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State v. Druktenis1/30/2004
lus in the context of a qualified immunity defense to a civil rights action under 42 U.S.C.A. ยง 1983. See Hourigan, 2001-NMCA-085, 14. We stated that "in addition to stigma . . . there must be some evidence that the state sought to remove or significantly alter life, liberty, or property interests recognized and protected by state law." Id. (citing Texas v. Thompson, 70 F.3d 390, 392 (5th Cir. 1995)). We recognized in Hourigan that " he other legal interests have often been identified in terms of employment or business relationships." Id. We held that evidence of actions of State Game and Fish Department employees to humiliate, intimidate, harass, and impinge the plaintiff's good name, where coupled with harm to an established, legitimate business interest or relationship, were sufficient assertions under Paul to establish a significant State alteration of a liberty interest recognized and protected under State law. Hourigan, 2001-NMCA-085, 14-15. New Mexico has not yet, however, addressed whether defamatory State action that reduces opportunities of prospective employment constitutes a "stigma plus" circumstance giving rise to impairment of a liberty interest.
Cases outside New Mexico come to varying results. For those recognizing an assertable liberty interest, compare Pryor, 61 F. Supp. 2d at 1232 (stating " here can be little doubt that prospective employers and sellers or lessors of real estate will think twice before doing business with an individual deemed to be a likely recidivist and a danger to his community," and holding that to the extent employment and housing opportunities are foreclosed, the sex offender "will have satisfied the `plus' part of the stigma-plus test"), with Poritz, 662 A.2d at 419 (concluding that the harm to one's reputation interest resulting from notification, when coupled with a concurrent incursion into one's protectible privacy interest grounded in the Fourteenth Amendment, is sufficient to create a protectible reputation interest, and that under the New Jersey Constitution, "a protectible interest in reputation [existed] without requiring any other tangible loss"). For those not recognizing an assertable liberty interest, see, e.g., Cutshall v. Sundquist, 193 F.3d 466, 479-80, 482 (6th Cir. 1999) (holding interest in employment not to be a protected liberty or privacy interest); Valmonte, 18 F.3d at 1001 (interpreting Paul to exclude future employment as an additional circumstance since it was "included [within] the normal repercussions of a poor reputation").
3. The Similar Nature of the Privacy and Reputation Interests
The interests at stake here are those concerned with and affected by the divulging and disseminating of personal, private, confidential information consisting of current residence and place of employment in a manner and under circumstances that give rise to a strong potential of long-term public stigmatization, humiliation, ostracism, and physical harassment, and of restriction of the ability to earn a living. While information as to residence is more a "privacy" issue, and information as to place of employment is more a "reputation" issue, the privacy and reputation interests merge to the extent that they each concern government dissemination of what the sex offender wants to keep private where the effect of the dissemination can be to substantially restrict the offender's ability to find a peaceful home in the community, to peaceably integrate into community life, and to earn a living. It defies common sense to deny that when the dissemination shows the way to a sex offender's home, the invasion of privacy can result in harassment, and that when the dissemination is defamatory, the breach of privacy can result in loss of e
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