By Larry . . .
This is great news for those that have hope that our courts will actually consider whether or not sex offender registration constitutes punishment. It appears that senior U.S. District Judge Richard Matsch may be just the judge for the situation. On July 7th Judge Matsch denied Colorado’s effort to avoid a trial on the merits of the complaint.
Three plaintiffs initiated the case by filing a complaint with the assistance of an attorney located in Boulder, Colorado. The first plaintiff was convicted in 1999 and was sentenced to 74 days on work release followed by eight years’ probation. The second plaintiff was convicted in 2007 for conduct that occurred in 2005 when he was eighteen years old. The third plaintiff was adjudicated as a juvenile offender for conduct that occurred when he was only thirteen years old. The plaintiffs assert in their complaint that “…continuing to register and complying with the restrictions applicable to them under the Act and regulations violate the protections afforded by the Eighth and Fourteenth Amendments to the United States Constitution.”
The Defendant, Colorado Bureau of Investigation (CBI), moved for “Summary Judgment of Dismissal based on well-established case authority that statutes like Colorado SORA are not punitive.” CBI, like most other defendants, cited other cases including Smith v Doe, 538 U.S. 84 (2003) for their assertion that sex offender registration is not punitive. Order Denying Defendant’s Motion for Summary Judgement at pg. 2. CBI also contends, “Plaintiffs have not shown such adverse effects on themselves as to support a finding of punishment.” Id at 7. Judge Matsch concluded that this is a mixed question of fact and law and that there are issues of fact that should be determined through a trial with the full opportunity to present evidence that may include more than has been explored in the discovery done thus far. One plaintiff presented evidence that he has experienced harassment and vigilantism as a result of being on the sex offender registry. One plaintiff showed that he has been prohibited from entering Denver Public Schools property because of his status on the registry. One plaintiff presented evidence that he was terminated from employment due to his status on the registry.
The plaintiff adjudicated for conduct that occurred when he was thirteen years old has petitioned twice for removal pursuant to C.R.S. 16-22-1113(1)(e). His petition was denied in 2006 and again in 2012. Judge Matsch’s interest has focused on the process that resulted in the denial of the petition. Judge Matsch noted that the statute requires the court to consider “…whether the person is likely to commit a subsequent offense of or involving unlawful sexual behavior.” Judge Matsch noted that neither magistrate made a finding that the plaintiff was likely to commit a subsequent offense involving sexual behavior. Rather, the magistrates put the burden on the plaintiff to show by a preponderance of the evidence that he was not likely to commit such an offense. This burden shifting placed an impossible burden on the plaintiff to prove a negative. Judge Matsch also noted that the magistrates had imposed additional conditions not contained in the statute, which may be a violation of due process.
RSOL is excited that this case is pending, and we are in communication with the attorney in terms of offering any assistance we can provide. It could be that RSOL agrees to raise funds if expert witnesses are needed for trial. We will keep you posted as the case progresses to trial and any subsequent appeals that are almost certain should Colorado lose.