Impacts of Does v. Snyder reach to Tennessee

By Larry . . . The case of Doe v. Rausch contains a very thorough analysis regarding the history of sex offender registration in Tennessee and the developing body of case law in the Sixth Circuit which resulted in a favorable outcome for Doe. Due to the limited scope of the court’s ruling, I think that the chances of an appeal to the Sixth Circuit are less than the odds in the recent Pennsylvania case of T. S. v. Pennsylvania State Police decided by the Commonwealth Court of Pennsylvania and the case of Grabarczyk v. Stein decided by the United States District Court for the Eastern District of North Carolina.

This analysis is intended to focus on some important aspects of future litigation challenging the constitutionality of sex offender registration. It is critically important that those of us involved in advocacy recognize that all recent victories have come because litigants focused on the:

  • Ever-expanding reach of registration to additional offenses;
  • Increased periods of registration and frequency of in-person reporting to law enforcement;
  • Continuous expansion of exclusion zones through residency and proximity restrictions;
  • Favorable decisions from state and federal courts across the United states.

The Supreme Court decided the most cited registration case almost seventeen years ago. See Smith v. Doe, 538 U.S. 84 (2003). Smith was decided when most registration schemes were relatively benign compared to today’s registries. There was no in-person reporting, and people were free to live and work wherever they chose without interference from anyone. The Supreme Court did not say that states could impose any and all requirements they could imagine. In fact, they said just the opposite. The Court correctly pointed out that Alaska’s sex offender registration did not impose any restraint. Quoting from the court, “The Act imposes no physical restraint, and so does not resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint.” And the Court also observed that the Act does not restrain activities sex offenders may pursue but leaves them free to change jobs or residences. Smith v. Doe, 538 U.S. at 100.

HISTORY OF REGISTRATION IN TENNESSEE

Prior to SORVTA (Tennessee Sexual Offender and Violent Sexual Offender Registration and Tracking Act of 2004), Tennessee’s registration requirement was known as the Sexual Offender Registration and Monitoring Act of 1994 (SORMA). SORMA was frequently amended, expanding SORMA’s scope and requirements and limiting registrants’ level of confidentiality. See Doe v. Haslam, No. 3:16-CV-02862, listing amendments to SORMA. Notably, SORMA was amended in 2000 to require lifetime registration for those convicted of actual or attempted aggravated rape, rape, aggravated sexual battery, or rape of a child.

On June 8, 2004, SORMA was repealed and SORVTA was enacted. SORVTA replaced the framework for sex offender registration and restrictions in Tennessee. While much of the former system continued, SORVTA created a new classification of registrants and a new series of requirements, depending on a registrant’s classification. In 2014, the General Assembly of Tennessee again amended SORVTA to create a new offender classification: offender against children. Registrants whose victims were twelve years or younger at the time of the offense became subject to lifetime registration, regardless of whether or not the underlying offense was categorized as “violent.” According to the court, “By the Court’s estimation, at least two dozen amendments to SORVTA have been passed by the General Assembly since its enactment.) See Opinion at 6.

DETAILS ABOUT THE PLAINTIFF

In 1999, Doe pled guilty to seven counts of attempted aggravated sexual battery involving three minor victims in Anderson County, Tennessee. Prior to completion of his sentence, SORMA was repealed and replaced with SORVTA. Under SORVTA’s list of enumerated offenses, Doe qualified as a “violent sexual offender.” According to SORVTA’s original language, this obligated Doe to comply with the registration, verification, and tracking requirements for life. In 2017, Doe was arrested and charged with violating SORVTA’s reporting requirements and perjury for failing to report a Facebook account that he had opened in 2009. Though adamant that he had reported the account, Doe pleaded guilty to attempted violation of SORVTA and attempted perjury, both misdemeanor offenses, avoiding a prospective twelve-year felony sentence. At that point, Doe had finally had enough. On November 22, 2017, he filed this case pursuant to 42 U.S.C. § 1983, claiming that SORVTA’s retroactive lifetime registration requirements violate the Ex Post Facto Clause and that portions of SORVTA violate the Due Process Clause of the Fourteenth Amendment, as well as the First Amendment. Doe sought declaratory and injunctive relief through a constitutional challenge to SORVTA.

THE DOWNSIDE OF SUMMARY JUDGMENT 

This case was decided without a trial, utilizing a process known as “summary judgment.” The most significant downside when cases are decided in this manner is that the evidentiary record can sometimes be sparse, and the court is bound by longstanding precedent in terms of conclusions it can make. Both parties filed motions for summary judgment in May, 2019. Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper “. . . if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of establishing that no genuine issues of material fact exist. All facts and all inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party.

The Court’s function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper question for the fact-finder. The Court does not weigh the evidence or determine the truth of the matter. Nor does the Court search the record “. . . to establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479- 80 (6th Cir. 1989). Thus, “The inquiry performed is the threshold inquiry of determining whether there is a need for a trial – whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250.

The standards upon which a court evaluates motions for summary judgment do not change when, as here, both parties seek to resolve the case through the vehicle of cross-motions for summary judgment. “The fact that both parties have moved for summary judgment does not mean that the court must grant judgment as a matter of law for one side or the other; summary judgment in favor of either party is not proper if disputes remain as to material facts.” Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1999). Instead, “. . . the court must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Id. 

SORVTA HAS EXPANDED 

The Court acknowledged that the Supreme Court upheld the retroactive application of sex offender registries. Smith v. Doe, 538 U.S. 84 (2003)[1]. Likewise, the court also acknowledged that the Sixth Circuit previously upheld Tennessee’s sex offender registry laws against similar challenges. The Court also noted that two key changes have occurred. First, SORVTA had grown in layers as the Tennessee General Assembly expanded the scope of its restrictions and the content of its reporting requirements. Second, the contours of Sixth Circuit precedent had changed in the intervening years.

Though the Sixth Circuit had upheld Tennessee’s sex offender registry laws in the past, including the 2004 enactment of SORVTA, the Tennessee General Assembly continued to tinker with SORVTA, minimizing its resemblance to the statutes that were before Sixth Circuit at the time. Although the Sixth Circuit upheld SORVTA and its predecessor in the face of similar constitutional challenges, it has since found Michigan’s parallel scheme to be unconstitutional as applied to a select group of plaintiffs, therein clarifying the analysis that must be employed when addressing these types of claims. See Does v. Snyder, 834 F.3d 696, 699 (6th Cir. 2016), cert. denied, 138 S.Ct. 55 (2017). Despite the state’s argument to the contrary, the Court considered Snyder to be binding precedent. The Court noted, “In sum, SORVTA, in its current form, is no longer of the same character of the iterations that were upheld by the Sixth Circuit. Likewise, Sixth Circuit precedent since Cutshall v. Sundquist, 193 F.3d 466, 474 (6th Cir. 1999) and Doe v. Bredesen, 507 F.3d 998, 1001 (6th Cir. 2007) has clarified the analysis this Court must apply in the present case.” See Opinion at 11.

THE COURT’S DECISION

The Court began its analysis with the Supreme Court’s decision in Smith v. Doe, (2003). In Smith, the Court established an “intents-effects” test when weighing challenges to sex offender registry laws under the Ex Post Facto Clause. 538 U.S. at 89. Under the “intents-effects” test, the Court asks: (1) did the legislature intend to impose punishment; and (2) if not, is the statutory scheme “so punitive in either purpose or effect as to negate [the State’s] intention to deem it civil.”

The Court correctly used the framework of Kennedy v. Mendoza-Martinez (372 U.S. 144 (1963)) to determine if SORVTA violates the constitution. There are seven factors to be considered. Courts have consistently concluded that one or more of the seven factors are not relevant when examining sex offender registration schemes.

The factors the Court considered are:

(1) Does the law inflict what has been regarded in our history and traditions as punishment?

(2) Does it impose an affirmative disability or restraint?

(3) Does it promote the traditional aims of punishment?

(4) Does it have a rational connection to a non-punitive purpose?

(5) Is it excessive with respect to this purpose?

The Court concluded that retroactive application of SORVTA is unconstitutional as applied to Doe. By doing that, the Court dodged the question of whether or not SORVTA is facially unconstitutional in terms of how it chills free speech due to the requirement that internet identifiers be disclosed. Generally, a statute is facially unconstitutional if “. . . no set of circumstances exists under which the Act would be valid.” However, due to the unique nature of free speech rights, the Constitution gives significant protection from over-broad laws that chill speech within the First Amendment’s vast and privileged sphere.” Ashcroft v. Free Speech Coal., 535 U.S. 234, 244 (2002).

NARSOL is excited about this case because it is another step in building the body of case law which will help us in our long-term goal of elimination of the nightmare of public registration. It is worthwhile to note that the court mentioned that the Tennessee Supreme Court had fired a warning shot several years ago which the legislature chose to ignore. The court stated, “. . . the possibility that an amendment to the registration act imposing further restrictions may be subject to review on the grounds that the additional requirements render the effect of the act punitive.” Ward v. State, 315 S.W.3d 461, 475. The lesson for lawmakers would be to stop while you are ahead. Unfortunately, we do not expect that to happen because the political pressure is significant due to widespread public support of registries. Our most significant challenge is to change public opinion.

 

[1] It is noteworthy that Smith was decided at the trial court on “motion for summary judgement” which was discussed in detail above, which meant that the Supreme Court did not find the frightening and high recidivism which causes so much consternation.

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Larry Neely

Larry serves as NARSOL'S treasurer, publisher of the Digest, and co-chair of the conference planning committee. He also hosts the "NARSOL in Action" and "Can They Do That?" webinars and is a regular on the "Registry Matters" podcasts.

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    • #72856 Reply
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      WC_TN

      Here’s what I can’t wrap my mind around: if the registry has become so burdensome that it is punitive when applied retroactively, why is the scheme NOT PUNITIVE when applied prospectively? Is this an example of the old “You had ample warning before you did the deed?” mentality at work?

      What think ye, Larry, the wise and ancient one?

    • #72880 Reply
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      Jim

      None of the aspects of sex offender registration are ever going to change PERIOD. There has been years of futile fighting this monster. Everyone is saying its against our rights and it is for sure. But the real truth is that no one has rights in the USA anymore. Rights have been replaced for “safety” and eagerly accepted by the weak American people. The constitution, as a whole, has always been walked on by the government, the bill of rights has turned into the bill of temporary privilege’s approved by the weak people. If you **** up like we have, then the whole legal system has for sure, ****ed us back. And sad for all of us, as it is for a life time. A sex offender and their attorney fighting the registry is simply like a person farting at a hurricane in an attempt to make it change directions. The biggest example now is that Americans no longer have the right to go to work to support their family and keep their own home without the risk of being arrested. The government just jerked the rights from EVERYONE! Again NO ONE in the USA has ANY RIGHTS anymore, except the governors, prosecutors, police and law makers. The only hope we have is for all of us to get together and all at the same moment say **** you and refuse to comply with the demands placed on us. They don’t have enough prisons to contain everyone on the registry so what could they do??????? Until we do this we will NEVER be free. The legal fight has proven to only make lawyers rich. Is anyone ready and had enough yet?? The NARSOL is a great platform to get this started if everyone will stand up together. Lets get together, not with lawyers but with US THE PEOPLE. Respond to this if your interested. Thanks for reading.

    • #72888 Reply
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      Tim in WI

      @Larry,

      I still believe the court’s are missing the point.
      What makes s SO registration “punishment” is the relative disposition forced between man and machine by law. Registration is plain indentureIn database machine AND it’s maintenance. Individual sovereignty is at stake as free men are paid to maintain machines. And when the use of the database abridged that liberty AND Congress opted for the words in text ” a person who was in prison, on parole, on probation on extended supervision…….. for a sex offense” (codified statute) renders unquestionably punitive INTENT. The queer application of the regime to a past conviction as J.P. Stevens put it ” as both necessary AND sufficient condition to impose it upon them AND only them proves otherwise. ”

      The very purpose of the prohibited use of ex post language IS TO PROTECT FELONS (public safety) after conviction from govt forces imposing more pains and penalty. The

      During the hand full of FTRs I’ve faced I always enjoy putting the clerk of courts on the stand in pretrial hearing with the sex offense case file in tow. I merely ask her to read out loud the part of the record that describes the duty to register. There is nothing in the record naturally because I’m ex post. It’s empowering and cathartic to do it and see the ADA squirm because I can prove the indenture was not lawfully done by court order.

    • #72886 Reply
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      Phol

      @ Jim

      Very true. In the name of “public safety” politicians & law enforcement are allowed to do whatever they want with complete disregard for the truth. For “Public Safety” they can make any and all claims about anyone or anything as if it were truth.

      The media is completely at fault for fueling this ability, and the uneducated public for letting it happen.

      I continue to state, I do not understand why we only fight and argue over the “RULES” of the registration. We should be soley focused on abolishing the registry and anything of its kind.

      The scheme & it’s application are nothing short of Crimes Against Humanity.

    • #72883 Reply
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      Vito Lombard

      The frustration and anger over how easy it is to make laws, yet seemingly impossible to over turn laws. As the law stands it is a reality that the registry of sex offenders and the laws amended were expected to be a snowball effect or a “did not see that coming.” I can go to college, if a college accepts me, however, upon obtaining my degree (in Social
      Work) I cannot find a fitting job. I cannot obtain a CASC or work in substance abuse as a counselor, however, I have the knowledge. I can be a quiet citizen who pays his child support, but my children who are not my victims cannot live with me; has had no police contact, yet still federal funding for housing I cannot apply for as I am a registered offender (had I not been in the registry would that change things)

      So from where it apparently stands for the next decade or century is in the hands of a society that we are striving to build relationships with (the society that has been victimized from the days of slavery times as owner raped the women and made children and also had no idea how this would impact a society; we are now paying for all that and what ever else can be piled on to it.) You are talking about that society? The not forgotten and possibly never forgiven… I am looking at history and how far we think we’ve come in intelligence, dignity, pride, integrity, respect, responsibility. The team of individuals who have established this blog and all of you that are in this balancing act of seeking equal justice, I applaud you and your undying support. I salute you for striving to make it happen. I pray for this country and its government as well for all that are in a fight to protect our constitution and rights.

    • #72894 Reply
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      kat

      Most of the TN Legislators are “bible-thumping, hypocritical, good old boys”. They promote Bill after Bill in the name of “safety from those dreaded sex offenders”, to their constituents.
      What better way to keep your cushy government job, tell the people what they want to hear, even if it’s lies, even though it will destroy the lives of registrants and their families.
      TN legislators make me sick.

    • #72897 Reply
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      Tim in WI

      @phol,
      The leftist media played said shame card upon the Catholics Priests first!
      Abortionists also attack the credibility of the churches tacit approach to sexually frustrated men who take out their need for sexual secrecy, an affect to appear as benolence, on underage males within the flock. Oddly both the media and priests are guilty of exploitation of children tho for different profits motives.

      Exploitation comes in many forms. Let me not understand why the first touch was not the last! Most young males are naturally aggressive! A truth is some folks figure it like this. How can a reasonably balanced society freely permit a woman to pay for the ending of a truly defenceless life in fetus while simultaneously imprisoning males for inappropriate touching of private parts or looking at child sex images. I must hold accountable one vastly more abhorrent and abundant. Has NCMEC made a statement on abortion? Does anyone who has suffered abortion vote? Certainly that is not possible. Can a database prevent human behavior? Can a database prevent anything without first “in effect” imposing affirmative restraint……….. first? No, not in any conceivable parameter. The immediate restraint in DOE03 was not mentioned, that being the citizens right to remain silent to the government database. Scape goats for surveillance saints.
      Resistance is futile you must comply.

    • #72910 Reply
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      PAMELA S.

      I know it feels hopeless, but it is not. Democracy is hard. This is the kind of work that ensures democracy. Temporary restrictions on our freedoms SHOULD be watched carefully, and then fought against at the proper time. Registration will go away in the same way it was imposed – one minute turn of an individual cog. We are each a tiny, insignificant cog in the machine. But we are all attached to other cogs, which turn other cogs, which, taken all together IS Justice. The cogs of justice turn too slowly for us. But it is an act of faith and hope that justice will be served, eventually. All large endeavors seem fruitless at the beginning. It’s like planting a vineyard. It takes at least two years for a vineyard to produce fruit and then four years for the delivery of the first bottle of wine. But if no one did it, we would never have wine.

    • #72917 Reply
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      Perry

      Ok. Evidently My First Two attempted posts aren’t worthy of being posted. So I’ll try this another way.
      Every State that uses Fearmongering to promote The ‘Legislative Cause’, especially in The South, will always get away with their current way of life unless you come at them with an Arguable, Winnable Claim as to how The Registry Hurts You more than It protects the Society it claims to.
      Done.

    • #72945 Reply
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      d

      I am starting to think Jim has the right Idea, but part of me thinks they would try to put a million people away if we tried. I think they would let out all but murders to make room for sex offenders. There has to be a price the public is not willing to pay for this BS then will we have our freedom.

    • #72977 Reply
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      Dan B

      “(1) Does the law inflict what has been regarded in our history and traditions as punishment?”

      How can restricting where I may work, live, and recreate be seen as anything else? The Scarlet Letter is probably no longer standard fare, but it should be. Don’t think for a minute the public shaming of the puritans had any other purpose than punishment, and that is surely 75% of the reason any public registry exists.

      “(4) Does it have a rational connection to a non-punitive purpose?”
      Ok, this one floors me. The Mt. Everest size body of evidence from countless research studies has proven beyond any reasonable question that these laws have zero rational connection to their stated purpose. We shouldn’t even be talking about this any more.

      For these reasons I’ve concluded we’re way beyond the appeals and supreme courts serving in their capacity of checks and balances against the legislature. Somewhere in our history the members of our three branches figured out it was way more beneficial to their personal egomaniacal quest for power to actually cooperate vs being naturally adversarial as the founders intended. The slow but steady increase in government power overall to levels hardly imagined in anyone’s wildest fantasies 150 years ago prove that. No court member wants to let “monsters” free any more than does any legislator, and that drives everything (or halts it, as the case may be.)

    • #72975 Reply
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      Mary Roberts

      I wholeheartedly agree. It will take ALL OF US. People required to register, and their families. There have to be over a million people on the registry by now – I haven’t looked lately. Add Moms, Dads, Wives, Husbands,Brothers, Sisters, Children and there could easily be 4 million people. If those 4 million people acted together at one time, I have to believe it could make a difference.

    • #73017 Reply
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      Lloyd

      The way around some of the provable issues is to prove the harm and loss of family members of registrants… the children and spouse. How are states victimizing a portion of the public to protect another segment of the public? Public Safety? Who is the public? They are not protecting my family members, so it is not public safety but it is selective safety. The irony of all of this is how ludicrous that any reasonable person decrees that the registration is not punitive. Anything I’m required to do physically that has a punishment of imprisonment IS PUNISHMENT. DMV every 4 years requires physical attendance if I want a renewed license. But I’m not imprisoned if I choose not to go; I simply don’t get a license to operate a vehicle. The level of absurdity of our legislators is astounding.

    • #73046 Reply
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      aurelius

      Yet in Michigan little has changed, those who were put on before the 2011 laws were passed still have to register. NOTHING HAS CHANGED. The Judge’s SEVERAL rulings are all but ignored. And they wonder why riots are happening around the country. People are fed up. This is truly the age where laws are now lawless. Here’s to hoping most of you make it to the other side safe.

    • #73357 Reply
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      Keith

      TN is a Bible thumping state. It will never change. It will always find a way around the courts.
      I also agree that these cases serve an individual and not the group as a whole. So what good does it do?
      Thanks NARSOL but I just don’t see any change. TN still has the mark on our driver’s license even though La (Louisiana) case said it was unconditional. That came down from the 6 CIR and yet TN refuses to remove the mark..

    • #74808 Reply
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      Jamba

      @ Jim
      You are so right ! They have chiseled in stone “ for public safety “ . The fact that they are able to outlaw the ability for us to feed and educate our children in the name of “ public safety “ should tell you they are ignoring the constitution. Communism is about the common good . The constitution is about personal responsibility . Americans have become so weak that they need a mother ( the government ) to protect them . If we don’t stand up as one and scream @#$# you and we are not going along with your unconstitutional tyranny it will never change .
      All the judicial theatre where they wordsmith their way around the constitution with “ public safety “ will help us not . I know these laws are unconstitutional , you know these laws are unconstitutional, they know these laws are unconstitutional but without enough Americans standing up to refuse to obey them they win .

    • #75225 Reply
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      John Doe

      The US Constitution was written to enslave the free under one conglomerated government.
      It is working exactly as planned.
      The only solution to the registry problem and all the others is a constitutional convention to repeal much of the federal document that continues to enslave us.

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