Opinion
CASE NO. 3:99CV314(RNC)
May 17, 2001
MEMORANDUM OPINION ON DEFENDANTS' MOTION FOR STAY OF PERMANENT INJUNCTION
In a telephone conference earlier today, the Court granted plaintiff's motion for a permanent injunction on behalf of the due process class, entered the injunction, and denied defendants' motion for a stay of the injunction, stating that this memorandum opinion addressing the denial of the stay would follow.
Defendants have moved pursuant to Rule 62(c) for a stay of the permanent injunction pending appeal or, in the alternative, for a more limited stay to permit them time to seek a stay from the Court of Appeals. The merits of the stay have been briefed and were argued on May 15. After careful consideration, I have concluded that the motion for stay pending appeal must be denied and that, in the extraordinary circumstances presented in this case, even the more limited stay should not be granted.
In evaluating a Rule 62(c) motion for stay of an injunction, the Court must consider (1) whether the applicant has made a strong showing that it is likely to succeed on the merits of the appeal; (2) whether the applicant will be irreparably injured unless a stay is granted; (3) whether a stay will substantially injure other parties interested in the proceeding; and (4) the public interest. See Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir. 1999) (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
Defendants have not made a strong showing that they are likely to prevail on appeal. They have presented no new evidence or authority since the due process claim was briefed and decided. The fact that the Second Circuit has not previously considered the due process issue presented here is relevant but by itself plainly insufficient to justify a stay. Of the cases cited by the defendants, only two involve an undifferentiated registry. See Akella v. Michigan Dep't of State Police, 67 F. Supp.2d 716 (E.D. Mich. 1999); Lanni v. Engler, 994 F. Supp. 849 (E.D.Mich. 1998). Neither case establishes that the defendants are likely to succeed on appeal.
The defendants have been urged to identify any harms that could arise from entry of the injunction barring them from continuing to make the undifferentiated Registry publicly available while the case is on appeal. At oral argument on May 15, their counsel was unable to identify any harm that is not more than adequately addressed by the careful tailoring of the injunction. See May 15th Hearing on Motions, Tr. at 10-23. In the telephone conference this morning, the defendants were given another opportunity to comment but declined to do so.
One example of asserted harm that the State has singled out for special emphasis both in court and in the media hypothesizes a situation in which a dangerous sex offender relocates his residence to a dwelling across the street from a school for young children. If that were to happen in the real world, reasonably diligent law enforcement officials in that city or town could readily discover the offender's change of residence simply by checking the Registry, which will continue to be updated and remain available to law enforcement officials and agencies at all times. Moreover, if that situation were to occur, nothing in the injunction would prevent law enforcement officials from taking steps to inform everyone at the school and everyone in the neighborhood of the registrant's prior offenses. The injunction would prevent law enforcement officials from providing the Registry itself to the public, identifying the registrant as being included in the Registry, or publicly disclosing the registrant's Registry information in a manner that revealed his conclusion in the Registry. The defendants have not shown that those limitations would cause anyone any harm.
The only other harm defendants have mentioned is an asserted risk that the injunction could cause the State to lose federal funds because of the restrictions imposed by the Wetterling Act. Assuming that the loss of federal grant money that would follow from a state's noncompliance with the Wetterling Act could constitute irreparable harm, the State need have no such concern in this case because the injunction permits it to make the disclosure required by federal law, that is, disclosure of information necessary to protect the public from a specific person. See 42 U.S.C. § 14071(e)(2). The injunction only requires that, in releasing such information, law enforcement not identify the specific person as being included in the Registry. This limitation in no way dilutes or diminishes the effectiveness of the warning because inclusion in the Registry reflects no assessment of a person's dangerousness and hence the fact of inclusion adds nothing to the information law enforcement can otherwise provide.
This is not a situation in which denial of the stay will eliminate any meaningful opportunity for the defendants to seek review in the Court of Appeals. See, e.g., Providence Journal Co. v. FBI, 595 F.2d 889, 890 (1st Cir. 1979) (injunction ordering FBI to turn over confidential documents to newspaper should be stayed pending appeal; disclosure of documents will utterly destroy the status quo and moot FBI's right of appeal). However, granting the stay would permit the defendants to violate the due process rights of all current and future registrants on an ongoing basis until the appeal was resolved, which necessarily would cause substantial, irreparable harm to them. See Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (a "presumption of irreparable injury . . . flows from a violation of constitutional rights"), overruled on other grounds by City of Boerne v. Flores, 521 U.S. 507 (1997).
With regard to the public interest, the interests in public safety and effective law enforcement have already been addressed above. As explained there, the injunction does not threaten any harm to those interests. In addition to those interests, the Court must also be concerned about the public interest in not having the State engage in conduct that results in an ongoing violation of federal constitutional rights and, as plaintiff's counsel have correctly pointed out, there is a distinct public interest in having this Court discharge its duty to protect and enforce those rights. The State has unambiguously taken the position that in the absence of class certification it would refuse to extend the benefit of this Court's ruling to anyone except the named plaintiff. See May 15th Hearing on Motions, Tr. at 24. Though hardly dispositive of the issues presented by the State's request for a stay, the State's deliberate refusal to give similarly situated registrants the benefit of the Court's ruling on the due process issue in the absence of an order providing classwide relief cannot be overlooked.
Turning to the defendants' request for a brief stay while they try to obtain a stay from the Court of Appeals, ordinarily such a request would be granted if only to avoid causing undue hardship to counsel and the Court of Appeals. However, extraordinary circumstances presented here make it necessary to deny even such a brief stay. Anticipating today's order granting plaintiff's request for a permanent injunction barring public disclosure of the Registry, a local television station filed yesterday a Freedom of Information Act request for a copy of the Registry database, presumably because the station would like to provide public access to the Registry through its own website. The defendants have informed the Court that action on the FOIA request is not required until Tuesday, and that they would endeavor to complete and file their stay application in the Court of Appeals by Monday. This gives no assurance that the Registry would not be released to the station on Tuesday. Moreover, the station's request highlights the risk that persons unaffiliated with the defendants have been, are, or would be taking steps to download the information in the Registry. Plaintiff's counsel's reference this morning to the recent Napster controversy is a helpful reminder of the ease with which information provided over the Internet can be copied and disseminated. The Court is also aware that before New York State put any part of its sex offender registry on the Internet, a private group copied the subdirectory of high risk offenders and created its own website. See http://www.parentsformeganslaw.com/html/offender. lasso. It therefore appears that leaving the defendants' website up and running even for only a few more days would needlessly risk enabling third parties to download and print the contents of the database. If such a project were accomplished, the Registry would continue to be publicly available. Dissemination of such a copied registry by private parties would not be reachable under the Fourteenth Amendment, but it would have been made possible only because of the State's prior violation of registrants' due process rights.
In sum, the balance of equities on the request for a stay tips decidedly in favor of denying the stay and the defendants' request for a stay is therefore denied.
It is so ordered this 18th day of May 2001.
MEMORANDUM OPINION ON PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
In a telephone conference earlier today, the Court granted plaintiff's motion for class certification and stated that this memorandum opinion would follow. The motion is granted for substantially the reasons stated in plaintiff's memoranda in support of the motion [doc. #67] and in response to defendants' opposition [doc. #76]. The class, which is certified under Federal Rule of Civil Procedure 23(b)(2), consists of all persons who are subject to the registration and public disclosure requirements of Connecticut's sex offender registry act, Connecticut General Statutes §§ 54-250 et seq., without notice and an opportunity to be heard on the question whether they are dangerous.
Rule 23(a) permits certification when (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative party are typical of the claims or defenses of the class, and (4) the representative party will fairly and adequately protect the interests of the class.
The first three prerequisites to class certification are clearly satisfied. At oral argument on May 15, defendants' counsel represented that more than 2000 people are subject to the registration requirements of the Connecticut statute. See May 15th Hearing on Motions, Tr. at 11. All class members share the common question of law whether the statute violates a registrant's constitutionally protected liberty interest in not being designated a currently dangerous sex offender without notice and an opportunity to be heard. Plaintiff's claim is typical because defendants have denied all class members notice and an opportunity to be heard.
With regard to the fourth prerequisite to class certification, John Doe adequately represents the interests of the class. His counsel have experience prosecuting class actions and the Court has observed first-hand their conduct in this case. There is no apparent conflict of interest between John Doe and other class members.
Because these requirements are satisfied, the action may be maintained as a class action under Rule 23(b)(2) provided the defendants have acted on grounds generally applicable to the class. It is undisputed that they have. Accordingly, class certification is proper.
The only other matter that requires comment is the applicability of the line of cases associated with Galvan v. Levine, 490 F.2d 1255, 1261 (2d Cir. 1973), which teach that in circumstances like this class certification might well be unnecessary or at most a formality. See Vulcan Soc'y of N.Y. City Fire Dep't v. Civil Serv. Comm'n., 490 F.2d 387, 399 (2d Cir. 1973) ("If the examination procedures were found unconstitutional as regards the named plaintiffs, they were equally so as regards all eligible blacks and Hispanics, and it would be unthinkable that the municipal defendants would insist on other actions being brought."). Galvan is inapplicable because defendants have clearly stated that, in the absence of class certification, they will not extend the benefit of the Court's ruling in favor of John Doe to similarly situated registrants unless and until the ruling is affirmed on appeal. Given the defendants' position, class certification is essential.
Also, the Galvan line of cases is limited to suits seeking prohibitory injunctive relief. While "[t]he distinction between mandatory and prohibitory injunctions is not without ambiguities or critics," Jolly v. Coughlin, 76 F.3d 468, 474 (2d Cir. 1996), the element of the permanent injunction in this case requiring defendants to take down the website is mandatory.
Dated at Hartford, Connecticut, this 18th day of May 2001.
RULING AND ORDER GRANTING PERMANENT INJUNCTION
For reasons more fully stated in a ruling and order on cross-motions for summary judgment dated March 31, 2001, the Court has determined that public disclosure and dissemination of plaintiff's inclusion in the sex offender registry maintained by the defendants pursuant to the Connecticut sex offender registry act, Connecticut General Statutes §§ 54-250 et. seq. (the "Registry" and the "Act") violates plaintiff's rights under the Due Process Clause of the Fourteenth Amendment. Plaintiff has been included in the registry, not because he has been determined to pose a threat to public safety, but solely because he has been convicted of one of the numerous offenses enumerated in the Act. Plaintiff has a liberty interest in not being falsely labeled a dangerous sex offender — a label inherent in his inclusion in the undifferentiated registry. Defendants have deprived him of that interest without providing him notice and an opportunity to be heard on the question whether he is dangerous.
The Court has granted plaintiff's motion to certify a class of of all persons who are subject to the registration and public disclosure requirements of the Act without notice and an opportunity to be heard on the question whether they are dangerous (the "due process class"). Class certification is appropriate under Rule 23(b)(2) of the Federal Rules of Civil Procedure because the requirements of numerosity, commonality, typicality, and adequacy of representation are satisfied and defendants have acted on grounds generally applicable to the class, thereby making appropriate final injunctive relief with respect to the class as a whole.
Accordingly, it is hereby ordered:
Defendants, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them who receive actual notice of this order, are permanently enjoined from:
1) disclosing or disseminating to the public, either in printed or electronic form (a) the Registry or (b) Registry information concerning a member of the due process class if the information identifies the class member as being included in the Registry; and,
2) identifying any member of the due process class as being included in the Registry;
provided that nothing in this order shall:
1) impair access to the Registry by law enforcement agencies and officers, including but not limited to the Connecticut Department of Correction, Board of Pardons, Board of Parole, Court Support Services Division, and Division of Criminal Justice;
2) preclude law enforcement agencies and officers carrying out official duties from using information contained in the Registry in specific criminal investigations and prosecutions, so long as members of the due process class are not described to the public as being included in the Registry;
3) preclude law enforcement agencies and officers carrying out official duties from disclosing or disseminating to the public information necessary to protect the public concerning a specific person, so long as members of the due process class are not described to the public as being included in the Registry; or
4) affect the public's ability to obtain individual criminal conviction history records pursuant to Connecticut General Statutes Sections 1-210 et seq. and 29-11 et seq.
Defendants are directed to serve a copy of this order on each local police department, law enforcement agency, or other state or local entity to which they have transmitted the Registry or Registry information. Each such department, agency, or entity is bound by this order.
Pursuant to this order, but without limitation of it, defendants shall immediately take down the Registry website and cease making publicly available the Registry information maintained pursuant to C.G.S. § 54-258(a)(1) at the Department of Public Safety and at local police departments and state police troops.
This order is a statement of federal law that supersedes any state law to the contrary, including without limitation the Connecticut Freedom of Information Act.
So ordered.
Dated at Hartford, Connecticut, this 17th day of May 2001.