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***SPECIAL REPORT***Chief Justice Lambert, Ross Harris, and . . . Larry Forgy? The Plot Thickens

"***SPECIAL REPORT***Chief Justice Lambert, Ross Harris, and . . . Larry Forgy? The Plot Thickens"

This post will lay out about 30% of what I promised yesterday. I'm still researching and investigating a number of the other pieces, but for now I want to advance the ball a little bit more on the Lambert/Harris matter, and try to make a little more sense of things and identify a few more pieces of this very complicated puzzle.

This story is now getting a good deal of traction statewide, but I sense that the second wave of media coverage is going to be even more significant. So, I want to see where this matter goes before I rollout everything I know. But here is the next very relevant piece I want to share.

Last weekend while doing research for the ethics complaint against the Lamberts, I stumbled upon quite a discovery that no one had previously noticed, and one that helps us better gauge the motives of Ross Harris in the first place. As I thought through this matter on hundreds of occasions in the past few weeks, one issue that continued to nag me was, from the perspective of Ross Harris, there had to be more to his plan than just straw contributions to Judge Debra Lambert. While that alone could be enough to make sure that he received the $14.5 million award several years earlier, I continued to believe that there had to be more.

After all, even with Chief Justice Lambert's vote only 3 members of the Court were on Harris' side. How sure could he be that Justice Janet Stumbo would recuse herself? And if she didn't recuse herself, which way does she vote? If she votes to grant review that would tip the balance 4-3, and Harris then has to pray he'll hold on after a full-blown appeal. So, what was he thinking? What was the back-up plan? After all, six or nine thousand dollars to Ross Harris was not a lot of money, especially for a multi-million dollar award. Clearly, I thought, he'd spend several thousand more on at least another piece or at least a back-up plan.

After hours of running the numbers, downloading spreadsheets, and sorting the figures by contributor name, then by Zip Code, then by amount, and then city, I finally found it, or at least one of "it." (There may be still more discoveries waiting to be found).

As you recall, the Elk Horn matter was appealed to the Supreme Court in May 2000, and there it sat on the court's docket for 9 months before they acted on it in February 2001. The Harris straw contributions show-up in Debra Lambert's campaign account on October 25, 26 and 27, 2000, just days before the November 7 election. That much we know.

Well, it turns out that there were five additional $1,000 straw contributions on October 27, 2000 to another candidate: Supreme Court candidate Larry Forgy.

Forgy was running for the Supreme Court against Justice James Keller who had just won an election the previous year to complete the unexpired term of Justice Robert F. Stephens. One year later, Keller finds himself in a general election match against Forgy. The meager public polling in that 2000 contest showed that with a month remaining, Forgy held a 3-point lead over Keller.

But why would Ross Harris funnel money to Larry Forgy's campaign? That makes no sense on the surface. After all, Forgy was a Republican from Logan County and the man that Harris spent a great deal of money and energy trying to destroy on behalf of his close friend, Paul Patton, in 1995. On the other side, Keller was a Democrat from nearby Harlan, a fellow mountain boy who had never crossed swords publicly with Harris (that we know).

Nevertheless, on October 27, 2000 (three days after the final pre-election finance report), Larry Forgy received $1,000 contributions from Cheryl Hall, Delmer Hall, Alberta Turner, Geraldine Ward, and M. Parrish. All lived in McDowell, except for Parrish who lived in Pikeville.

Do any of those names sound familiar? They should. That same day, Debra Lambert received $1,000 from Neil Turner, the day before (October 26) she received $1,000 from Steven and Janet Hall, and the day before that (October 25) $1,000 each from Brian and Jerri Turner.

In fact, in between October 25 and the November 7th election, both Forgy and Keller received ten contributions each of $1,000. Nine of Forgy's contributions came from Eastern Kentucky. None of Keller's did.

On November 7, James Keller defeated Larry Forgy by a very unexpected 58-42 margin, surprising everyone including both Keller and Forgy, since internal polling had shown this race to be very close up to the end.

What happens next is quite interesting. In the now famous February 2001 3-3 vote by the Kentucky Supreme Court to deny review of Elk Horn's appeal, Keller sided with Justices Cooper and Wintersheimer to grant review -- and against Chief Justice Lambert. And then in 2005, not only did Keller vote to deny Harris an extra $950,000 on top of his $14.5 million award, but he wrote the opinion of the court.

Did Harris know something in 2000 that made him believe that Keller wasn't going to support his position? Did someone take an informal head-count among the Supreme Court justices in mid-2000 which became apparent that, while three justices would deny review, they could not be sure what Justice Stumbo would do? Keep in mind that Stumbo did not recuse herself from the case until February 2001, well after the November election.

What we are left with is an even more unsettling fact pattern and one which seems to increase the probability that these contributions were not just a coincidence on Ross Harris' part, but rather a deliberate attempt to do whatever it took to secure the $14.5 million awarded him by the Floyd County jury.

We don't know whether Forgy knew about the contributions at the time and it's hard to make a case that Forgy did anything improper, because we can't judge how the money would have affected his decisions. He lost. It's nearly impossible to know at the time whether contributions in big money campaigns are from straw contributors. But whether a candidate should suspect something is amiss from their contributors is really on a sliding scale. The law holds judicial candidates to a higher standard over partisan political candidates on the money they can accept. Money coming in from outside a district in a local race is much more suspicious than money coming into statewide races. Donations made after the last pre-election campaign finance report should be looked at more carefully than those made beforehand (that why we have 24-hour reporting of large donations in the final days before an election).

To me, that's why straw contributions to statewide candidates like Mitch McConnell and Ben Chandler (who both received straw money) seem to be a much different issue than those that come in late to a small judicial race a hundred miles away which was a rout. It's all about the context. But more importantly, it's not really about the money. Campaigns are expensive and our political system requires that candidates raise it. The problem is what official actions that money causes. That is the corrupting influence that money has in political races -- especially non-partisan judicial races.

I will have much more to say and provide you in the coming days.

Posted by Mark Nickolas on Thursday, July 28, 2005 at 12:10

Rutherford-Harris rematch in November

Appalachian News Express: "Rutherford said his campaign is about the “scourge” of drugs in Pike County. He said the county must have a leader in the top position who will work with Sheriff Charles “Fuzzy” Keesee to form a county-wide task force to fight drug abuse."

Judges step down from Pike County lawsuit over political ads

AP Wire | 05/12/2006 | Judges step down from Pike County lawsuit over political ads: "Judges step down from Pike County lawsuit over political ads"

Inmates appreciate the Pike County Detention Center's drug treatment program

Inmates appreciate the Pike County Detention Center's drug treatment program

BY LEIGH ANN WELLS

STAFF WRITER

One of the main statements made by Pike County officials in their war on drugs is much of the crime committed here is linked in some way to drug abuse. Inmates with addictions at the Pike County Detention Center (PCDC) agree with this statement and thank a new program for helping them realize the extent of their problems.

PCDC inmates with addictions are currently in their fifth week of a six-month voluntary program recently implemented at the facility thanks to a $60,000 grant. Jailer Rodney Scott said that the program is a partnership between the detention center and WestCare of Kentucky designed to help inmates beat their addictions and change their outlooks as they prepare to re-enter society.

Scott explained that before the WestCare counselors began working with inmates, those who have addictions received needed care such as being transported to detoxification facilities, but were not privy to the range of care needed to fight addiction.

“They just did not have the extensive counseling needed to help with the problem,” Scott said.

Currently, 10 inmates - all male - are participating in the treatment program. Scott said there is no set criteria for an inmate to participate with the exceptions that they must have abused drugs in the past and recognize that they have a problem.

“They have to want to do it,” Scott said.

Scott and corrections Capt. James Tolliver said they have seen a real, positive difference in the program participants even though the program is in the beginning stages.

“Attitudes have changed. They seem sincere about what they're doing. They're caring and they watch out for each other,” Scott explained.

“They hang right together,” Tolliver added.

Tolliver explained that the program participants live together in one section of the jail's second floor.

Gary Ritchie, a WestCare counselor who works with the group, explained that the program is based on the therapeutic community concept. By living together, the participants recognize they have a common problem - addiction - and they work together to help one another through group counseling.

Ritchie said that WestCare's success rate for civilians participating in such programs through its Ashcamp facility have had a 48 percent success rate since WestCare opened its doors in August 2005.

The process breaks down a 12-step program so that they are easier for individuals to understand. Inmates also receive individual counseling and have group discussions about any situation that bothers them.

“I feel like they're doing real well,” Ritchie said, adding that the inmates have had no problem recognizing their addictions.

Inmates on the program are subject to a stiffly structured daily routine which begins at 7 a.m. and continues until approximately 11 p.m. During that time, they participate in their group therapy, perform chores around the detention center, take computer courses and GED classes, participate in Narcotics Anonymous meetings and attend church services, among other activities.

Substance abuse counselor Rodney Bentley said he and Ritchie work with inmates who have had narcotic problems in the past which have lead to their incarceration.

“If people don't admit they have a problem, there is nothing we can do,” Bentley stressed.

Bentley said all 10 inmates are doing well at this point in the program.

“I have nothing but good to say about the guys in our program,” he said.

The inmates themselves are also proud of the progress they have made and credit PCDC staff and their counselors for being supportive and helping them through the process.

The inmates, who were honest and forthcoming about their addictions, said they are serving time for offenses ranging from receiving stolen property to weapons possession and parole violations.

Since joining the program, the inmates said they have seen a change in their own attitudes, have a better outlook on life, are honest with themselves and others and have a whole new respect for other people.

“Definitely, our behavior towards everybody has changed,” one participant volunteered.

“It gives us all a lot of hope to be in this atmosphere,” another said.

The inmates said the program offers them an opportunity to explore their spirituality, examine themselves and think about how they want to proceed in life once they are released from the detention center.

“It opens many opportunities to us that were blocked before by our addictions,” an inmate explained.

The inmates agreed that the program stresses they must take responsibility for their lives and actions. Some said they have participated in rehabilitation programs in the past, but most were 30-day programs, the effect of which did not last long.

“Thirty days is just barely enough time to get on the right thought pattern,” one inmate stressed.

Tolliver told the inmates that he had noticed a difference in how they treat one another and others with whom they come in contact.

The inmates said they feel an enthusiasm to help one another. They said there is no animosity among their group and individuals have felt comfortable enough to open up and share secrets with one another.

“It has helped immensely,” one inmate shared. “You feel like you've helped yourself and you can go out and be a productive part of society. You can live, work and pay taxes like other people.”

“This is the most important thing I have done in my life.”

Former Judge Pleads Not Guilty To DUI Charges

WKYT 27 NEWSFIRST & WYMT Mountain News - Former Judge Pleads Not Guilty To DUI Charges: "Former Judge Pleads Not Guilty To DUI Charges"

ABC News: Personnel Investigation Haunts Ky. Goveror

ABC News: Personnel Investigation Haunts Ky. Goveror

Kentucky Governor's Pardon Deemed Valid, Gov. Ernie Fletcher's Sweeping Pardon in Hiring Probe Is Valid, Kentucky High Court Says - CBS News

Kentucky Governor's Pardon Deemed Valid, Gov. Ernie Fletcher's Sweeping Pardon in Hiring Probe Is Valid, Kentucky High Court Says - CBS News: "Kentucky Governor's Pardon Deemed Valid"

In Kentucky Hills, a Homeland Security Bonanza - New York Times

In Kentucky Hills, a Homeland Security Bonanza - New York Times: "In Kentucky Hills, a Homeland Security Bonanza"

Pike County, Kentucky, Sheriff

"861007, Pikeville, KY, The Courier-Journal, p1. Not a drug story, probably. Pike County, Kentucky, Sheriff Charles 'Fuzzy' Keesee 'misplaced' $300,000 in tax collections during his previous administration."


http://www.whatreallyhappened.com/RANCHO/POLITICS/MENA/wormscan.html

Former Lexington, KY, Police Officer Bill Canan's trial

"931019, London, KY, WSEK. Former Lexington, KY, Police Officer Bill Canan's trial started on 12 Oct. Today he took the witness stand and swore that he had never engaged in the trafficking of cocaine!! More to come, I expect. See 850912, 930409, 930716. He was eventually convicted on the cocaine trafficking and witness intimidation charges & not guilty on the weapons charge."

Harlan County Kentucky Jailor

"930806, Harlan Co, KY, WMKZ. Howard Taylor, Harlan County Kentucky Jailor, is accused of stealing two pounds of marijuana from the Sheriff's evidence room."

http://www.whatreallyhappened.com/RANCHO/POLITICS/ME

National Guard members plead guilty to padding their expense accounts in last summer's War on Drugs

"931104, Kentucky, KET-WAVE. Joseph Shawn Kelley and three other National Guard members of GMTF plead guilty to padding their expense accounts in last summer's War on Drugs."

Kentucky State Police Narcotic Officer Mark Lopez is indicted

"940312, Hazard, KY, WSEK. Kentucky State Police Narcotic Officer Mark Lopez is indicted on five charges of forgery. What he forged was another officer's signature on reports on how he used money which was supposed to be used for undercover drug buys. He was also reprimanded for taking home ('I didn't steal it! Honest!!') vehicles seized in drug raids."

Circuit Court Judge Larry Collins is sentenced

"931113, Whitesburg, Letcher Co, KY, WKYU. Circuit Court Judge Larry Collins is sentenced to five years for taking a bribe to protect drug dealers. Also some other official has been implicated. See 921123, 921218, 930820, 930824."

Middlesboro Policeman running a multi-state marijuana trafficking ring

"940506, Middlesboro, KY, KET. Middlesboro Policeman Garrett Lee Russell was given a postponement of his trial for running a multi-state marijuana trafficking ring."

Chief of Police Townsend is suspended following the strange death of drug dealer in Lexington

940504, Beattyville, Lee Co, KY, KNN. Beattyville, KY, Chief of Police Townsend is suspended following the strange death of drug dealer in Lexington who had implied involvement with the disappearance of marijuana from evidence."

Deceased drug dealer Irvine Shouse but didn't live long enough to tell that to a jury

"940727, Lexington & Beattyville, KY, WSEK. Deceased drug dealer Irvine Shouse (32) died 03 Apr 94 of acute cocaine and diamulid (sp?) (a strong cancer painkiller) poisoning. No fowl [sick] play is suspected! Shouse claimed that Beattyville Police Chief Townsend tried to sell him part of the 1600 marijuana plants which were disappeared from evidence and mysteriously reappeared in his car trunk, but didn't live long enough to tell that to a jury."

Kentucky man (25) pleaded guilty to selling marijuana within 1000 yards of a school sentenced to 8 months in jail

940712, Eastern Kentucky, WKYU, WMKZ. An unnamed Eastern Kentucky man (25) pleaded guilty to selling marijuana within 1000 yards of a school in the Mexican dilution connection. He was sentenced to 8 months in jail. The real target is Lee County Sheriff Douglas Brandenburg."

Sheriff Brandenburg is accused of importing cheap Mexican marijuana to adulterate his higher quality domestic product

940906, Pikeville, KY, WKYU. The trial of Lee County, KY, Sheriff Douglas Brandenburg is scheduled to start today in Pikeville. Sheriff Brandenburg is accused of importing cheap Mexican marijuana to adulterate his higher quality domestic product. 940906, Pikeville, KY, KET. George Nobel, Jr, of Breathitt County pleas guilty in the Mexican adulteration operation. He is the fourth of seven to plea guilty. He got seven years. Sheriff Brandenburg still maintains his innocence. 940907, Pikeville, KY, KNN. Lee County Sheriff Douglas Brandenburg is said to have taken payments of 'thousand of dollars per month' to protect the drug operations in his county, starting shortly after he was elected and ending in June 94 as his operation was taken down by federal action. 940909, Pikeville, KY, WKYU. Three more codefendants plead guilty in the Lee County Sheriff Douglas Brandenburg marijuana adulteration trial. 940909, Pikeville, KY, KNN. Lee County Sheriff Douglas Brandenburg is given a mistrial. The reason given is that his co-conspirators have all plead guilty, and it looks bad for him."

The drug trial of Middlesboro Officer Garrett Lee Russell

940912, London, KY, KNN, WSEK. The drug trial of Middlesboro Officer Garrett Lee Russell starts today. He is accused of three counts of dealing in cocaine, marijuana, and pain killers, 1 count of possession, 2 of use of a firearm in the commission of drug dealing. He was arrested in March in 'Operation Broken Shield', after a 20 month investigation. He is accused of also being a USER, using, dealing and letting his customers use in his cruiser. All of his co-conspirators have pleaded guilty , but this apparently is not sufficient for a mere city cop to be given a mistrial. 940916, London, KY, WSEK. Middlesboro City Police Officer Garrett Lee Russell claims that FBI Informant Benny Meyers gave him free cocaine, and then demanded that Orificer Russell supply him with other drugs. He carried a firearm during these drug transactions because it was part of his uniform. 940916, London, KY, WKYM. Middlesboro Kentucky City Police Officer Garrett Lee Russell is convicted of drug dealing charges, but not of the use of a firearm in the commission of a drug crime charges."

Lexington Policeman and cocaine dealer Bill Canan loses his appeal.

950304, Lexington, KY, WSEK. (Former) Lexington Policeman and cocaine dealer Bill Canan loses his appeal. He claimed that the search warrant was based on old information, and the evidence should be suppressed. Also his diary of cocaine transactions deciphered on videotape by a confidential informant held, even tho the informant was subsequently deceased. His 17 year 8 month sentence is said to stand. Also, Lexington's biggest (for a while) cocaine haul resulted from the arrest of one of the criminals from this weeks crack dealer collection."

Judge-Executive James Stumbo, son of Floyd County Judge-Executive John Stumbo, pleads guilty to drug dealing

950218, Floyd Co, KY, WSEK. Deputy Judge-Executive James Stumbo, son of Floyd County Judge-Executive John Stumbo, pleads guilty to drug dealing."

heriff Douglas Brandenberg and two co-conspirators plead guilty

950206, Beattyville, Lee County, KY, KNN. The day before their trial in Pikeville, Lee County Sheriff Douglas Brandenberg and two co-conspirators plead guilty on one charge of obstruction of justice in interference with a Federal Drug Investigation. But they are now NOT guilty on charges of taking bribes to protect the illegal drug business."

Sheriff Douglas Brandenberg goes to federal prison for nine months for interfering with a drug investigation

950502, Beattyville, KY, WKYU. Lee County Sheriff Douglas Brandenberg goes to federal prison for nine months for interfering with a drug investigation. But he got off on the drug trafficking charges."

Six time murderer and sometimes FBI Special Informant Robert Foley has another murder to his credit

950422, London, KY, WSEK. Six time murderer and sometimes FBI Special Informant Robert Foley has another murder to his credit. Robert Tucker, beaten to a pulp by Foley has finally died from his injuries. Also there is a victim of another assault in 89. Foley demands a speedy trial, but the judge says that six death sentences are sufficient."

Deputy Sheriff Larry Smith sentenced to 80 months and a $25,000? fine for marijuana distribution

950531, Breathitt County, KY, KNN. Breathitt County, KY, Deputy Sheriff Larry Smith sentenced to 80 months and a $25,000? fine for marijuana distribution."

Kentucky State Police raided the home of former Kentucky Supreme Court Judge Dan Jack Combs and produced 4 ounces of processed marijuana

950819, Floyd County, KY, WKYU, KNN. Kentucky State Police raided the home of former Kentucky Supreme Court Judge Dan Jack Combs and produced 4 ounces of processed marijuana, one marijuana plant growing in a container, rolling papers, pipes, and scales. Judge Combs says that he has no idea of how such things might have gotten into his home. Really! Judge Combs retired in 1993 because of a 'memory disorder'. By 950822, His Honor Combs has decided that State Police have framed him by planting the evidence on him. More in WORMSCAN.&"

Pike County, KY, Judge Charles Huffman III pleads guilty to extorting drugs from Vivian Adams. His Honor Huffman demanded loracet (lorazepam??) for qu

950822, Pikeville, KY, WSEK. Pike County, KY, Judge Charles Huffman III pleads guilty to extorting drugs from Vivian Adams. His Honor Huffman demanded loracet (lorazepam??) for quashing drunken driving arrest. His Honor is subject to a twenty year prison sentence."

Pike County, KY, Judge Stearns pleads guilty to avoid a second trial

960201, Ashland, KY, WEKU. Pike County, KY, Judge Stearns pleads guilty to avoid a second trial. The jury hung in the first trial. The prosecution promised to play more tapes of Hiz Hon'her dealing drugs. It is undisclosed exactly what was pleaded. Stearns was charged with one count of conspiracy to traffic in narcotics, three counts of cocaine distribution, and one count each of possession and distribution of pain killers."

Circuit Judge Randall Starnes is on trial for conspiracy and drug trafficking in cocaine and pain killers

951204, Pikeville, KY, KNN, WSEK. Former (removed from office in 84 for drug abuse) Circuit Judge Randall Starnes is on trial for conspiracy and drug trafficking in cocaine and pain killers. Star witness is Judge Starnes' drug supplier, former Judge and Compromised Informant Charles Huffman, who has already been sentenced for drug trafficking. Judge Starnes is on tape bragging about snorting coke with Governor John Y Brown, Jr."

Judge Starnes saying that State Representative Kelsay Friends, Jr started him on cocaine.

951206, Pikeville, KY, WSEK. Another tape has Judge Starnes saying that State Representative Kelsay Friends, Jr started him on cocaine. Rep Friends denies that he ever did cocaine, and claims to have no idea of why Judge Starnes would perpetuate such an obvious falsehood. Stay tuned for the Jury's opinion. 951207, Pikeville, KY, WSEK. Judge Starnes is given a mistrial. Some jurors thought that the Feds had overstepped their bounds by blackmailing Judge Hoffman. The Other Judge agreed to be a Compromised Informant after he was caught extorting drugs from a client. Other jurors thought that Judge Starnes should have known better than to sell cocaine to someone who had just been busted."

MENA: GOVERNMENT TIES TO DRUG RUNNING ARE COMMON

WORMSCAN Updated: 960420

(c) Copyright 1980, 1996, by David P Beiter, proliferate freely.

WORMSCAN is a collection of news items concerning the involvement
of police, lawyers, judges, politicians, bankers, prison guards,
spooks, and other social predators in the enormously profitable
illegal drug business.

What had at first appeared to be merely a can of worms
has, upon closer examination, proven to be a barrel of vipers.

No attempt has been made to note every news item. These are
simply those cases which have come to my attention in the
everyday news. Note that many sources are radio news reports,
and thus the spelling of many names is undoubtedly bogus.

Disclaimer: This material is presented for educational purposes
only. I am not trying to sell you any political agenda here. I
am not even suggesting a conspiracy theory. I don't care if you
don't believe that anything like this could happen here. I won't
ask you to construct a testable hypothesis (whatever THAT is).
All I need is for you to see it as an interesting conjecture.
That is sufficient.

Additions, comments, criticisms, clarifications, or corrections
(even mispellings and typograhpical errors) should be directed
to: David P Beiter, Rte 572 Box 8460, Mon"

US KY: Felons On Ballots In Four Eastern Ky Judge, Sheriff

US KY: Felons On Ballots In Four Eastern Ky Judge, Sheriff: "US KY: Felons On Ballots In Four Eastern Ky Judge, Sheriff
URL: http://www.mapinc.org/drugnews/v02/n221/a05.html
Newshawk: Chip
Rate this article Votes: 0
Pubdate: Sat, 9 Feb 2002
Source: Lexington Herald-Leader (KY)
Copyright: 2002 Lexington Herald-Leader
Contact: hleditorial@herald-leader.com
Website: http://www.kentuckyconnect.com/heraldleader/
Details: http://www.mapinc.org/media/240
Author: Lee Mueller

FELONS ON BALLOTS IN FOUR EASTERN KY. JUDGE, SHERIFF RACES

WEST LIBERTY - At least four former Eastern Kentucky sheriffs removed from office on criminal charges are running for office again in the May primary.

Political scientists say the fact that so many disgraced officeholders still feel they are electable raises questions about politics, pardons and even voters in rural Kentucky.

'Obviously, nothing like this would fly in Lexington,' said University of Kentucky professor Bradley Canon. 'It might in Chicago, which is noted for its corruption, but ... Fayette County is too middle class to elect people like that.'

Roger Benton, 55, a former three-term Morgan County sheriff convicted in federal court in 1987 of accepting $10,000 to protect drug deals, has always maintained his innocence and says he just wants voters to give him a second chance.

Three other for"

The Carpetbagger Report » Blog Archive » The Appalachian Watergate

The Carpetbagger Report » Blog Archive » The Appalachian Watergate: "The Appalachian Watergate
Posted 9:46 am | Printer Friendly

In 2003, Ernie Fletcher became the first Republican to win the Kentucky governorship since 1967. At this rate, he might be the last one for a while.

Earlier this year, documents, including notes and emails, came to light that showed Fletcher's hiring decisions were based almost exclusively on partisanship and not individual qualifications — you got a job in state government if you're a Republican, whether you deserved it or not.

Attorney General Greg Stumbo (D) investigated, believing that the practices violated state employment laws. Last month, a grand jury came to the same conclusion. Among those indicted this week were Fletcher's deputy chief of staff, an executive director in Fletcher's Transportation Cabinet, and Fletcher's transportation administrative services commissioner. The charges range from violating applicants' civil rights, to political discrimination, to multiple counts of criminal conspiracy.

Yesterday, in response to the growing scandal, Fletcher issued sweeping pardons for all of his cohorts, before formal criminal charges could be brought against them.

On the eve of an appearance before a grand jury investigating his administration's hiring practices, Gov. Ernie Fletcher granted a blanket pardon on Monday night to curren"

A former state senator and his wife were found guilty Monday of mail fraud for submitting false campaign reports in an eastern Kentucky election fraud

November 01, 2004
Kentucky pol convicted in election fraud case

AP reports: A former state senator and his wife were found guilty Monday of mail fraud for submitting false campaign reports in an eastern Kentucky election fraud case.

John Doug Hays, 60, and his wife, Brenda Hays, 47, were acquitted on a separate charge of conspiracy to commit mail fraud and buy votes stemming from the race for Pike County district judge in 2002.

A federal jury in the monthlong trial deliberated 27 1/2 hours over four days before returning the verdict. ...

Prosecutors claimed Hays was a key figure in the election fraud case while defense attorneys contended he was the unwitting beneficiary of a wayward political activist. -- Jury finds former state senator guilty of mail fraud in election (AP via Kentucky.com)

Posted by Ed at 10:27 PM | Permalink | TrackBacks (0)"

Votelaw: Corruption charges Archives

Votelaw: Corruption charges Archives: "May 04, 2005
Kentucky: What is 'vote hauling'?

The Cincinnati Post carried this editorial in January 1998: For those unfamiliar with the practice, money - $50 to $100 a day - is paid by campaigns to individuals to ''haul'' voters to the polls. Payment must be made by check and a report must be made. Outside of that there are no other restrictions.

More often than anyone knows or would ever admit, those paid to haul voters actually only hauled themselves or maybe their spouse to the polls to vote. In some cases, people who were paid for vote-hauling in 1996 didn't even own a car or have a driver's license. The reality is ''vote-hauling'' is just legalized voter fraud - the money buys votes.

In some parts of the state, like Eastern Kentucky and in other rural areas, vote hauling is a tradition.

But Republicans note that vote hauling was a major thrust of the Democrats' get-out-the-vote effort in Jefferson County during the 1995 gubernatorial election. That effort in the Louisville area remains under investigation by a grand jury. -- Editorial: Thinly disguised fraud

Posted by Ed at 06:28 AM | Permalink | TrackBacks (0)
May 03, 2005
Kentucky: Senator to be indicted for 'vote hauling'

AP reports: A federal grand jury is expected to indict a Democratic Senate leader from eastern Kentucky for"

May 05, 2005 State Senator indicted for vote fraud

May 05, 2005
Kentucky State Senator indicted for vote fraud

AP reports: State Sen. Johnny Ray Turner and two others were indicted Thursday for mail fraud and conspiracy to rig his 2000 campaign with bought votes and phantom contributors. ...

The indictment alleges Turner and his coconspirators funneled money from Harris through straw contributors and illegally paid people to vote and hid it by claiming to pay them for driving voters to the polls during the 2000 Democratic primary.

The charges also allege Turner filed false reports to the Kentucky Registry of Election Finance.

'Vote hauling,' as it is known and widely practiced, has long been acknowledged as a way to influence elections. But paying vote haulers is not illegal in Kentucky.

[U.S. Attorney George F.] Van Tatenhove said Turner's campaign never expected or received legitimate services for the payments. -- AP Wire | 05/05/2005 | State senator indicted for mail fraud relating to campaign

Now we see that Turner was not accused of 'vote hauling' but of NOT vote hauling.

July 22, 2005 Kentucky county executive serves from jail

July 22, 2005
Kentucky: county executive serves from jail

AP reports: A conviction and 16 months in federal prison for vote fraud and evidence of violation of campaign finance laws are not enough to force Knott County Judge-Executive Donnie Newsome out of office - at least not yet.

The Kentucky Court of Appeals on Friday said Newsome's opponent in the 2002 Democratic primary waited to long to challenge the outcome.

Mike Hall, who lost to Newsome defeated in the bitter 2002 Democratic primary by 520 votes, filed suit to have Newsome removed under a normal election challenge suit. But a unanimous three-judge appellate panel said the lawsuit was filed too late. ...

[Judge Rick] Johnson noted that after Newsome was incarcerated, he began cooperating with federal authorities and testified that he received $8,000 in campaign contributions that were not properly reported. -- AP Wire | 07/22/2005 | Appeals court: Convicted judge-executive may stay in office

US KY: Killing Raises Fears Of Drug Corruption

US KY: Killing Raises Fears Of Drug Corruption

Common Sense for Drug Policy: Corruption, An Inevitable By-Product Of The War On Drugs

Common Sense for Drug Policy: Corruption, An Inevitable By-Product Of The War On Drugs

Economist.com

Economist.com

ESI Telephone System

ESI Telephone System

Thoughts in Solititude

Thoughts in Solititude

His Servant

His Servant

Tracking Sex Offenders: The Impact of Megan's Law

Tracking Sex Offenders: The Impact of Megan's Law

Megan's Law

Megan's Law

Sentencing Law and Policy: Intriguing report about sex offenders

Sentencing Law and Policy: Intriguing report about sex offenders

NPR : High Court Weighs 'Megan's Law' Issues

NPR : High Court Weighs 'Megan's Law' Issues

Megan's laws start to take effect

MEGAN'S LAWS

Each state's version of Megan's law varies.

In Kentucky and Ohio, sex offenders are assessed by the risk that they may strike again. They are put in one of three levels of risk:

• In Ohio: http://www.drc.ohio.gov/ “Sexual predators,” the worst of three levels of risk for reoffending, must re-register every 90 days — for life — in the county where they live. The next category, “habitual offenders,” must register every year for 20 years, but “sexual-oriented offenders” register annually for 10 years. Written notice of predators and some habitual offenders is sent to police, neighbors and schools.

• In Kentucky: The sex offender registry is coming to the Kentucky State Police Web site. Now, all offenders must register annually for 10 years, regardless of their assessed levels of risk. Information about those designated most likely to reoffend goes to neighbors. Information on those deemed least likely to commit another sex offense goes only to the sheriff's department in the county where the offender moves.

• In Indiana: www.ai.org/cji/html/sexoffender.html “Sexual predators” register annually until a judge says they can stop. Others must register every year for 10 years. Written notification goes to schools, state agencies dealing with children and day-care facilities. Information is available to the public upon request.

Wednesday, April 12, 2000
Megan's laws start to take effect
Police agencies support them, despite burdensBY Jane PrendergastThe Cincinnati Enquirer
Megan Kanka FLORENCE — The school bus travels down Grand Avenue every weekday morning and afternoon, passing by the old stop where kids used to congregate and wait.
Now the driver stops at every house, letting children on and off as close to their front doors as possible. It's the best way school officials say they can guarantee the children's safety from a convicted molester who lives on that street.
Parents clamored for the bus stop change when they were told, as required by Kentucky law, that a man judged a high-risk sex offender lives nearby.

“I found out there was going to be a sex offender living on our street when the TV reporters came the day he was released,” said parent Debbie Daly, who lives on Grand Avenue where the bus stop is ignored now. “It's nice that they drop the kids off now. I know a lot of people are happy with that.”
The bus stop change is a small example of the practical effects of sex offender notification rules in Tristate communities.
Generally, law enforcement officials and children's advocates applaud sex offender laws, saying media attention to convicted offenders and children's safety helps make parents more aware of the potential for danger and better able to protect their kids.
But the recent laws have generated unforeseen problems:
Defense lawyers continue challenging the laws in court as unfair and unconstitutional.
Neighbors who are notified often clamor for more information and better protection.
The laws impose sometimes costly burdens on sher iff's departments, which must track sex offenders on annually, or, in Ohio, quarterly.
In Kentucky on Tuesday, Gov. Paul Patton signed legislation to put all sex offenders on a Web site maintained by Kentucky State Police. That will take some of the burden of notification off sheriffs.
Boone County Sheriff Mike Helmig worked to change a bus route when a sex offender moved to Florence.(Patrick Reddy photo) ZOOM Sex offender registration and notification laws are a few years old in most states. They are called Megan's Laws, for a 7-year-old New Jersey girl, Megan Kanka, who was raped and killed in 1994 by a neighbor who was a convicted sex offender.
The ensuing neighborhood outrage prompted federal officials to require states to start registration programs or lose access to federal grants. Now, every state has a law requiring sex offenders to register with authorities when they are released from prison.
Some laws are tougher than others. In Ohio, offenders judged most likely to re-offend must be re-registered, photographed and fingerprinted every 90 days.
Ohio's sex offender notification started in 1997. Kentucky was among the last in the country to enact a Megan's law. The commonwealth's version just passed its first birthday.
Now registered in the Tristate: more than 500 convicted sex offenders and predators. And the number keeps growing.
How big the list will be isn't yet known. The FBI is starting to compile a national database, but hasn't finished it yet. Some estimates put the number at more than 500,000. The state of California alone has 75,000 registered. That's up from zero five years ago, when the first Megan's laws went into effect.
Washington specifies only that such convicts register with law enforcement. It does not dictate how that informa tion should be used to notify those in the community most likely to be affected.
Often, notice doesn't suffice. Neighbors of the child molester in Florence, for instance, wanted more. They demanded protection for their children. The sheriff and school officials listened, and changed the bus route.
Lack of a single national mandate for sex offender notification means individual municipalities can tinker with the process.
For instance, some Northern Kentucky sheriff's deputies take the extra step of going door-to-door to tell neighbors about an offender's plans to move nearby. Some Ohio counties, including Hamilton and Warren, have put offenders' names, faces and addresses on their Web sites.
“It's our responsibility to help people protect their children,” said Boone Sheriff Mike Helmig. “We should be doing that however we can.”
Defense attorneys continue to challenge the notification provisions as unfair and unconstitutional because they extend punishment beyond the prison sentence.
Scott Greenwood, a Cincinnati civil-rights lawyer, said the notification parts of the laws invite vigilantism. The political popularity of the laws, however, makes them very difficult to challenge, he said.
“All you have to do is put the words sex and children together and you can pass any law,” he said.
Also under fire are the ways states determine the risk that a sex offender will offend again. Judges make that determination, taking recommendations from the prison system to decide if an offender is at a low, moderate or high risk.
Boone Circuit Judge Jay Bamberger questions Kentucky's assessment system because prison evaluations have made an inmate “sound like Jack the Ripper” but rated the convict a low or moderate risk.
Judge Bamberger acknowledged that he rates as many offenders as possible at the highest risk level because lower ratings have fewer requirements for registering and offer less information to the public.
With some offenders mandated to register for life and more getting out of prison, the numbers of convicts who must be scrutinized post-prison will continue to grow.
Last year, Hamilton County deputies registered or re-registered people more than 500 times — an increase of more than 160 percent from the year before. Because Ohio law requires new photographs and fingerprints of the worst offenders every 90 days for life, the workload can pile up.
“Someday, it's going to get to where we can't do it all,” said Steve Barnett, a spokesman for the sheriff.

Megan's laws start to take effect

Megan's Law: And justice for some?

Megan's Law: And justice for some?

Derek's Rantings and Musings: Megan's Law Nonsense

Megan's Law Nonsense

So I read this on CNN.com today. Basically, this sex offender was convicted, did his time, and is now released from custody after paying his dues just like the framers thought it should be.

Except that now, thanks to Megan's Law, he has literally been run out of four states, been filmed by TV news choppers, been bought a ticket out of town by the police department, people putting up signs on the fence of his property warning people to stay away and to lock up their women, etc.

I can respect the desire of a parent to know "who that weird guy is who lives across the street", but ya know what? In a free society, it's none of your goddamn business who he is.

Here's the sick thought of the day: If people stop hounding him (or others like him) maybe he might be able to put the past behind him and move on. Instead, he's reminded day in and day out of what he's done by people who don't have anything to do with it. Eventually, they'll push him to the breaking point, and he'll go do it again not because "he's incorrigible", but because the only place he's not hounded and stalked by citizens with no life is when he's in an 8x8 with three square meals a day.

Are these people actually protecting their neighborhood, or just ensuring that something will happen in the future?

Posted by Dredd on January 17, 2003 11:28 AM Permalink
Comments
He's a convicted felon. He forfieted his rights when he molested the child.
Period.
Posted by: ric January 17, 2003 12:40 PM
He doesn't forfeit his rights. Even IN prison, he doesn't forfeit his rights.
Posted by: Derek January 17, 2003 12:50 PM
However, I should have the right as a free, law-bidding citizen to be aware there is a pedophile living across the street?
Other crimes I might make accomodations for. "Do the crime, pay your time." However, an individual who would molest a child doesn't quite have their wiring straight upstairs. I'm not sure that it's a condition that could be reformed.
So here's your papers and Scarlet Letter. :-)
Posted by: Chris January 17, 2003 01:00 PM
Who a person is is THEIR business, not yours. You don't have some right to know the criminal history of that person just like they don't have some right to peruse YOUR personal background.
If we can't respect the privacy of other people, how can we expect others to respect OUR privacy.
Posted by: Derek January 17, 2003 01:19 PM
But is something that is a matter of public record really a private matter?
And do you have the same respect for the rights of Spammers? :)
Posted by: Dan Isaacs January 17, 2003 02:26 PM
There's a world of difference, I think, between the "public record" of "if you want to find out about John Doe, you go digging through records and see what you can find" and the "public record" of "If you're John Doe, you have to register immediately upon arrival in a new town", and in some areas even take out a public notice in the paper announcing your arrival, etc. The former is reasonable, the latter, IMHO, is not.
And I've never gone out of my way to dig up dirt on spammers. They're scumbags who crawl out from and back under rocks at leisure. Personal info isn't very helpful in that regard. :)
Posted by: Derek January 17, 2003 02:31 PM
I concede that difference. I'm not so sure people would not just develop a system of identifying and tracking these guys, though. In the absence of the laws requiring him to register. I'm not sure his life would be much different.
But I agree these laws go too far. Either they have paid their debts or they haven't.
Has the Court reviewed these statutes? Of course, it's not like we expect rational decisions from them anymore.
Posted by: Dan Isaacs January 17, 2003 02:50 PM
I see where you're arguing this, but don't forget about the privacy (amongst other things) of the kid who was violated in the first place. Or how about his family's privacy. I see it that as soon someone *chooses* touch a kid, the forfeit they're right for privacy.
Posted by: Chris January 17, 2003 03:11 PM
Yeah, but Chris isn't - in theory at least - the scumbag's "time in prison" supposed to be the punishment for *that* issue?
I understand completely the belief that the victim (child or otherwise) has had their privacy -- hell,their BODY -- violated, but so the theory goes anyway, that's what the jailtime is supposed to be the punishment for.
Posted by: Derek January 17, 2003 03:20 PM
Derek, "in theory" I see your point. But understand that my opinion is thatwe have to draw a hard, crisp line in the sand SOMEWHERE! Let's hold somepeople accountable for their actions well beyond what the law says.
I see so much "softening" in the fabric of society that it makes me wonder what cultural taboo we will readily accept next? Spin the wheel..click..click...click...Wow! It's cannibalism! But let's not blame the cannibal because, "Hey, he's the victim of low income and a large apetite." And really folks, isn'tnecrophilia a victimless crime?
My wife and I don't have kids yet, and outside of an incident involving a babygoat at the petting zoo, I myself have never been molested. Perhaps I'm shouting in the dark here, but it seems to me like we need radio-tag these people Bullwinkle-style! These aren't the type of folks we want falling of the radar screen.
Anywho, I'm enjoying your blog Derek.
Posted by: Chris January 17, 2003 04:10 PM
I don't think you can ever try to hold someone accountable BEYOND what the law says. That's the whole point of there being laws in the first place, isn't it? To define the bounds the society lives within?
I'm not saying folks should have to "accept" the guy's perversion or what-have-you. I'm just saying that "he's paid his debt, he should be left alone now and not treated as though he's about to commit a crime any second now".
And I wouldn't bring up that goat incident... ya never know what you might be accused of next. :-)
Posted by: Derek January 17, 2003 04:15 PM
Interesting thoughts... on one hand, this guy has been severely harrassed, and something about that is not right. On the other hand, sex offenders (particulary pedophiles) seem to have a very high recalcitrancy rate, and the damage they do when they commit a crime is far different from a guy who holds up a store for money. I'm not entirely sure why the laws are set to allow them out so quickly, but I understand the purpose of Megan's Law - frankly, _I'd_ want to know if a person convicted of that kind of crime lived in my neighborhood. Doesn't mean I'm going to run him out of town, but at least I'll be aware of and be able to take appropriate precautions with my child.
Perhaps the laws themselves need to be changed? (I won't even get into what I _think_ they should do with pedophiles - somehow, I don't think it would be legal in the US...)
Posted by: Mark January 17, 2003 08:48 PM
I'd like the Board of Directors of Enron circe 2001 to die horribly painful and slow deaths. But that's a peronal want. Not one I'd advocate the legal system pursue.
Posted by: Dan de Isaacs January 17, 2003 09:13 PM
**Eventually, they'll push him to the breaking point, and he'll go do it again **
..and I'm sure that's the defense he'll use when he gets caught again, then he'll sue for millions stating Megan's law is unconstitutional, and probably win, then we'll have a Rich sex offender living in the community.
No, I don't think the guy should be hounded, but if he were to move into my neighborhood, I'd want to know, so I can take the necessary precautions.
Personally I think we should have two sets of laws, one for law abiding citizens, and one for criminals. Seems kind of stupid that criminals should benefit form the same rights as one who doesn't break the law. Besides, any one who harms a child, shouldn't be allowed to see the light of day.
Posted by: Lynne January 18, 2003 08:27 AM
"Besides, any one who harms a child, shouldn't be allowed to see the light of day."
So, the guy who's convicted of statutory rape at 16 of his 15yr 11mo girlfriend should spend the rest of his life in hell?
And yes, this does happen...
Posted by: Brian January 18, 2003 12:16 PM
I don't think we're talking about that kind of crime - where do you live anyway? Most statutory rape laws are written with age ranges to avoid that very scenario.
In my mind, when we're talking about people harming children, we're talking 20+ adults doing things to young children (10-12 minus).
Posted by: Mark January 19, 2003 04:53 AM
Sure, Derek, he's paid his debt for *that* crime. But it's a trust issue. History has taught us that child moleters are, more often than not, serial and perepetual child molesters.
It's not so much of an effort to violate his rights as it is to point out that "here's a man that can't be trusted near children."
It's not intended to be punishment. The payment was paid for his past crimes.
Posted by: ric January 20, 2003 04:50 PM
So what you're saying, Ric, is "too bad, buddy, we as a society are going to punish you for stuff you haven't even done yet".
I think I've seen this before in a movie somewhere
"...Positive for Howard Marks! Mr. Marks, you're under arrest for the future murder of Ms. Sarah Marks"
Sorry, I don't care the consequences, punishing people for stuff they haven't even done yet is something society simply should not do.
Posted by: Derek January 20, 2003 04:59 PM
Nice comeback!
Simple solution - fix the laws so pedophiles don't walk out of prison so quickly. The damage they do is severe - IMO, they are a menace. They are, after all, preying on the weakest, most vulnerable segment of our society.
Posted by: Mark January 20, 2003 05:23 PM
That I don't have a problem with. Better still is to minimize the criminal aspect of it (don't scream, wait!), and increase the "pscyhiatric problem" aspect of it. People can be held in psychriatic prison for damn near eternity if they're considered to pose a risk to people on the outside.
We're conditioned as a society to detest "not guilty by reason of insanity", but isn't it better if we accept that as the compromise that enables us to determine "yes, this person is a risk"?
The problem is that without that insanity bit, it's a simple criminal matter that you have to eventually let them out of jail. And you can't take too lightly the condition Brian describes. Not all states are like NY in that they have the "phased" statutory-rape statutes. For some states (most, actually), it's simply "is (age >N)" and if not, it doesn't matter if the boy and girl are two days different in age, the guy is going up for a sexual offense of rape. That's not necessarily something you want to brand someone with, in the same way as you would your standard pedophilia style statutory rape, but how do you differentiate the difference?
Posted by: Derek January 20, 2003 05:33 PM
No, it's NOT punishment. It's caution.
That's like saying seatbelts are punishment for wrecks you haven't caused yet.
Posted by: ric January 22, 2003 11:07 AM
What about people or persons that have committed a "sex offender" crime that is not physical in nature, ie. peeing at the Savannah's St. Patty's day parade...is that an offense that needs the exhaustion of our legal "experts" to register as an offender for life??! How about the thousand or so spring breakers that show tits n ass?? You can buy the video on TV just ask Snoop Doggy dog, Mardi Gras...do they still throw out the beads to those who show?? Oh and can we forgive the man on the NIKE commercial?? or should he too be required to register and persecuted for life. Should he be required to have their personal information on every sex registry in the country? Hey grandma, why are we at the police station? You mean to tell me that 30 years ago when you mooned so and so and spent a week, month, or year in jail you are still required by law to register as a SEX OFFENDER??? PUL-EASE!! What has happened to life, liberty, and the pursuit of happiness? I cannot see this as anything but double jeopardy. If you have served the time, do you not have a right a "constitutional" right to let the past be the past and have a hope for a future??? I hope that any 70's streakers are not still around, hmmm....I wonder if John Lennon would be rolling over in his grave if his memory fell into a catagory as STUPID as this. For a country who finds itself so politically correct this sure seems like a law that never allows a person to have a normal life again, you would be better off murdering 10 people than peeing in public! At least murderers can have a chance at a normal life somewhere down the line. Perhaps a question to Bible scholars out there, would Noah have to be a sex offender register by today's standards....OMG what about LOTT???
Posted by: radran March 14, 2003 07:39 AM
Can someone please tell me the difference between a man on the sex offenders list for raping a girl and she was brutally beaten.
Another man on the list because his ex-wife twisted the story and said he sodomized her daughter. He almost did something wrong but he stopped and did not penetrate her, or touch her in any way. (Consenual situation) Then he was later charged with 2nd degree sodomy because of a bad divorce. This girl was his step daughter and she was very forward/flirty/teasing even his own family/mother/sister noticed it and warned him to stay away from her, then after he had been repeatly physically abused and mentally abused by his ex-wife, whom liked to brag to him about affairs she was having while he was away working. His ex wife threatened him and said, if he divorced her, she would make his life a hell. His spirit was broken down , he was terribly depressed and just wanted to be loved and here was the very mature 15 year old girl offering it to him. I am talking about two separate men and situations here. Should both the violient rapist and the depressed man be on the same sex offender's list.
Posted by: kim June 11, 2003 01:42 PM
I flashed my 15 yr old stepdaughter in 1997, then immediately admitted myself to the VA mental health facility. The social worker dutifully involved DFACS. I pled guilty to Child Molestation, served 2 years in prison, and was released in 2001 without any form of probation, parole, or other restriction. I have returned to my former neighborhood, and maintain daily contact with the family of the victim (my step daughter). I can't get hired, and today my apartment manager has banned me from the property, citing other tenants' concerns for their childrens' safety. Georgia doesn't have a tier system whereby they could distinguish between a low, medium, or high risk individual.I'm being denied the right to subsist and coexist peacefully in my society.I'm going to the DA's office today to file charges. Please understand my individual plight.
Posted by: anonymous in Atlanta December 23, 2003 01:14 PM


Derek's Rantings and Musings: Megan's Law Nonsense

Fed-Soc.org - Criminal Law & Procedure Practice Group

Fed-Soc.org - Criminal Law & Procedure Practice Group

FindLaw's Writ - Aronson: A New Supreme Court Case Will Test Alaska's Megan's Law

FindLaw's Writ - Aronson: A New Supreme Court Case Will Test Alaska's Megan's Law

freedomforum.org: New Jersey can't post sex offenders' addresses on Net

freedomforum.org: New Jersey can't post sex offenders' addresses on Net

freedomforum.org: Supreme Court to examine Megan's Law

freedomforum.org: Supreme Court to examine Megan's Law

Privacy and Megan's Laws

Privacy and Megan's Laws

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
THIRD DISTRICT
JULY TERM, A.D. 2003
FERMAN CARLOS ESPINDOLA, **
Appellant, **
vs. ** CASE NO. 3D02-1839
THE STATE OF FLORIDA, ** LOWER
TRIBUNAL NO. 01-38819
Appellee. **
Opinion filed October 22, 2003.
An appeal from the Circuit Court for Miami-Dade County, Manuel
A. Crespo, Judge.
Bennett H. Brummer, Public Defender and John Eddy Morrison,
Assistant Public Defender, for appellant.
Charlie Crist, Attorney General and Richard L. Polin and
Fredericka Sands, Assistant Attorneys General, for appellee.
Before COPE, GREEN, and FLETCHER, JJ.
PER CURIAM.
ON MOTION FOR REHEARING AND/OR
CERTIFIED QUESTION
1 We also deny the State’s motion to certify on grounds of
great public importance, but, as will be discussed forthcoming,
certify on grounds of inter-district conflict.
2
We deny the motion for rehearing,1 but in light of the recent
Supreme Court decisions of Smith v. Doe, 123 S. Ct. 1140 (2003),
and Conn. Dep’t of Safety v. Doe, 123 S. Ct. 1160 (2003); we
withdraw our prior opinion filed on January 15, 2003, and
substitute the following in its place.
This is an appeal from a final order declaring the defendant
a “sexual predator,” in accordance with section 775.21, Florida
Statutes (1999), the Florida Sexual Predator Act (“FSPA”).
Defendant, an individual who pled guilty to an offense which,
pursuant to the FSPA requires that he be designated a “sexual
predator,” claims that the statute is violative of procedural due
process and therefore unconstitutional. As further explained
below, we find FSPA to be unconstitutional because it fails to
provide minimal procedural due process. Accordingly, we reverse.
I. Facts
The facts of this case are undisputed. The defendant was at
a club on South Beach with the co-defendant (who is not a party to
this appeal) and the victim. The co-defendant brought the victim
a cocktail, of which she drank a little and the defendant finished.
A couple of minutes after drinking the cocktail the defendant fell
down unconscious. Soon after, the victim also became dizzy and
disoriented. All three left the club, and the co-defendant took
3
them to an unknown hotel and checked into a room. The victim then
also lost consciousness. When she regained consciousness, the
defendant and co-defendant were allegedly having sexual intercourse
with her.
The state charged both men with sexual battery of a physically
incapacitated victim by multiple perpetrators. The defendant pled
guilty in exchange for a withhold of adjudication and one year
community control followed by four years of probation. He has also
agreed to assist in the prosecution’s case against the codefendant,
which is still pending trial.
Although she remains afraid of the co-defendant, the victim
has testified that she does not fear the defendant, and even
considers him a friend. Based on this testimony, the state did not
seek the standard “stay-away” order in this case.
Since pleading guilty to multiple perpetrator sexual battery
would automatically result in the defendant being declared a
“sexual predator” under the Act, the defendant filed a motion to
declare the Act unconstitutional as violative of procedural due
process. The trial court denied the motion before completing the
plea and later entered an order finding the defendant to be a
sexual predator “subject to community and public notification.”
The trial court denied a motion to quash that order on the same
constitutional grounds, and this appeal ensued.
II. Structure of the Act
2 The “Megan’s Law” was named in memory of Megan Kanka, a
seven year old New Jersey girl who was sexually assaulted and
murdered by a neighbor twice previously convicted of sexual
offenses. See Doe v. Pataki, 120 F.3d 1263, 1265 n.1 (2d Cir.
1997). The New Jersey legislature enacted Megan’s Law to “identify
potential recidivists and alert the public when necessary for the
public safety.” See Doe v. Dep’t of Pub. Safety, 271 F.3d 38, 42
n.4 (2d Cir. 2001) (quoting Paul P. v. Farmer, 227 F.3d 98, 99 (3d
Cir. 2000)), rev’d, Conn. Dep’t of Pub. Safety v. Doe, 123 S. Ct.
1160 (2003).
4
Like every other state in the nation, Florida has enacted its
version of “Megan’s Law,”2 entitled The Florida Sexual Predator’s
Act. The Florida legislature has specifically found that:
(a) Repeat sexual offenders, sexual offenders who use
physical violence, and sexual offenders who prey on
children are sexual predators who present an extreme
threat to the public safety. Sexual offenders are
extremely likely to use physical violence and to repeat
their offenses, and most sexual offenders commit many
offenses, have many more victims than are ever reported,
and are prosecuted for only a fraction of their crimes.
This makes the cost of sexual offender victimization to
society at large, while incalculable, clearly exorbitant.
(b) The high level of threat that a sexual predator
presents to the public safety, and the long-term effects
suffered by victims of sex offenses, provide the state
with sufficient justification to implement a strategy
that includes:
1. Incarcerating sexual predators and
maintaining adequate facilities to ensure that
decisions to release sexual predators into the
community are not made on the basis of
inadequate space.
2. Providing for specialized supervision of
sexual predators who are in the community by
specially trained probation officers with low
caseloads, as described in ss. 947.1405(7) and
948.03(5). The sexual predator is subject to
specified terms and conditions implemented at
sentencing or at the time of release from
3 This section provides that:
5
incarceration, with a requirement that those
who are financially able must pay all or part
of the costs of supervision.
3. Requiring the registration of sexual
predators, with a requirement that complete
and accurate information be maintained and
accessible for use by law enforcement
authorities, communities, and the public.
4. Providing for community and public
notification concerning the presence of sexual
predators.
5. Prohibiting sexual predators from working
with children, either for compensation or as a
volunteer.
* * *
(e) It is the intent of the Legislature to address the
problem of sexual predators by:
1. Requiring sexual predators supervised in
the community to have special conditions of
supervision and to be supervised by probation
officers with low caseloads;
2. Requiring sexual predators to register
with the Florida Department of Law
Enforcement, . . . ; and
3. Requiring community and public
notification of the presence of a sexual
predator, . . . .
§ 775.21(3)(a)(b) & (e), Fla. Stat. (1999).
Under FSPA, the sole determination to be made by the trial
court, before designating a person a “sexual predator,” is whether
that person had the prerequisite criminal conviction. See §
775.21(5)(a)(1), Fla. Stat.3 See also State v. Curtin, 764 So. 2d
(5) Sexual predator designation.-- . . . an offender
is designated as a sexual predator as follows:
(a)1. An offender who meets the sexual predator
criteria described in paragraph (4)(c) who is before the
court for sentencing for a current offense committed on
or after October 1, 1996, is a sexual predator, and the
sentencing court must make a written finding at the time
of sentencing that the offender is a sexual predator, and
the clerk of the court shall transmit a copy of the order
containing the written finding to the department within
48 hours after the entry of the order[.]
4 A defendant does not even have to be present for the trial
court to impose the “sexual predator” designation. See Burkett v.
State, 731 So. 2d 695, 698 (Fla. 2d DCA 1998) (sexual predator
designation is a “collateral consequence” of defendant’s crime, and
defendant need not be present at hearing where designation is
imposed).
6
645, 647 (Fla. 1st DCA 2000) (trial court required to enter finding
of sexual predator status where defendant was convicted of crime
enumerated in statute). The act of delineating an offender as a
sexual predator is mandatory, and the trial court has no
discretion. See Kelly v. State, 795 So. 2d 135, 137 (Fla. 5th DCA
2001) (stating that “based on the unambiguous language of [FSPA]
and the clearly stated legislative intent, . . . the Act is
mandatory and affords no discretion to the trial judge to designate
an individual a sexual predator if the statutory criteria are
established.”).4 Indeed, the granting of the state’s motion to
have a defendant declared a sexual predator has been deemed merely
“perfunctory” by the courts. See e.g., Thomas v. State, 716 So. 2d
789, 790 (Fla. 4th DCA 1998).
Once an offender has been designated a “sexual predator,” the
5 The offender must personally go to the offices of these
departments to register.
6 This section provides in pertinent part:
(6) Registration.--
(a) A sexual predator must register with the
department by providing the following information to the
department:
1. Name, social security number, age, race, sex,
date of birth, height, weight, hair and eye color,
photograph, address of legal residence and address of any
current temporary residence, within the state or out of
state, including a rural route address and a post office
box, date and place of any employment, date and place of
each conviction, fingerprints, and a brief description of
the crime or crimes committed by the offender. . . .
2. Any other information determined necessary by the
department, including criminal and corrections records;
nonprivileged personnel, treatment, and abuse registry
records; and evidentiary genetic markers when available.
* * * *
(e) If the sexual predator is not in the custody or
control of, or under the supervision of, the Department
of Corrections, or is not in the custody of a private
correctional facility, and establishes or maintains a
residence in the state, the sexual predator shall
initially register in person at an office of the
department, or at the sheriff's office in the county in
which the predator establishes or maintains a residence,
7
registration and public notification requirements of FSPA are
automatically triggered. See § 775.21(6), Fla. Stat. An offender
must, within forty-eight (48) hours, register with the Department
of Law Enforcement (“FDLE”) or, alternatively, the sheriff’s
office, and with the Department of Highway Safety and Motor
Vehicles (“DMV”).5 See § 775.21(6)(a), (e), & (f), Fla. Stat.6
within 48 hours after establishing permanent or temporary
residence in this state. If a sexual predator registers
with the sheriff's office, the sheriff shall take a
photograph and a set of fingerprints of the predator and
forward the photographs and fingerprints to the
department, along with the information that the predator
is required to provide pursuant to this section.
(f) Within 48 hours after the initial registration
required under paragraph (a) or paragraph (e), a sexual
predator who is not incarcerated and who resides in the
community, including a sexual predator under the
supervision of the Department of Corrections, shall
register in person at a driver's license office of the
Department of Highway Safety and Motor Vehicles and shall
present proof of initial registration. . . .
7 FSPA specifically provides in pertinent part that:
(g) Each time a sexual predator's driver's license
or identification card is subject to renewal, and within
48 hours after any change of the predator's residence,
the predator shall report in person to a driver's license
office, and shall be subject to the requirements
specified in paragraph (f). The Department of Highway
Safety and Motor Vehicles shall forward to the department
and to the Department of Corrections all photographs and
information provided by sexual predators.
Notwithstanding the restrictions set forth in s. 322.142,
the Department of Highway Safety and Motor Vehicles is
authorized to release a reproduction of a
color-photograph or digital-image license to the
8
Upon registration an offender must provide their name, age, race,
sex, date of birth, height, weight, hair and eye color, a
photograph, address of legal residence, address of any current
temporary residence, “a brief description of the crime or crimes
committed by the offender,” and genetic material.
FSPA authorizes the DMV to give the offender’s photograph to
FDLE for purposes of public notification,7 and also requires FDLE
Department of Law Enforcement for purposes of public
notification of sexual predators as provided in this
section.
§ 775.21(6)(g), Fla. Stat.
8 Specifically, this section provides that:
(7) Community and public notification.--
(a) Law enforcement agencies must inform members of
the community and the public of a sexual predator's
presence. Upon notification of the presence of a sexual
predator, the sheriff of the county or the chief of
police of the municipality where the sexual predator
establishes or maintains a permanent or temporary
residence shall notify members of the community and the
public of the presence of the sexual predator in a manner
deemed appropriate by the sheriff or the chief of police.
Within 48 hours after receiving notification of the
presence of a sexual predator, the sheriff of the county
or the chief of police of the municipality where the
sexual predator temporarily or permanently resides shall
notify each licensed day care center, elementary school,
middle school, and high school within a 1-mile radius of
the temporary or permanent residence of the sexual
predator of the presence of the sexual predator.
Information provided to members of the community and the
public regarding a sexual predator must include:
1. The name of the sexual predator;
2. A description of the sexual predator, including
a photograph;
3. The sexual predator's current address, including
the name of the county or municipality if known;
9
to take the offender’s registration information and photograph and
place it on the internet for worldwide distribution. See §
775.21(7)(c), Fla. Stat. County law enforcement also has a
statutory duty to provide this same information to the public
through other means. See § 775.32(7)(a), Fla. Stat.8 Broad
4. The circumstances of the sexual predator's
offense or offenses; and
5. Whether the victim of the sexual predator's
offense or offenses was, at the time of the offense, a
minor or an adult.
9 This section specifically provides that:
(9) Immunity.–When the court has made a written
finding that an offender is a sexual predator, an elected
or appointed official, public employee, school
administrator or employee, agency, or any individual or
entity acting at the request or upon the direction of any
law enforcement agency is immune from civil liability for
damages resulting from the release of information under
this section.
10 A person can, however, petition the court for relief if
after twenty (20) years he or she has never been arrested for any
subsequent felony or misdemeanor.
10
immunity is afforded anyone acting in good faith in the
implementation of FSPA’s notification requirements. See §
775.21(9), Fla. Stat.9
An offender must appear in person at a DMV office to notify it
of any change of residence, which is forwarded to FDLE and posted
on its website. See § 775.21(6)(g), Fla. Stat. If an offender
plans to move out-of-state, he or she must inform DMV at least
forty-eight (48) hours before leaving. See § 775.21(6), Fla. Stat.
All of this registration information must be updated by the
offender for the “duration of his or her life.”10 See §
775.21(6)(l), Fla. Stat. Failure to comply with these registration
requirements is a third-degree felony. See § 775.21(10)(a), Fla.
11 This section provides:
(b) A sexual predator who has been convicted of or
found to have committed, or has pled nolo contendere or
guilty to, regardless of adjudication, any violation, or
attempted violation, of s. 794.011(2), (3), (4), (5), or
(8); s. 794.023; s. 800.04; s. 827.071; s. 847.0133;
or s. 847.0145, or a violation of a similar law of
another jurisdiction, when the victim of the offense was
a minor, and who works, whether for compensation or as a
volunteer, at any business, school, day care center,
park, playground, or other place where children regularly
congregate, commits a felony of the third degree,
punishable as provided in s. 775.082, s. 775.083, or s.
775.084.
12 The Fourteenth Amendment provides that no person shall be
deprived of life, liberty, or property without due process of law.
U.S. Const. amend. XIV, § 1.
11
Stat.
Finally, FSPA also automatically prohibits specific offenders,
from working “at any business, school, day care center, park,
playground, or other place where children regularly congregate. .
. .” § 775.21(10)(b), Fla. Stat.11
III. Procedural Due Process
The defendant argues that the automatic registration and
notification requirements of FSPA are violative of his protected
right to procedural due process, guaranteed to him by the
Fourteenth Amendment to the United States Constitution.12
Procedural due process questions are examined in two steps:
the first asks whether there exists a liberty or property
interest which has been interfered with by the State, .
. . the second examines whether the procedures attendant
upon that deprivation were constitutionally sufficient.
. . .
12
Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454, 460 (1989)
(citations omitted).
The defendant claims that FSPA infringes on his liberty
interest in reputation. See, e.g., Wis. v. Constantineau, 400 U.S.
433, 437 (1971) (stating that “[w]here a person’s good name,
reputation, honor, or integrity is at stake because of what the
government is doing to him, notice and an opportunity to be heard
are essential.”). However, the law is clear that to trigger
procedural due process rights, the defendant must suffer a change
in legal status in addition to the “stigma” that would result from
the public notification and release of registry regulation. See
Paul v. Davis, 424 U.S. 693, 701 (1976) (stating that “reputation
alone, apart from some more tangible interests such as employment,
is [not] either ‘liberty’ or ‘property’ by itself sufficient to
invoke the procedural protection of the Due Process Clause.”). See
also Cutshall v. Sundquist, 193 F.3d 466, 479 (6th Cir. 1999)
(holding that: “[o]nly where the stigma of damage to a reputation
is coupled with another interest, such as employment, is procedural
due process triggered.”). This has come to be commonly known as
the “stigma-plus test.” Id.
A. Stigma Plus
The act of being publicly labeled, pursuant to FSPA, a “sexual
13 “A ‘stigma’ is [a] mark or token of infamy, disgrace, or
reproach. . . .” Doe v. Dep’t of Pub. Safety, 271 F.3d at 47
(quoting The American Heritage Dictionary of the English Language
1702 (4th ed. 2000)) (alteration in original).
14 In Smith v. Doe, convicted sex offenders challenged the
retroactive application of Alaska’s Sex Offender Registration Act
as a violation of the Ex Post Facto clause. The Court held that
Alaska’s act was non-punitive, and that its retroactive application
was not constitutionally infirm. 123 S.Ct. at 1154.
13
predator” clearly results in a stigma.13 See, e.g., Doe v. Pataki,
3 F. Supp. 2d 456, 467-68 (S.D.N.Y. 1998) (stating that “First,
[the offenders] have convincingly demonstrated that, when
implemented, the community notification provisions of the Act will
likely result in their being branded as convicted sex offenders who
may strike again and who therefore pose a danger to the community.
. . . [S]uch widespread dissemination of the above information is
likely to carry with it shame, humiliation, ostracism, loss of
employment and decreased opportunities for employment, perhaps even
physical violence, and a multitude of other adverse consequences.
Thus, there is no genuine dispute that the dissemination of the
information contemplated by the Act to the community at large is
potentially harmful to the [offenders’] personal reputations.”).
The state, however, relying on the Supreme Court’s opinion in
Smith v. Doe, 123 S. Ct. 1140, 1150 (2003),14 argues that the
stigma, if any, attached to an offender deemed to be a “sexual
predator” comes not from FSPA, but from the publication of the
offender’s own prior criminal conduct. We disagree. Under FSPA,
15 Under Alaska law, information contained in the state’s
central registry
is confidential and not subject to public
disclosure except as to the sex offender’s . .
. name, aliases, address, photograph, physical
description, description of motor vehicles,
license numbers of motor vehicles, and vehicle
identification numbers of motor vehicles,
place of employment, date of birth, crime for
which convicted, date of conviction, place and
court of conviction, length and conditions of
sentence, . . . .
Alaska Stat. § 18.65.087(b) (2000).
14
the information regarding an offender’s “sexual predator” status is
not only a part of the public record and internet database (as it
is in Alaska, Smith’s state of origin)15, but
the sheriff of the county or the chief of police of the
municipality where the sexual predator . . . maintains a
permanent or temporary residence shall notify members of
the community and the public. . . .
§775.21(7)(a), Fla. Stat. These notification requirements, which
mandate affirmative action on the part of law enforcement, go well
beyond the mere posting of information in Smith which the Supreme
Court found to be merely “passive.” Smith, 123 S. Ct. at 1153
(stating that “[t]he notification is a passive one: An individual
must seek access to the information.”). Thus, the “stigma” here
not only from an offender’s conviction but also comes from the
active dissemination of this conviction and other information by
law enforcement.
The defendant here also claims that there are several “plus
16 See § 775.21(6), Fla. Stat.
17 See § 775.21(10)(b), Fla. Stat.
18 See § 775.21(9), Fla. Stat.
19 The court provided as additional “plus” factors that:
Potential employers and landlords will foreseeably be
reluctant to employ or rent to [the defendant] once they
learn of his status as a “sex offender.” . . . Indeed,
the public disclosure provisions of [the act] can
adversely affect an offender’s personal and professional
life, employability, associations with neighbors, and
choice of housing. . . . In addition, public disclosure
may encourage vigilantism and may expose the offender to
physical violence.
Bani, 36 P.3d at 1265. (citations omitted).
15
factors” implicated by FSPA. He asserts, inter alia, that the
lifelong registration requirements,16 employment prohibitions,17 and
inability to seek tort remedies18 pursuant to the act satisfy the
“plus” requirements of the stigma-plus test. We agree, noting that
the Supreme Court specifically mentioned employment as a “plus”
factor in Paul v. Davis, 424 U.S. at 701. See also Collie v.
State, 710 So. 2d 1000, 1012 (Fla. 2d DCA 1998) (finding that
employment restrictions infringe on a constitutionally-protected
liberty interest).
With facts and statutes similar to those in this case, other
courts have also found that these plus factors satisfy the stigmaplus
test. See, e.g. Hawaii v. Bani, 36 P.3d 1255 (Haw. 2001)19;
20 Describing the liberty interest that is lost by a label of
“predatory sex offender,” the court wrote:
Finally, and perhaps most importantly, it is an interest
in avoiding the social ostracism, loss of employment
opportunities, and significant likelihood of verbal and
perhaps, even physical harassment likely to follow from
designation. In our view, that interest, when combined
with the obvious reputational interest that is at stake,
qualifies as a “liberty” interest within the meaning of
the Due Process Clause.
Noble, 964 P.2d at 995-96.
21 The court in Doe found that:
The combination of the following circumstances persuades
us that the plaintiff has a liberty and privacy interest
protected by the Constitution . . . that entitles him to
procedural due process: (1) the requirement that he
register with local police; (2) the disclosure of
accumulated personal information on request; (3) the
possible harm to his earning capacity; (4) the harm to
his reputation; and, most important, (5) the statutory
branding of him as a public danger, a sex offender.
686 N.E.2d at 1013.
16
Noble v. Bd. of Parole, 964 P.2d 990 (Or. 1998);20 Doe v. Attorney
Gen., 686 N.E.2d 1007 (Mass. 1997).21
B. Due Process
Since we have determined that FSPA’s registration and public
notification provisions implicate the defendant’s liberty
interests, we must now decide whether the defendant was afforded
the requisite procedural safeguards of due process. See Mathews v.
Eldridge, 424 U.S. 319, 348 (1976) (procedural due process requires
that government act in a fair manner when there is a deprivation of
a constitutionally protected property interest).
22 The defendant was charged with, and pled guilty to sexual
battery on a physically incapacitated victim by multiple
perpetrators. A single conviction for a multiple perpetrator
sexual battery of a physically incapacitated victim automatically
“classified” the defendant as a sexual predator. See §
775.21(4)(a), Fla. Stat. (a single capital, life, or first-degree
felony violation of chapter 794 automatically qualifies person as
“sexual predator”); § 794.011(4)(a), Fla. Stat. (sexual battery on
physically incapacitated victim is a first-degree felony); §
794.023(2)(b), Fla. Stat. (reclassifying all first degree sexual
batteries as life felonies if committed by multiple perpetrators).
23 In that case, similar to the case here, the respondent
claimed that he was “not a ‘dangerous sexual offender,’ and that
the Connecticut law ‘deprive[d] him of a liberty interest --
reputation combined with the alteration of his status under state
law -- without notice or a meaningful opportunity to be heard.’”
17
“The Supreme Court has explained that the central meaning
of procedural due process” is that “‘[p]arties whose
rights are to be affected are entitled to be heard; and
in order to enjoy that right they must first be notified.
It is equally fundamental [that these rights] must be
granted at a meaningful time and in a meaningful
manner.’”
Fullmer v. Mich. Dep’t of State Police, 207 F. Supp. 2d 650, 661
(E.D. Mich. 2002) (quoting Fuentes v. Shevin, 407 U.S. 67, 80
(1972)) (alterations in original).
It is undisputed that the defendant here was provided no
process as FSPA requires an automatic determination of “sexual
predator status” if one of the enumerated crimes has been
committed.22 See § 775.21(5)(a), Fla. Stat.
However, the state, relying on the Supreme Court’s recent
opinion in Conn. Dep’t of Pub. Safety v. Doe, 123 S. Ct. 1160,
(2003), claims that the defendant here is not entitled to a hearing
at all.23 In that case the Court found that:
Conn. Dep’t of Pub. Safety v. Doe, 123 S. Ct. at 1163-64.
18
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. . . .
[T]he fact that respondent seeks to prove –
that he is not currently dangerous – is of no
consequence under Connecticut’s Megan’s law. .
. . Indeed, the disclaimer on the website
explicitly states that respondent’s alleged
nondangerousness simply does not matter.
Id. at 1164 (emphasis added). Unlike the Connecticut statute,
which makes no determination that an offender is dangerous, FSPA
specifically provides that sexual predators “present an extreme
threat to the public safety.” § 775.21(3)(a), Fla. Stat. As a
result of this “threat,” the legislature has justified its mandate
that “sexual predators” follow its registration and notification
requirements, as well as the employment restrictions contained in
FSPA. See § 775.21(3)(b). Accordingly, we find that the
determination of “dangerousness” is of import to FSPA, and that the
State’s reliance on Conn. Dep’t of Pub. Safety v. Doe, infra, is
misplaced.
Thus, as several courts of other jurisdictions have done
before us, we find that this total failure to provide for a
judicial hearing on the risk of the defendant’s committing future
offenses, makes it violative of procedural due process, and
therefore unconstitutional. Fullmer v. Mich. Dep’t of State
24 New Jersey’s original “Megan’s Law” did not provide for a
judicial hearing on the risk of future offenses, but the state’s
Supreme Court read such a requirement into the statute. See Doe v.
Portitz, 662 A.2d 367, 381-85 (N.J. 1995). Without this judicial
amendment to the statute it would have been unconstitutional. Id.
at 421-22.
We however, cannot judicially amend section 775.21, as that
province in Florida is left solely to the legislature. See State
v. Keaton, 371 So. 2d 86, 89 (Fla. 1979) (courts may not vary the
intent of the legislature with respect to the meaning of a statute,
in order to render it constitutional).
19
Police, 207 F. Supp. 2d 650 (E.D. Mich. 2002); Doe v. Pryor, 61 F.
Supp. 2d 1224 (M.D. Ala. 1999); Doe v. Pataki, 3 F. Supp. 2d 456
(S.D.N.Y. 1998); Hawaii v. Bani, 36 P.3d 1255 (Haw. 2001); Doe v.
Attorney Gen., 686 N.E.2d 1007 (Mass. 1997).24 But see, Milks v.
State, 28 Fla. L. Weekly D1107 (Fla. 2d DCA May 2, 2003) reh’g
denied (July 7, 2003) (relying on Conn. Dep’t of Pub. Safety v.
Doe, and holding that FSPA does not violate procedural due process
principles).
IV. Conclusion
For the foregoing reasons, we find that in the absence of a
provision allowing for a hearing to determine whether the defendant
presents a danger to the public sufficient to require registration
and public notification, the Florida Sexual Predators Act violates
procedural due process. Accordingly, the order on appeal is
reversed.
Moreover, because the recent Supreme court decisions of Smith
v. Doe, and Conn. Dep’t of Pub. Safety v. Doe, are factually and
25 In Milks the Second District declined to certify conflict
with our original opinion because it was not final and “therefore
may be subject to withdrawal or revision.”
20
legally distinguishable from the case before us, rehearing is
denied.
Finally, we note that the Second District recently decided,
that FSPA did not violate an offender’s procedural due process
rights. See Milks v. State, 28 Fla. L. Weekly D1107 (Fla. 2d DCA
May 2, 2003). Accordingly, we certify conflict with that
decision.25
Reversed, rehearing denied and conflict certified.
GREEN and FLETCHER, JJ., concur.
21
Espindola v. State
Case No. 3D02-1839
COPE, J. (concurring in part and dissenting in part).
I agree with the majority opinion that the use of the term
“predator” renders the statute constitutionally infirm. In this
respect, the Florida statute differs from the statutes construed by
the United States Supreme Court in Smith v. Doe, 123 S. Ct. 1140
(2003), and Connecticut Department of Public Safety v. Doe, 123 S.
Ct. 1160 (2003).
I disagree with the majority on the remedy. In my view, it is
possible to sever the unconstitutional portion of the statute from
the remainder.
The Florida Supreme Court has said:
In resolving the issue of severability, this Court
has consistently applied the tests set forth in Cramp v.
Board of Public Instruction of Orange County, 137 So. 2d
828 (Fla. 1962):
When a part of a statute is declared
unconstitutional the remainder of the act will
be permitted to stand provided: (1) the
unconstitutional provisions can be separated
from the remaining valid provisions, (2) the
legislative purpose expressed in the valid
provisions can be accomplished independently
of those which are void, (3) the good and the
bad features are not so inseparable in
substance that it can be said that the
Legislature would have passed the one without
the other and, (4) an act complete in itself
remains after the invalid provisions are
stricken.
22
Smith v. State, 507 So. 2d 1080, 1089-90 (Fla. 1987) (citations
omitted).
“The Cramp test is a well established component of Florida
law. It has been applied repeatedly in countless Florida cases .
. . .” Schmidt v. State, 590 So. 2d 404, 415 (Fla. 1991) (citation
and footnote omitted).
Further:
severability does not always depend on the inclusion of
a severability clause in a legislative enactment. Such
a clause only buttresses the case for severability. If
the four parts of the Cramp test are met, severability
can occur whether or not the enactment contains a
severability clause.
Schmidt, 590 So. 2d at 415 n. 12.
Looking at the statute as a whole, the statute accomplishes
the following main objectives:
(a) Registration of offenders;
(b) Disclosure of an offender’s location and prior criminal
record on the Florida Department of Law Enforcement website and
through community notification; and
(c) Labeling certain offenders as “predators.”
Item (c) is constitutionally infirm, but items (a) and (b) are
valid.
Under the Cramp test, the first question is whether the
unconstitutional provisions can be separated from the remaining
valid provisions. Cramp, 137 So. 2d at 820. The answer is yes.
The website contains a listing of sex offenders under Florida’s
23
various statutes on the subject. See §§ 775.21, 943.0435, 944.607,
Fla. Stat. All criminal history information is reported in the
same format, with the exception that those who qualify as predators
under section 775.21 carry the designation “predator” in red
letters on the summary page listing the various offenders. The
term appears again on the individual history page. The term
“predator” can be excised while leaving the remaining information
about the offender and his criminal record intact. The website and
other public notification materials can substitute a neutral term,
such as “sexual offender,” or “criminal history information,” in
place of the stricken term.
Similarly, the statute contains regulations for the
registration of offenders who meet the statutory criteria. See §
775.21(6), Fla. Stat. The registration requirements remain
enforceable. In entering an adjudication under this statute, the
court should simply adjudicate that the offender qualifies under
section 775.21, Florida Statutes, rather than adjudicating the
offender to be a “sexual predator.”
The second question under Cramp is whether the legislative
purpose expressed in the valid provisions can be accomplished
independently of those which are void. 137 So. 2d at 830. Again,
the answer is yes. The thrust of the statute is to require
offender registration and to make offender criminal record
information available to the public through the internet and
24
otherwise. These purposes can be accomplished even if the
“predator” label is stricken.
The third question under Cramp is whether the good and bad
features are not so inseparable in substance that it can be said
the Legislature would have passed the one without the other. 137
So. 2d at 830. There is no doubt that the Legislature would have
passed this statute regardless of whether the term “predator” was
included.
The fourth question under Cramp is whether an act complete in
itself remains after the invalid provisions are stricken. Again,
the answer is yes. The statute adequately defines who is covered,
what registration procedures must be followed, and what mechanism
is created for public disclosure. The only modification relates to
the use of the term “predator.”
The State argues that the statute should be upheld in its
entirety under Smith v. Doe and Connecticut Department of Public
Safety v. Doe, but the State is incorrect. The Alaska and
Connecticut statutes at issue in those cases did not use the term
“predator” or any other terminology suggesting that the offender is
a present danger to the public.
I would urge the Florida Legislature to revisit the statute at
its earliest opportunity. By adjusting the terminology, the
constitutional defect in this statute can be corrected and the
statute brought into compliance with Smith v. Doe and Connecticut
25
Department of Public Safety v. Doe.
It is clear that there must be uniform statewide procedures
under section 775.21, and equally clear that the Florida Supreme
Court must authoritatively resolve the constitutional issue.
Accordingly, it is my view that we should stay our mandate pending
review in the Florida Supreme Court.