all right our third case for this morning is paul murphy against debra which laski so mr olson made me a police record as much as it pleases me to be here putting people on the sex offender registry through an ex parte procedure carried out behind closed doors as was done here violates their rights in two ways first they have a right to be heard on the decision before it is made second they have a right to be informed of the process of being able to them to lodge any objections they hear so could you answer one question for me how does your case  relate to our decision in the shepherd's case where a plaintiff was challenging the indiana department of corrections procedures for correcting errors to sex offender are you concerned about arab direction or is this a more generic due process we're concerned about due process before the error is made and that due process is not going to be futile because in these decisions about whether to put people on the sex offender registry or not based on out of state events most of the mistakes that get me are going to be mistakes of fact that could be avoided by giving a little procedure a doesn't have to be a full blown trial type hearing but it has to be some opportunity to be heard in a meaningful way so could you explain to me what mistake of fact problem that was my understanding of your brief to that you thought they were reading the california law incorrectly and having it reflect over in that wisconsin system incorrectly then but that's just an issue of law so why is he the right person to be complaining about due process designed to correct factual error to do processed it because it isn't just there correct factual errors it's there to give the person that's on the verge of a deprivation of liberty or property the right to be heard and that right can be valuable whether it's a factual error that could be made whether it's an error of law that could be made whether it's a discretionary decision the due process clause doesn't make that distinction only ask you this have you been able to identify any case within our circuit or from the supreme court that would have made it obvious to individual defendants that their actions would violate a clearly established right well i think that's ok i think that the due process cases well particularly in light of the fact that there was no factual error so i i'm trying to get to notice to the defendants and whether you understand ok i think that the due process cases that talk about stigma plus make it very clear that the wisconsin sex offender statute sets up a stigma plus situation and that means you get a right to due process so i guess maybe i should be more clear first of all as we explained they waved it by not asserting it in the court below second of all the principles upon which our cases feast were clearly a stamp i want to give you an example of the degree of generalities with which these principles have to be established in the law just last week september twentieth this court issued an opinion you know preserved male case called williams versus hanson it dealt with the qualified immunity argument in one paragraph and its stated the general principle of law that prisoners have the right not to have their meal confiscated absent some legitimate penal logical reason a general rule of law was enough for this court to deny the defense of paul fight immunity and that case it's we've got rule of law the stigma plus doctrine and noting that there's a liberty interest in sex offender registration schemes where there are legal burdens imposed in addition to reputational injury and it's very clear that under the stigma plus cases you get due process if you're looking at a stigma plus sanctions from the government but here here's a good example and you gave the example of the prison nails if the law had simply said you know prisoners have first amendment rights that's at a pretty high level of generality there haven't fact in cases about male in the prisons so in your case of course there's paul versus davis there's the stigma plus idea it's understood in the law but to to make it require the the various department of corrections people here who thought you know that they'd gotten information from california about the conviction california has this rule designed to avoid you know extra territorial effect of its laws so what that means is maybe a little unclear but they one point the argument was made in this case that the  process that you're entitle to is actually what you get through the process of the criminal conviction and then you serve your term and there are these collateral consequences of and believe me i totally refute that the collateral consequences  offender registries are incredibly burdensome so you don't need to convince me of that that the supreme court has upheld these kinds of registries and so any way a a prison official could think that the due process has been taken care of and if they mistook a california conviction for rape for an arizona conviction for shoplifting you know somebody is just going to have to correct it after the fact that say that we you give great deference to prison administrators and people's situations once they're in prison in terms of their ability to exercise constitutional rights think of turner against safley for example is just one that pops into my head so a prison official might think that there is a slightly different way to apply these rules in the prison context those difference cases apply only to  discretionary decisions i think i don't think the implied or legal decisions and this isn't a case involving your ministration of a prison you know any about its purpose its criminal justice system for sure you know what what will happen as you depart the prison and move out into your supervised release your probation or parole or whatever it's called i don't think any of those cases make inroads into the skidmore plus garcon of d process so would you envision is that is each prisoner or maybe this is a perfectly good system i'm not saying couldn't happen but you envision that before every prisoner is released there's a hearing and at the hearing it's explored whether the prisoner has any qualifying sex offense in his back his or her background and if so the prisoner has to be told you have this offense you're going to be on the wisconsin if it's wisconsin state registry he has to say no i want to submit a brief explaining why i shouldn't be in there needs to be that process before he leaves the prison no i don't i don't think there's haskell quiet through the release of prisoners at all because if i not i don't now i really don't understand you because that's when he was put on the registry here this guy right but the thing that i talking about is not the release from prison they have so much as the decision to put him on the registry it happened to  r a couple days after he got released from prison here for a couple days before but it could have occurred a year after anna did occur in this case again when he was off the registry three years they've put him back on so i'm not talking just about people are being released from prison situated at a minimum have to include them it seems because that would be the most typical time that most decision not everybody that's keen released from prison would be affected by a rule that says to the department corrections if you're planning or if you're thinking about putting somebody on the sex offender registry you've got to let them know and give them a chance to be heard that doesn't apply to the great majority of prisoners being released just those death the department is contemplating putting on the sex offender records ok so this is so so you're narrowing down my hearings to you know the department of corrections makes a tentative decision let's say that particular person mr  murphy needs to be put on wisconsin's registry because of his prior california offense and and people like that from the tentative decisions to get a hearing yes they would get some kind of notice and some kind of opportunity to be heard maybe initially just to register an objection and some kind of rudimentary elementary session like in cleveland versus lot of melanie's i'd like to see the rest of my time  may please the court i like to step back for a minute and just take a take a second to look at the statutes that are at issue here because i think the california and wisconsin statutes of you examine how they work they resolve this case very simply a mr murphy was convicted of rape in california california has a sex offender registry statute that operates on magically when an individual is convicted of a qualifying offense they're placed on the registry to the conviction based systems right can as that was the supreme court directly considered in connecticut the doe and decided that those kinds of systems do not entitles offenders to a pre registration hearing because the criminal process has  was entitled to this process to dispute the conviction of this trial when he was placed on the registry no more facts were issued those facts that already been decided in his in his criminal trial now mr murphy moved to wisconsin i was scott's and has a very similar statute that applies to offenders who commit sex offense in the state that requires them to to register automatically for other state registrants it has a very similar process where it it looks simply at the facts of whether  is registered in another state there are no more facts to be determined and nothing no active discretion is made by the department of corrections official they simply look at the fact the registry in california in this case which in  turn depended on the fact a conviction and this fall squarely within connecticut's veto which holds that where there are no more material facts to be presented before you placed on the registry there's there's no need for hearings now i think you're under the rancor then you get this it's on page fifteen of mr olson sprit who says he's required to register for life pursuant to the california law while residing working or attending school in california when he moves the record remains active but it says he's legal relocated out of state and his information is removed from the megan's law website so it appears in the aggregate little from california he doesn't need to continue being you know doing things for his california registry because he's not residing working or attending school in california anymore it creates an ambiguity and so if he has no california obligation why does he have a wisconsin obligation well to the for the first thing i'll say is mr murphy if you resided in california his his conviction of rape is a lifetime o critically no i understand that but he doesn't reside in california i understand what would happen if you returned to california he would his registration requirements would would kick in and you would be required to submit updates as as usually only reason he's it's not public use he doesn't have a california right and wisconsin law does require if you have a qualifying offense in another state that requires you to register for life you also remain to lifetime registration california if you are staying california wisconsin is reading that as kind of classifying the offense wisconsin is looking at that offense and saying well if that's what california thinks of the offense you committed there then we think the same thing we're going to put you on our registry to we don't really care if you have to keep up with california while you're on our registry or not that's exactly right and that's the legal position that the state of wisconsin takes and what i point out is there's not a single case of the mr murphy you cited where the due process clause entitles an individual to present that kind of legal argument before a deprivation occurs or you know you you pointed to the shepherds case and a in that case at issue was the disputed fact and mr murphy in his in his brief to this guy he concedes in this particular case the facts are undisputed there's no dispute that he committed this offense in california there's no dispute that he remains on one of the california registries there's no dispute that is california offense would require it and rose to register so if so i understand that argument but here's what bothers me about it more often than not i think this court is giving people hearings on questions of law you know we don't say to them well all the facts have been resolved by the district court and it you don't need to come to us you know to have your say on what the law requires people value the say to brief legal questions very much i don't know whether it's the same amount as as factual questions but maybe even more sometimes and so to say that that the facts have been resolved and so the private interest in expressing oneself to the decision maker evaporates i don't see that in matthew's against algeria judge it's a broader proposition than matthews is talking about  and it seems to me we don't really want to go down that path well i guess what i will say is is mr murphy does have a time in a place to to to address his his legal argument but he has to wait until he's going on this registry and as you well know we all unfortunately are reminded of this practically every day once something is out on the internet it's awfully hard to call it back again they're worrying in europe about a right to be forgotten that we don't have that right in the united states not at the moment so even is posed just for the sake of argument he was put on the sex offender registry in wisconsin as a result of illegal error he's on it for however long this pose a lightning fast procedure takes him only three months to get it sorted out seems to me wildly optimistic that maybe three months then he's fixed he's not in the registry anymore but there's three months worth of information out there on the internet would it ever go away surely he has some concern about that well what i would say is mr murphy is protected liberty interest and all be davis test is not the reputational effect of being placed on the registry it's the collateral legal consequences that perhaps that would prevent the state from putting him on the registry alternatively if the state had put him on the registry and he's anyone who's case the collateral consequences would be removed and it's true that there would be a period of time when he was placed on the registry but those cases make clear that's not what the due process clause protects protects against the the improper imposition of the collateral legal consequences that follow from being placed on the registry and no it can be removed through his state court hearing which is the most appropriate place to advance this kind of legal argument that he's asserted it's frankly so is it your position that there's never any due process requirement if you could just go to the state court and sue well no i mean surely their administrative due process situations and this looks a lot like an administrative decision and there there may be cases where where some processes is required but mr murphy's is simply not one of those cases as you pointed out he's he's not disputing facts i mean this is what the main of due process cases concerned all the cases he cited someone wants to to go before the decision maker to present disputed facts that are relevant to an exercise of discretion you know the decision maker can decide whether or not to deprive the individual's son disputed interest here there's nothing of the sort there's no discretion granted to the department of corrections decision makers here he has no facts it that he needs to present the decision maker in the department complaint steve doesn't like where wisconsin is reading wisconsin law but they based on the connecticut department of corrections case i don't see anything that says wisconsin is not intitled to have a substantive rule about the registry of this type and if his argument is essentially wisconsin has the wrong law then where the wrong forum i agree and  this this sort of gets into the second line of cases that we discuss will go a bit chandra my know from this court which essentially say when an individual's dispute is with the state interpret ng in applying state law the right also disposes of this case that is all the only remedy he seeks is damages this case against these department corrections officials in their individual capacity in his reply brief he does briefly raise the prospect of an order from the court even of qualified immunity of bars damages you know maybe the court can issue some sort of equitable decision directing him to be taken off the registry but but i think you're exactly right that the eleventh amendment and penn hearst would would bar that type of relief so the only thing that we're looking at here is damages and i think immunity just rights and i want to ask you about that because i didn't see a waiver in when you argued it in your brief in his reply he made other arguments to the plus type argument and mentioned brief there was a mr murphy made some arguments in response we adjusted in our reply brief clearly made the qualified immunity one as fully briefed in the district court was obviously not a basis for the decision right that's been fully briefed in this court i think there's there's no you know for the questions apparently not thank you very much so what was a basis of your response to my question to say that you know they had waived it here it is qualified immunity was waived by the defense in the district court because when we move for summary judgment they move for judgment in their initial brief they said it's not clearly established that mr murphy is not supposed to be on the sex offender list that says nothing about our due process argument didn't say anything about whether our due process rights that were asserting were clearly established until their reply brief that was waived because it was asserted for the first time in the reply brief and it's only a sentence so it was waived by not being developed or explained and i would also point out that we mentioned qualified immunity in this court for the first time in our reply brief because it wasn't reached by the district court and it wasn't argued below it was way below buying inattention by the state but we want to point out here as we do in our reply brief that it doesn't apply to claims for equitable relief so even if it were to bar of damages remedy it would not argue clerks or your judge to really mr murphy is not required to register in wisconsin for three reasons under the wisconsin statutes with which we don't not take exception except in the statutes as they're written he's not required to register he's passed the sentence beast registration requirement of section three a one point four five so one she would have required to register in wisconsin for a period of time based on his qual california conviction even if california didn't have a sex offender registration system at all he'd have to register in wisconsin through period of time after he was released from prison he's well past that period of time he's not required to register in wisconsin under the preceding paragraph someone yeah because he's not registered in another state what he's on the california sex and arson registry that's not california sex offender registry under the federal law scheme that all of states participate in because if it were california sex offender registry it have to be on the internet and he would have to register on a routine basis in california and he does not and the day he went back to california he would have to race and serial what reason he doesn't have to is because he's not living there at the moment correct and that's brings me to my third reason why he's not required to register and this is independent of whether the california sex and arson registry is the state's sex offender registry even if it were my couldn't wisconsin so regarded if it wanted to well because of for the points we make in our briefs that it doesn't fit the requirements of a sex offender registry under state and federal law but wisconsin has a whole different provision at three a one point four five sub five m so b which is the provision about getting off or as the defense says release from the sex offender registry and the defense knowledge is in there proof that this is an independent basis for release from the registration requirement and it says you're not required to register in wisconsin if you're not required to register and that other state it doesn't say you're required to register in wisconsin if if you went back to california you'd have to register their so if you know my issue i know time is getting short what concerns me about that argument isn't whether it's a good argument or not that whether we are the right parties because you are arguing about the scope and interpretation of wisconsin law and it's doesn't it's strikes me as a substantive argument not a due process argument and i don't know what external constraint there is and wisconsin to have whatever law it wants to have or at least within the range that we're talking about so what what tells wisconsin it's not allowed to interpret the law that you just read or all three of them to require mr murphy to register well you know for the wisconsin supreme court why did to read words that aren't there  i've just been talking about they could probably do it would be the only time a court has clarified the law i mean i i understand your point that you think it's crystal clear and there's no way the state would do anything different that apparently the state officials charged with administering this law have seen it differently so that's our problem when he says it's not even clear that they confronted this precise question because there was never an adversary proceeding much mr olson thanks to both counsel will take the case und