What the Washington Legislator’s did maybe Unconstitutional and Illegal.

A recent article in the Tri-City Herald ( http://www.tri-cityherald.com/news/local/article117320733.html )  got me thinking. The article is about a woman who lives in Washington state and has been trying to get the names of a low-level Registered Citizens that the state has not posted on their website, so that she can post them on the Internet. That information includes the place where they live, many times with family members. After losing a legal battle to get these names, a legal battle that I would note she and her supporters lost on the grounds that “In its decision in John Does v. Washington State Patrol and Donna Zink, the court recalled it had previously interpreted the records act to imply a general personal privacy exemption.” At that point the state legislature in Washington went in and wordsmith the records act law.  “The ruling was promptly overruled by the state Legislature, which amended state code to strengthen the act. It explicitly linked releasing sex offender data to public safety.” Basically violating the Vested rights doctrine* as well as the constitutional ban on Special laws* and Bills of attainder*

It must be noted who joined Zink in her crusade in the courts to have these documents released both the Washington patrol and the Washington Association of Sheriffs and Police Chiefs who had originally planned to release the documents until they were stopped by court action. The reason that I note that these organizations were involved in the lawsuit to release the documents is because these same organizations are the ones that would be reported to if there was any misuse of that released information for discrimination, threats or harassment etc. you will note at the top of the article that “To date, the Mesa-based public records advocate has received just one phone call, and law enforcement sources say they don’t know of any incidents stemming from convicted offenders whose information was previously treated as confidential.”

One of the things as an advocate group is that we have been informed of what is going on across this country by registered citizens and family members. The fact is that complaints about harassment of registered citizens and their families in violation of state laws, that prohibits the use of the registry for discrimination, harassment, and threats, have not been acted on by law enforcement across this nation. Most registered citizens and their families have learned that it does no good to contact law enforcement when they are discriminated against in housing, jobs, access to public places or threats and general harassment by the citizenry. Those complaints fall on deaf ears at law enforcement.

If I were a registered citizen or family member in Washington whose name was now published, any form of discrimination or harassment that I received, I would immediately report it to law enforcement. If law enforcement chose not to follow the law of arresting people for violating the section of the registry law that prohibits discrimination based on the use of registry. Then I would file a writ of mandatums* forcing law enforcement to do their job.

It’s interesting that there are about the same number of law enforcement in this country as there are people on the registry about 850,000. Another interesting fact is that people in law-enforcement are around 14 times more likely to be involved in a new sex crime then somebody on the registry ( /blog/2015/12/29/who-really-commits-new-sex-crimes.html ). So my question is why did the law enforcement agencies in Washington take part in this lawsuit, was it to divert attention away from their crimes?

Next you will note that the reason for the legislator amending the law and specifically targeting it it to registered citizens was a public safety issue. We will point out that there is NO public safety issue involved in this. People on the registry have a re-offense rate of less than 1% also they are involved in far less than 1% of the new sex crimes in this country. The myth of a high re-offense rate is just that it is a myth that is based on lies and false information. ( /blog/2016/06/13/destroyed-families-destroyed-lives-all-because-of-a-lie.html ) So if the people on the registry have a re-offense rate of less than 1% and the people that are deemed less likely to reoffend must have a phenomenally low re-offense rate. So just what is the purpose of releasing those names. The only public safety issue here is one about the safety of the people whose names have been released and their family members!

Finally and lastly there is the concept of law that says that a person’s reputation and standing in the community are actually a Protected Liberty Interest ( /blog/2016/03/13/your-reputation-and-standing-are-protected-liberties.html ) as far as our Constitution is concerned. Now since the re-offense rate is so low perhaps it is time for another case like the State of Hawaii v Bani case where the Hawaii Supreme Court said that a person’s name could not be placed on public notification and unless the state could prove beyond reasonable doubt that that person was a danger to the community at the time of the hearing, in plain terms past acts that happened years before could not be used as a precursor of future dangerousness.


* Vested rights doctrine
“It is not within the power of a legislature to take away rights which have been once vested by a judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases. ”McCullough v. Virginia, 172 U.S. 102 (U.S. 1898) “A vested right ensures “certainty and fairness” to the defendant so that he can be confident that a subsequently enacted regulation will not affect him.” (see The Yale Law Journal Volume 96, Number 6, May 1987.  http://www.conservapedia.com/Vested_rights_doctrine
Quote Vested rights doctrine protects someone who won a legal decision from a legislature seeking to overturn the decision. The doctrine has two components.

First, it protects the property right obtained by the victorious party against a taking of that property by the legislature. In this sense the protection is similar to constitutional protection of contractual rights by the Contract Clause. (remember a person’s reputation and standing is a protected liberty interest)

Second, and equally important, “vested rights” doctrine safeguards separation of powers against overreaching by the legislature. “[C]onsistent with the separation of powers, it protects judicial action from superior legislative review, ‘a regime [that would be] obviously inconsistent with due process of law and subversive of the judicial branch of government.'” Georgia Ass’n of Retarded Citizens v. McDaniel, 855 F.2d 805, 810 (11th Cir. 1988) (quoting Daylo v. Administrator of Veterans’ Affairs, 501 F.2d 811, 816 (D.C. Cir. 1974)).

“Vested rights” doctrine was first announced in McCullough v. Virginia, 172 U.S. 102, 123-24 (1898): “It is not within the power of the legislature to take away rights which have been once vested by judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases.”

Doctrine of Unconstitutional Conditions Law & Legal Definition
Doctrine of unconstitutional-conditions is a rule of constitutional law that bars a government from imposing a condition on the grant of a benefit requiring the waiver of a constitutional right. The government cannot condition a person’s receipt of a governmental benefit on the waiver of a constitutional ly protected right.
It also refers to the rule that government cannot force a defendant to choose between two constitutional ly protected rights.

Abuse of Rights Law & Legal Definition
The doctrine of Abuse of Rights, found in various guises in Civil Law jurisdictions, refers to the concept that the malicious or antisocial exercise of otherwise legitimate rights can give rise to civil liability. In general terms, the doctrine of abuse of rights provides that ‘fault’ in the delictual sense. It may be imposed upon a party who has exercised a right in a manner that has caused injury to another. At least one of four conditions is required to invoke the doctrine: (1) the predominant motive for exercising the right is to cause harm; (2) no serious or legitimate motive exists for exercising the right; (3) the exercise of the right is against moral rules, good faith, or elementary fairness; or (4) the right is exercised for a purpose other than that for which it was granted. (To me this is what Zink and her supporters as well as the legislative body of Washington have done.)

* Special laws

(Special legislation) is a legal term of art used in the United States which refers to acts of a state legislature which apply only to part of a class—a particular person, thing, or locale within a given class. “Special legislation” is also preferred as “Local legislation”. In most states, if a general law can be enacted, the legislature may not enact a special law, except a local law; and there are certain subjects on which the legislature cannot enact even local law. In some states, whether a law is “special” is determined by the courts; whether a general law could have been made applicable in is judicially determined without regard to any legislative assertion on that subject. Other states allow the legislature to determine whether a bill is special legislation. (By making an exception specifically aimed at registered citizens by amending the records act it would appear that the legislators have created a special law.)

*  Bill of Attainder
. Article 1, Section 9, Clause 3, of the U. S. Constitution guarantees that “no Bill of Attainder or ex post facto Law shall be passed.”Similarly, Article l, Section 10, provides that “[n]o state * * * shall pass any Bill of Attainder, ex post facto law, or law impairing the obligations of contracts * * *.” A bill of attainder is a type of class legislation that imposes punitive burdens on a particular, legislatively determined group, without the benefit of a judicial proceeding. Here, persons previously convicted of a crime, who have already been punished for their convictions, are further punished by legislative fiat by being deprived of the reputation and liberty. The prohibition against Bills of Attainder is offended by this statutory scheme.

In England, the bill of attainder was a legislative act that would simply declare a person or group of persons guilty of a particular crime, usually treason, and sentence the person or group to death and forfeiture of estate. United States v. Brown, 381 US 437, 441, 85 SCt 1707, 14 LEd2d 484 (1965).

Bills of attainder and pains and penalties were commonly used during and after the Revolution to deprive Tories of their rights and property, or to banish them from the state altogether. Brown, 381 US, at 442.While variable in form, they tended to have three common characteristic s:

1.  Convictions and sentences were pronounced by the Legislative Branch of the government, instead of the judicial;
2. The sentence pronounced and the punishment inflicted were determined by no previous law or fixed rule;
3. The investigation into the guilt of the accused, if any such were made, was not necessarily or generally conducted in his presence, or that of his counsel, and no recognized rule of evidence governed the inquiry.

*writ of mandatums
Mandamus (“We command”) is a judicial remedy in the form of an order from a superior court,[1] to any government subordinate court, corporation, or public authority—to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from doing)—and which is in the nature of public duty, and in certain cases one of a statutory duty. It cannot be issued to compel an authority to do something against statutory provision. For example, it cannot be used to force a lower court to reject or authorize applications that have been made, but if the court refuses to rule one way or the other then a mandamus can be used to order the court to rule on the applications.

Mandamus may be a command to do an administrative action or not to take a particular action, and it is supplemented by legal rights. In the American legal system it must be a judicially enforceable and legally protected right before one suffering a grievance can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something and abstains from doing it.

One final footnote: If in fact allowing Zink and her cronies to have and publish this information is in fact a Violation of our Constitutional principles and Laws, how can the damage to law-abiding registered citizens and their family members be undone. We all know that once a person’s information is placed on the Internet it’s never going to go away. The only way that I can see is to file a title 42 USC section 1983 tort for damages against the legislators who sponsored and voted for the amended version of the records act that allowed the information to be released. Remember if the legislators work outside their constitutional boundaries they can in fact be held accountable and sued.  ( /blog/2016/04/19/all-government-officials-can-be-sued-for-actions-outside-their-authority.html )  Since this release of information has affected so many people registered citizens and their family members, I can only hope that the court would make it a substantial award especially to the family members. Making a example of the people who tried to do an end run around our Republics Constitutional principles.



5 comments for “What the Washington Legislator’s did maybe Unconstitutional and Illegal.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.