In mid-October, the ACLU of Vermont filed suit against the Vermont Department of Public Safety to force it to remove an individual listed on the public sex offender registry who should not have been listed.  We took this action because Vermonters have a right to be treated fairly by their government.  They should not have to get a lawyer and file a lawsuit before the government does the right thing.

The ACLU’s client in the litigation, Doe v. Dep’t of Public Safety, is an individual who was convicted of attempted sexual assault approximately 10 years ago.  He is  a “sex offender” under Vermont law [Vt. Stat. Ann. tit. 13, § 5401(10)].  However, his offense is not one that can be listed on the state’s internet registry.  The Legislature set forth the list of convictions meriting publication on the registry (Vt. Stat. Ann. tit. 13, § 5411a), and no attempt crimes are listed.

Unfortunately, DPS (which operates the state’s sex offender registry) went even farther than unlawfully deciding for itself who goes online and who doesn’t.  Consequently, Doe has been trying for months to have DPS  recognize its mistake.

After first receiving notification over the summer that he would be placed on the registry, Doe carefully read the legislation authorizing the registry expansion, all 41 pages’ worth [PDF].

Not seeing his conviction listed, he called DPS and was brushed off, so he wrote the first of three letters politely requesting that the department reconsider its unlawful position.  His first letter garnered a response, but DPS essentially ignored his complaint that according to the law, he shouldn’t be placed on the registry. He was simply told he was a sex offender, and that was enough to have him listed.

Doe wrote back, explaining that he was not contesting that he was a sex offender under Vermont law, but he was questioning the basis on which the department was listing him on the online registry. Simply put, he said, my conviction isn’t among the crimes listed in the law for inclusion on the registry.

DPS ignored his second letter, so a short time later, Doe wrote a third time, remaining polite, and explaining that he wished to “appeal[] your decision to place my name on the internet,” and requesting that the department “reply to this letter with your reason for not applying the law as it was written.”

The defendant ignored Doe, and posted him online on October 1st, the day the expanded online sex offender registry went live.

Worse, it posted him as having been convicted of two crimes that he had not committed.

On October 14th, represented by ACLU of Vermont staff attorney Dan Barrett, Doe filed suit in Washington Superior Court [PDF], alleging that the Department of Public Safety had broken the law by (a) listing Doe on the internet registry and (b) ignoring his letters requesting an appeal.

On the same day, Doe filed motions requesting permission to proceed under a pseudonym [PDF] and an order mandating the defendant remove Doe from the registry and pay Doe’s costs of bringing the lawsuit [PDF], since no Vermonter should be forced to pay $300 to bring a lawsuit just to have the government follow the law.

Doe’s situation can be explained with an analogy:

Imagine that you get a letter in the mail from the state Department of Motor Vehicles saying that your driver’s license has been revoked because your hair is red. You read the DMV statutes, and see nothing that gives the DMV the authority to revoke red-haired peoples’ licenses. You call the DMV and explain your objection. You’re told that there’s no arguing that you’ve got red hair, but your license is being revoked. You send a letter repeating that you can’t find a law permitting the DMV to revoke your license for having red hair. You receive a letter saying that it can’t be denied that your hair is red, but your license is being revoked. You send a second, and then a third letter, saying that you’re not contesting the color of your hair; you’re contesting the DMV’s legal authority to revoke your license based upon your hair color. The DMV ignores you, and your license is revoked. You’re left with having to pay $300 to go to court to argue before a judge that your license never should have been revoked. Any Vermonter would recognize this as baloney. But it’s what happened to our client.

The government is accountable to all Vermonters, even those that it thinks aren’t worth listening to.

The rule of law means, simply, that the law be applied equally to everyone. It’s what’s called “justice.”

Tags: aclu-vt litigation, government oversight, rule of law, vermont law