CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2002
Syllabus
CONNECTICUT DEPARTMENT OF PUBLIC SAFETY ET AL.
v. DOE,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No.01-1231. Argued November 13, 2002-Decided March 5, 2003
Among other things, Connecticut's "Megan's Law" requires persons
convicted of sexual offenses to register with the Department of
Public Safety (DPS) upon their release into the community, and
requires DPS to post a sex offender registry containing
registrants' names, addresses, photographs, and descriptions on an
Internet Website and to make the registry available to the public
in certain state offices. Respondent Doe (hereinafter respondent),
a convicted sex offender who is subject to the law, filed a 42 U.
S. C. § 1983 action on behalf of himself and similarly situated sex
offenders, claiming that the law violates,
inter alia, the
Fourteenth Amendment's Due Process Clause. The District Court
granted respondent summary judgment, certified a class of
individuals subject to the law, and permanently enjoined the law's
public disclosure provisions. The Second Circuit affirmed,
concluding that such disclosure both deprived registered sex
offenders of a "liberty interest," and violated the Due Process
Clause because officials did not afford registrants a
predeprivation hearing to determine whether they are likely to be
"currently dangerous."
Held: The Second Circuit's judgment must be reversed
because due process does not require the opportunity to prove a
fact that is not material to the State's statutory scheme. Mere
injury to reputation, even if del
2
famatory, does not constitute the deprivation of a liberty
interest.
Paul v.
Davis, 424 U. S. 693. But even
assuming,
arguendo, that respondent has been deprived of a
liberty interest, due process does not entitle him to a hearing to
establish a fact-that he is not currently dangerousthat is not
material under the statute. Cf.,
e. g., Wisconsin v.
Constantineau, 400 U. S. 433. As the DPS
Website explains, the law's requirements turn on an offender's
conviction alone-a fact that a convicted offender has already had a
procedurally safeguarded opportunity to contest. Unless respondent
can show that the
substantive rule of law is defective (by
conflicting with the Constitution), any hearing on current
dangerousness is a bootless exercise. Respondent expressly disavows
any reliance on the substantive component of the Fourteenth
Amendment's protections, and maintains that his challenge is
strictly a procedural one. But States are not barred by principles
of
"procedural due process" from drawing such
classifications.
Michael H. v.
Gerald D., 491 U. S. 110, 120
(plurality opinion). Such claims "must ultimately be analyzed" in
terms of substantive due process.
Id., at 121. Because the
question is not properly before the Court, it expresses no opinion
as to whether the State's law violates substantive due process
principles. Pp.6-8.
271 F.3d
38, reversed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER,
JJ., joined. SCALIA, J., filed a concurring opinion,
post,
p. 8. SOUTER, J., filed a concurring opinion, in which GINSBURG,
J., joined,
post, p. 9. STEVENS, J., filed an opinion
concurring in the judgment,
post, p. 110.
Richard Blumenthal, Attorney General of Connecticut,
argued the cause for petitioners. With him on the briefs were
Gregory T. D'Auria, Associate Attorney General, and
Lynn
D. Wittenbrink, Perry Zinn Rowthorn, and
Mark F. Kohler,
Assistant Attorneys General.
Solicitor General Olson argued the cause for the United States
as amicus curiae urging reversal. With him on the brief were
Assistant Attorney General McCallum, Deputy Solicitor General
Clement, Gregory G. Garre, Leonard Schaitman, and Mark W
Pennak.
3
Shelley R. Sadin argued the cause for respondents. With her on
the brief were Drew S. Days III, Beth S. Brinkmann, Seth M.
Galanter, Philip Tegeler, and Steven R. Shapiro.
*
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
We granted certiorari to determine whether the United States
Court of Appeals for the Second Circuit properly en-
*Briefs of
amici curiae urging reversal were filed for
the District of Columbia et al. by
Robert R. Rigsby,
Corporation Counsel of the District of Columbia,
Charles L.
Reischel, Deputy Corporation Counsel, and
Edward E.
Schwab, Senior Assistant Corporation Counsel, and by the
Attorneys General for their respective jurisdictions as follows:
Bill Pryor of Alabama,
Bruce M. Botelho of Alaska,
Janet Napolitano of Arizona,
Bill Lockyer of
California,
Ken Salazar of Colorado,
M. Jane Brady of
Delaware,
Robert A. Butterworth of Florida,
Thurbert E.
Baker of Georgia,
Earl I. Anzai of Hawaii,
James E.
Ryan of Illinois,
Steve Carter of Indiana,
Carla
J. Stovall of Kansas,
Albert B. Chandler III
of Kentucky,
Richard p. Ieyoub of Louisiana,
J.
Joseph Curran, Jr., of Maryland,
Jennifer M. Granholm
of Michigan,
Mike Moore of Mississippi,
Jeremiah W (Jay)
Nixon of Missouri,
Don Stenberg of Nebraska,
Frankie
Sue Del Papa of Nevada,
Patricia A. Madrid of New
Mexico,
Eliot Spitzer of New York,
Robert Torres of
the Northern Mariana Islands,
W A. Drew Edmondson of
Oklahoma,
Hardy Myers of Oregon,
Anabelle Rodriguez
of Puerto Rico,
Charles M. Condon of South Carolina,
Mark
Barnett of South Dakota,
Paul G.
Summers of
Tennessee,
John Cornyn of Texas,
Mark L. Shurtleff of
Utah,
Jerry W Kilgore of Virginia,
Christine O.
Gregoire of Washington,
Darrell V. McGraw, Jr., of
West Virginia, and
James E. Doyle of Wisconsin; for the
National Governors Association et al. by
Richard Ruda and
James I. Crowley; for the Center for the Community Interest
by
Robert J. Del Tufo; and for the Criminal
Justice Legal Foundation by
Kent
Briefs of
amici curiae urging affirmance were filed for
the Association for the Treatment of Sexual Abusers by
David A.
Reiser; for the Office of the Public Defender for the State of
New Jersey by
Peter A. Garcia, Michael Z. Buncher, and
Brian J. Neff; and for the Public Defender
Service for the District of Columbia et al. by
James W Klein,
Samia A. Fam, and
Corinne A. Beckwith.
Lucy A. Dalglish and
Gregg P. Leslie filed a brief
for the Reporters Committee for Freedom of the Press as
amicus
curiae.
4
joined the public disclosure of Connecticut's sex offender
registry. The Court of Appeals concluded that such disclosure both
deprived registered sex offenders of a "liberty interest," and
violated the Due Process Clause because officials did not afford
registrants a pre deprivation hearing to determine whether they are
likely to be "currently dangerous."
Doe v.
Department of
Public Safety ex rel. Lee, 271 F.3d
38, 44, 46 (2001) (internal quotation marks omitted).
Connecticut, however, has decided that the registry requirement
shall be based on the fact of previous conviction, not the fact of
current dangerousness. Indeed, the public registry explicitly
states that officials have not determined that any registrant is
currently dangerous. We therefore reverse the judgment of the Court
of Appeals because due process does not require the opportunity to
prove a fact that is not material to the State's statutory
scheme.
"Sex offenders are a serious threat in this Nation."
McKune v.
Lile, 536 U. S. 24, 32 (2002)
(plurality opinion). "[T]he victims of sex assault are most often
juveniles," and "[w]hen convicted sex offenders reenter society,
they are much more likely than any other type of offender to be
rearrested for a new rape or sexual assault."
Id., at 32-33.
Connecticut, like every other State, has responded to these facts
by enacting a statute designed to protect its communities from sex
offenders and to help apprehend repeat sex offenders. Connecticut's
"Megan's Law" applies to all persons convicted of criminal offenses
against a minor, violent and nonviolent sexual offenses, and
felonies committed for a sexual purpose. Covered offenders must
register with the Connecticut Department of Public Safety (DPS)
upon their release into the community. Each must provide personal
information (including his name, address, photograph, and DNA
sample); notify DPS of any change in residence; and periodically
submit an updated photograph. The registration requirement runs for
10 years in most cases; those con-
5
victed of sexually violent offenses must register for life.
Conn. Gen. Stat. §§ 54-251, 54-252, 54-254 (2001).
The statute requires DPS to compile the information gathered
from registrants and publicize it. In particular, the law requires
DPS to post a sex offender registry on an Internet Website and to
make the registry available to the public in certain state offices.
§§ 54-257, 54-258. Whether made available in an office or via the
Internet, the registry must be accompanied by the following
warning: " 'Any person who uses information in this registry to
injure, harass or commit a criminal act against any person included
in the registry or any other person is subject to criminal
prosecution.'" § 54-258a.
Before the District Court enjoined its operation, the State's
Website enabled citizens to obtain the name, address, photograph,
and description of any registered sex offender by entering a zip
code or town name. The following disclaimer appeared on the first
page of the Website:
"'The registry is based on the legislature's decision to
facilitate access to publicly-available information about persons
convicted of sexual offenses. [DPS] has not considered or assessed
the specific risk of reoffense with regard to 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. Individuals included within the registry are
included solely by virtue of their conviction record and state law.
The main purpose of providing this data on the Internet is to make
the information more easily available and accessible, not to warn
about any specific individual.' " 271 F. 3d, at 44.
Petitioners include the state agencies and officials charged
with compiling the sex offender registry and posting it on the
Internet. Respondent Doe (hereinafter respondent) is a convicted
sex offender who is subject to Connecticut's Meg-
6
an's Law. He filed this action pursuant to Rev. Stat. § 1979, 42
U. S. C. § 1983, on behalf of himself and similarly situated sex
offenders, claiming that the law violates,
inter alia, the
Due Process Clause of the Fourteenth Amendment. Specifically,
respondent alleged that he is not a "'dangerous sexual offender,'"
and that the Connecticut law "deprives him of a liberty
interest-his reputation combined with the alteration of his status
under state law-without notice or a meaningful opportunity to be
heard." 271 F. 3d, at 45-46. The District Court granted summary
judgment for respondent on his due process claim. 132 F. Supp. 2d
57 (Conn. 2001). The court then certified a class of individuals
subject to the Connecticut law, and permanently enjoined the law's
public disclosure provisions.
The Court of Appeals affirmed,
271 F.3d
38 (CA2 2001), holding that the Due Process Clause
entitles class members to a hearing "to determine whether or not
they are particularly likely to be currently dangerous before being
labeled as such by their inclusion in a publicly disseminated
registry."
Id., at 62. Because Connecticut had not provided
such a hearing, the Court of Appeals enjoined petitioners from
"'disclosing or disseminating to the public, either in printed or
electronic form (a) the Registry or (b) Registry information
concerning [class members]''' and from "'identifying [them] as
being included in the Registry.'"
Ibid. The Court of Appeals
reasoned that the Connecticut law implicated a "liberty interest"
because of: (1) the law's stigmatization of respondent by
"implying" that he is "currently dangerous," and (2) its imposition
of "extensive and onerous" registration obligations on respondent.
Id., at 57. From this liberty interest arose an obligation,
in the Court of Appeals' view, to give respondent an opportunity to
demonstrate that he was not "likely to be currently dangerous."
Id., at 62. We granted certiorari, 535 U. S. 1077
(2002).
In
Paul v.
Davis, 424 U. S. 693 (1976), we
held that mere injury to reputation, even if defamatory, does not
constitute
7
the deprivation of a liberty interest. Petitioners urge us to
reverse the Court of Appeals on the ground that, under
Paul
v.
Davis, respondent has failed to establish that
petitioners have deprived him of a liberty interest. We find it
unnecessary to reach this question, however, because even assuming,
arguendo, that respondent has been deprived of a liberty
interest, due process does not entitle him to a hearing to
establish a fact that is not material under the Connecticut
statute.
In cases such as
Wisconsin v.
Constantineau,
400 U. S. 433
(1971), and
Goss v.
Lopez, 419 U. S. 565 (1975), we
held that due process required the government to accord the
plaintiff a hearing to prove or disprove a particular fact or set
of facts. But in each of these cases, the fact in question was
concededly relevant to the inquiry at hand. Here, however, the fact
that respondent seeks to prove-that he is not currently
dangerous-is of no consequence under Connecticut's Megan's Law. As
the DPS Website explains, the law's requirements turn on an
offender's conviction alone-a fact that a convicted offender has
already had a procedurally safeguarded opportunity to contest. 271
F. 3d, at 44 (" 'Individuals included within the registry are
included
solely by virtue of their conviction record and
state law'" (emphasis added)). No other fact is relevant to the
disclosure of registrants' information. Conn. Gen. Stat. §§ 54-257,
54-258 (2001). Indeed, the disclaimer on the Website explicitly
states that respondent's alleged nondangerousness simply does not
matter. 271 F. 3d, at 44 (" '[DPS] has made no determination that
any individual included in the registry is currently dangerous'
").
In short, even if respondent could prove that he is not likely
to be currently dangerous, Connecticut has decided that the
registry information of
all sex offenders-currently
dangerous or not-must be publicly disclosed. Unless respondent can
show that that
substantive rule of law is defective (by
conflicting with a provision of the Constitution), any
8
hearing on current dangerousness is a bootless exercise. It may
be that respondent's claim is actually a substantive challenge to
Connecticut's statute "recast in 'procedural due process' terms."
Reno v.
Flores, 507 U. S. 292, 308
(1993). Nonetheless, respondent expressly disavows any reliance on
the substantive component of the Fourteenth Amendment's
protections, Brief for Respondents 44-45, and maintains, as he did
below, that his challenge is strictly a procedural one. But States
are not barred by principles of
"procedural due process"
from drawing such classifications.
Michael H. v.
Gerald
D., 491 U. S.
110, 120 (1989) (plurality opinion) (emphasis in original). See
also
id., at 132 (STEVENS, J., concurring in judgment). Such
claims "must ultimately be analyzed" in terms of substantive, not
procedural, due process.
Id., at 121. Because the question
is not properly before us, we express no opinion as to whether
Connecticut's Megan's Law violates principles of substantive due
process.
Plaintiffs who assert a right to a hearing under the Due Process
Clause must show that the facts they seek to establish in that
hearing are relevant under the statutory scheme. Respondent cannot
make that showing here. The judgment of the Court of Appeals is
therefore
Reversed.
JUSTICE SCALIA, concurring.
I join the Court's opinion, and add that even if the
requirements of Connecticut's sex offender registration law
implicate a liberty interest of respondents, the categorical
abrogation of that liberty interest by a validly enacted statute
suffices to provide all the process that is "due"-just as a state
law providing that no one under the age of 16 may operate a motor
vehicle suffices to abrogate that liberty interest. Absent a claim
(which respondents have not made here) that the liberty interest in
question is so fundamental as to implicate so-called "substantive"
due process, a properly enacted law can eliminate it. That is
ultimately why,
9
as the Court's opinion demonstrates, a convicted sex offender
has no more right to additional "process" enabling him to establish
that he is not dangerous than (in the analogous case just
suggested) a 15-year-old has a right to "process" enabling him to
establish that he is a safe driver.
JUSTICE SOUTER, with whom JUSTICE GINSBURG joins,
concurring.
I join the Court's opinion and agree with the observation that
to day's holding does not foreclose a claim that Connecticut's
dissemination of registry information is actionable on a
substantive due process principle. To the extent that libel might
be at least a component of such a claim, our reference to
Connecticut's disclaimer,
ante, at 5, would not stand in the
way of a substantive due process plaintiff. I write separately only
to note that a substantive due process claim may not be the only
one still open to a test by those in the respondents'
situation.
Connecticut allows certain sex offenders the possibility of
avoiding the registration and reporting obligations of the statute.
A court may exempt a convict from registration altogether if his
offense was unconsented sexual contact, Conn. Gen. Stat. §
54-251(c) (2001), 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, § 54251(b). A court also has discretion to limit
dissemination of an offender's registration information to law
enforcement purposes if necessary to protect the identity of a
victim who is related to the offender or, in the case of a sexual
assault, who is the offender's spouse or cohabitor. §§ 54-255(a),
(b). *
*To mitigate the retroactive effects of the statute, offenders
in these categories who were convicted between October 1, 1988, and
June 30, 1999, were allowed to petition a court for restricted
dissemination of registry information. §§ 54-255(c)(1)-(4). A
similar petition was also available to any offender who became
subject to registration by virtue of a conviction
10
Whether the decision is to exempt an offender from registration
or to restrict publication of registry information, it must rest on
a finding that registration or public dissemination is not required
for public safety. §§ 54-251(b), 54-255(a), (b). The State thus
recognizes that some offenders within the sweep of the publication
requirement are not dangerous to others in any way justifying
special publicity on the Internet, and the legislative decision to
make courts responsible for granting exemptions belies the State's
argument that courts are unequipped to separate offenders who
warrant special publication from those who do not.
The line drawn by the legislature between offenders who are
sensibly considered eligible to seek discretionary relief from the
courts and those who are not is, like all legislative choices
affecting individual rights, open to challenge under the Equal
Protection Clause. See,
e. g., 3 R. Rotunda & J.
Nowak, Treatise on Constitutional Law § 17.6 (3d ed. 1999); L.
Tribe, American Constitutional Law § 16-34 (2d ed. 1988). The
refusal to allow even the possibility of relief to, say, a
19-year-old who has consensual intercourse with a minor aged 16 is
therefore a reviewable legislative determination. Today's case is
no occasion to speak either to the possible merits of such a
challenge or the standard of scrutiny that might be in order when
considering it. I merely note that the Court's rejection of
respondents' procedural due process claim does not immunize
publication schemes like Connecticut's from an equal protection
challenge.
[For opinion of JUSTICE STEVENS concurring in the judgment, see
post, p. 110.]
prior to October 1, 1998, if he was not incarcerated for the
offense, had not been subsequently convicted of a registrable
offense, and had properly registered under the law. §
54-255(c)(5).
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