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 ( http://sosen.org/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. ( http://sosen.org/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 ( http://sosen.org/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.  ( http://sosen.org/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.

  1. Alan Davis
    December 5, 2016 at 8:35 am

    This is such a good article. It lays out all of the reasoning of why what the legislature did after a finial judicial decision was reached, is completely unconstitutional.

    In MA, a similiar law was passed which would have added all of the tier 2 registered citizens to the Internet published list. The State Supreme Court here said that since over 98% of all convictions were garnered through pleas, and that those who were classified as tier 2 would likely have not taken their pleas if they had know that they would be published on the Internet, that adding them after the fact was Ex-post Facto and definitely additional punishment. They said the only way the law could stand would be to retract all of the pleas and allow new hearings in each case.

    The legislature was allowed to add those who had convictions after the passing of the legislature if they are classified as tier 2 or tier 3, but not those who were classified prior to the law being passed.

    An interesting side note is that prior to this law, the SORNA Board used to generally have a distribution of 25% were tier 1, 50% were tier 2 and 25% were tier 3. Since the change in the law, the distribution has changed to 50% now classified as tier 1 and 25% each for tier 2 and tier 3.

  2. Tim R.
    December 5, 2016 at 4:00 pm

    Arizona just did something similar thsi past year (2016) and they were successful. In the last legislative session, they amended a current law about public notification requirements on the Department of Public safety website. Now all registrants (even Level I – low risk) who fit the newly defined criteria now worded in the statute will appear online in the public registry. While it wont affect all Level 1 registrants it will affect a good portion. The DPS is in the process of reviewing over 6000 level 1 offender cases and makingthe detrmination of whether or not to now put them on the website.

    This came about because of a local mother didnt think it was right not to have level 1’s on the website. She then lobbied her local representative in an election year and that representative drafted the amended statute and had it pass through both the house and the senate with not a single NAY vote in either chamber.

    For those who are interested, it is HB1286 of the Arizona state legislature of the 52nd regular session. When i saw this, I thought it had to be unconstitutional, but had no idea how to fight it.

    If there is anyone that sees this and knows how to stop it even though it is now law, please forward this information along. My status of level 1 and not being under notification requirements has been paramount in my abilities to put my life back together and lead a law abiding and productive healthy life that anyone would be proud of.

  3. Alan Davis
    December 8, 2016 at 10:01 am

    The information contained on the registry is not all public records.

    What I was convicted of, the date of that conviction, the sentence given, and possibly the town I lived in at the time of the conviction. Only those items would be a public record. But what I look like now, where I currently live, where I am employed, or go to school and certainly my internet identifiers, are not public records. And through a separate government agency has a record of what type of car I drive and it’s license number, that information is not part of the public records either.

    Only the released information at the time of my conviction was a public government record. So what the registration laws of the state determine and only those registrants that they decided to post on the Internet in that registry can have their information released to the public, because much of the information gathered through the registration process IS NOT A PUBLIC RECORD!

  4. mike r
    December 9, 2016 at 10:54 am

    thats right… just as your governmental medical records, dmv information, and your tax information is confidential even though they are government records they are not subject to public disclosure and neither should any of our criminal records except for the actual court proceedings and decisions. Criminal records should only be used for prosecutors or other officers of the courts in order for sentencing enhancements or police officers when they are investigating a crime and your a suspect and there should only be exceptions for qualified individuals who meet certain criteria and have a need to know basis..

  5. In Search of Liberty
    December 10, 2016 at 8:46 am

    A primary concern for me personally is this: The affect sex offender (SO) laws has on the family of a registered citizen (RC). Especially if the he/she has children. For example, I look at the case of Arrello Duarte, a RC in the city of Lewisville TX. That city had passed an ordinance that prohibited RCs from living within I believe 2000 of a school, daycare, you know the drill. In effect banishing him, his wife and two small children from the city into a one bedroom motel on the side of a hwy. He filed a lawsuit, which is pending right now in the 5th Circuit Court of Appeals, against the city. Now my point is this, I don’t know Mr. Duarte personally, but I would bet 2:1 odds that had he NO family he would not have bothered with the lawsuit. He filed because his family was/is under attack!!! He could not even work in the city because of the ordinance. His wife had to work two jobs to support the family. Now how do you think that makes real man feel? His wife and children are looking at him, expecting him to do something, protect them. But the SO registry takes that ability away from a man, it EMASCULATES him. I know first hand, the SO registry keep me and my family apart. So all the legal discussions on this issue, it’s good to have but I can tell you, a real man needs to be a real man, especially, especially if he has a family.

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