United States District Court, W.D. Wisconsin
OPINION & ORDER
JAMES D. PETERSON District Judge
Plaintiff Paul Murphy was convicted of rape in California in 1980. Under California’s Sex Offender Registration Act, Murphy must register as a sex offender for the rest of his life-so long as he resides in California. But now he lives in Wisconsin, which requires that any person “registered as a sex offender in another state” must register in Wisconsin. Murphy contends that his California sex offender registration is now inactive, so he should not have to register in Wisconsin. Murphy brings this suit under 42 U.S.C. § 1983 alleging that defendants, employees of the Wisconsin Department of Corrections (DOC), have violated his due process rights under the United States Constitution by requiring him to register as a sex offender.
The case is before the court on the parties’ cross motions for summary judgment. Murphy contends that he was entitled to a hearing before he could be required to register as a sex offender. But this claim is foreclosed by Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003), which holds that an offender is not entitled to a pre-registration hearing under conviction-based registration statutes like Wisconsin’s. The court concludes that Wisconsin afforded Murphy an adequate opportunity to show that he should not have to register as a sex offender. Accordingly, Murphy received all the process he was due, and thus his constitutional claim fails. The court will grant defendants’ motion for summary judgment, deny Murphy’s motion, and dismiss the case.
The court need not, and therefore will not, reach the question of whether, as a matter of Wisconsin state law, Murphy is required to register as a sex offender in Wisconsin.
Except where noted, the following facts are undisputed.
In 1979, Murphy, then age 19, sexually assaulted an adult woman in California. On January 17, 1980, Murphy was convicted of rape in Los Angeles County, California. Murphy was released from prison on September 7, 1986; he was on parole in California until March 6, 1990.
Murphy moved to Wisconsin in March 2001. A few months later, Murphy was involved in a fight, which led to his conviction for aggravated battery. The battery conviction was not a sex offense, and the precipitating events did not involve any sexual elements. When Murphy’s release date drew near, the DOC determined that: (1) there was no reason to civilly commit Murphy as a sexually violent person; (2) Murphy did not require sex offender treatment; and (3) the DOC did not need to release a “special bulletin” (required for sex offenders) before Murphy’s release.
On February 17, 2009, the DOC released Murphy from his incarceration for the battery conviction. Three days later, Murphy received a letter from the State of Wisconsin Sex Offender Registration Program stating that he was required to register as a sex offender. At some point before Murphy received the letter, defendant Sue Klemann, a Wisconsin sex offender registry specialist, allegedly determined that Murphy was required to register.
Murphy also alleges that as far back as 2007, while Murphy was still incarcerated, defendant Gail Faust, a DOC employee, placed Murphy on the Wisconsin Sex Offender Registry.Murphy complied with the letter’s instructions and registered under protest. Dkt. 16-6. Murphy did not receive a hearing on whether his California conviction required him to register in Wisconsin. Murphy continued to register as a sex offender in Wisconsin until July 2012.
In 2012, Murphy retained attorney Erik Johnson to challenge his Wisconsin registration obligations. In June 2012, in response to his inquiry on behalf of Murphy, attorney Johnson received an email from Janet Neeley, a deputy attorney general for the California Department of Justice. Neeley explained that “[s]ince [Murphy] is residing out of state, he is not currently required to register in California.” Dkt. 16-10, at 3. Within days, Wisconsin Sex Offender Registration Specialist Tina Gensler apologized to Murphy and removed him from the Wisconsin Sex Offender Registry. Murphy remained free from Wisconsin registration requirements until October 2014.
Murphy engaged his current counsel, Jeff Scott Olson, to pursue a possible claim for damages arising from the apparently wrongful imposition of the registration requirement. In the fall of 2014, attorney Olson submitted an open records request to the DOC, seeking information regarding Murphy’s registration. Brandon Smith, a program support supervisor for Wisconsin’s Sex Offender Registry Program, responded to the records request. Smith’s review of Murphy’s California conviction prompted Smith to contact the California Department of Justice to obtain information regarding Murphy’s registration status there. Smith corresponded with Kerry Ramos, a deputy attorney general for the California Department of Justice who dealt with issues regarding the California Sex Offender Registry. Ramos explained the California registration status of out-of-state offenders in an email to Smith:
An individual who is convicted of a registrable offense pursuant to California Penal Code section 290 is required to register for life pursuant to California Penal Code section 290 while residing, working or attending school in California. When a California registrant moves out of California, the registrant’s California Sex and Arson Registry (CSAR) record remains active; however, it states that the subject has relocated out-of-state. Additionally, the registrant’s information is removed from the California Megan’s Law public website if the registrant’s offense was previously posted pursuant to Penal Code section 290.46.
Dkt. 16-11, at 3. In other words, Murphy was listed on California’s sex offender registry as having relocated out-of-state, but he had been removed from California’s publicly available sex offender website. In response, Smith asked: “Just to clarify, Paul Murphy is ...