michigan Dep’t 5 6 Fullmer v. Michigan Dep’t Nos. 02-1731/1864 of State Police, et al. of State Police, et al.
to be heard on the issue of dangerousness are simply not certain date are listed, without exception. Moreover, there is material issues. See id. at 7 - 8. nothing on the website to indicate that the state has made an individual determination as to a registrant’s dangerousness. In reaching the conclusion that due process was not Hence, the Michigan registry serves the same purpose and has implicated by the Connecticut statute, the Supreme Court the same effect as its Connecticut counterpart. As the Court noted the following disclaimer on the registry’s website indicated in Connecticut Department of Public Safety v. Doe, makes clear that no determination of registrants’ the state “has decided that the registry information of all sex dangerousness has been made, explaining that “[i]ndividuals offenders – currently dangerous or not – must be publicly included within the registry are included solely by virtue of disclosed” and that “states are not barred by principles of their conviction record and state law.” See id. at 7 (emphasis ‘procedural due process’ from drawing such classifications.” in original). Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. at 11 (emphasis in original). The Court left open the possibility that a plaintiff Similarly, Michigan’s registry is based solely upon the fact might be able to show that a registry of this kind violates of an offender’s conviction; the registry website does not substantive due process, but because the plaintiff in this case, indicate that a determination has been made concerning the like the plaintiff in Doe, did not rely on substantive due dangerousness of those listed in the registry, but only that the process as a ground for relief, that issue is not before us at this registrants are convicted sex offenders. See Michigan Public time. Sex Offender Registry (PSOR) Inquiry (2002), at http://www.mipsor.state.mi.us. Nevertheless, the plaintiff CONCLUSION points to a provision in the Michigan registration act to the effect that “[t]he legislature has determined that a person who In light of the Supreme Court’s intervening decision in has been convicted of committing an offense covered by this Connecticut Department of Public Safety v. Doe, and given act poses a potential serious menace and danger to the health, the similarity between Connecticut’s and Michigan’s statutes, safety, morals, and welfare of the people” and that “[t]he we conclude that the district court’s decision invalidating the registration requirements of this act are intended to provide Michigan statute under the Fourteenth Amendment to the law enforcement and the people . . . an . . . effective means to United States Constitution cannot be sustained. We therefore monitor those persons who pose such a potential danger.” REVERSE the judgment of the district court holding MICH. COMP. LAWS § 28.721a (2003). He contends that this unconstitutional the Michigan Sex Offenders Registration language in the statute, even though it did not appear in the Act, MICH. COMP. LAWS §§ 28.721-732 (2003). The question information presented on the website, deprives him of his of the authority of the district court to enjoin immediate “constitutionally protected interest in not being falsely labeled enforcement action by the state thereby becomes moot, and as a dangerous sex offender” and is sufficient to invalidate the we VACATE the order of injunction without ruling on the act despite the holding in Connecticut Department of Public Eleventh Amendment question raised by the state on appeal. Safety v. Doe. We disagree. Regardless of the language in the statute, the information on the registry’s website makes it clear to anyone accessing the registry that all sex offenders convicted after a