Ninth Circuit Reinstates SORA Challenge in Idaho

By Larry . . . This case consisted of a group of 134 plaintiffs who had filed a lawsuit in the United States District Court for the District of Idaho. Their complaint raised a number of claims challenging many aspects of Idaho’s Sex Offender Registration Act (SORA). The trial judge granted the state’s motion to dismiss the complaint. The case was appealed to the United States Court of Appeals for the Ninth Circuit. Unlike at the trial level, appeals are decided by three-judge panels. The Court of appeals will be referred to as the “Appeals Court” and the trial judge will be referred to as the “district court.”

SUMMARY OF THE DECISION

The appeals court reversed in part and affirmed in part the district court’s dismissal of an action alleging that the retroactive application of Idaho’s Sexual Offender Registration Notification and Community Right-to-Know Act, Idaho Code § 18-8301, et seq., is unconstitutional. For the sake of limiting the length of this analysis, we are omitting discussion regarding the dismissed claims which were upheld by the appeals court. The appeals court held that the district court erred in dismissing the ex post facto claim on the basis that SORA was civil in intent and not punitive in effect. Specifically, the appeals court held that the district court erred by (1) construing appellants’ ex post facto claim as an as-applied challenge; (2) applying the “clearest proof” standard at the motion to dismiss stage; and (3) finding the outcome of the Smith v. Doe, 538 U.S. 84 (2003) factors analysis to be controlled by precedent. The appeals court held that to survive a motion to dismiss, appellants only had to plausibly allege that the amended SORA, on its face, was punitive in effect and case law did not foreclose a finding that SORA was punitive.

HISTORY OF SORA

The state of Idaho began requiring sex offender registration in July 1993. It initially imposed only a duty for persons convicted of certain felony sex crimes to register with their local sheriff. In 1998, Idaho passed SORA, imposing the more expansive framework still in place today, designed to create public access to information about persons convicted of sexual offenses. In addition to creating a central registry of public sex offender information, SORA expanded the category of offenders required to register, codifying a catalog of eligible offenses in Idaho Code § 18-8304. The 1998 version of SORA required all registrants to undergo a “psychosexual evaluation.” Registrants convicted of a subcategory of offenses, listed in Idaho Code § 18-8312, and found to pose such a risk based on their evaluation, were deemed “violent sexual predators.” All registrants, except for violent sexual predators, were eligible to petition the district court for a show cause hearing to determine whether the person could be exempted from the registration requirements and its obligations after a ten-year period of registration. The 1998 act was applied retroactively to any person convicted of a newly-eligible offense after July 1, 1993. The act was also applied retroactively to anyone who entered the state of Idaho after July 1, 1993, who had been convicted of any crime that was “substantially equivalent” to the act’s listed offenses.

As what has been the practice in most states, the Idaho legislature did not stop heaping on requirements after the 1998 amendments. They amended again in SORA 2001, 2002, 2004, 2005, 2006, 2008, 2009, 2010, 2011, 2012, and 2013. Each set of amendments was applied retroactively in the same manner as the 1998 act. In general, these amendments expanded SORA’s framework, adding to the list of eligible offenses and heightening the obligations of registration. Opinion at 8. SORA was significantly changed in 2011. As in prior years, new offenses were added to the list of crimes requiring registration. There was also a significant increase in the amount of information required at registration and a decrease in the amount of time provided to comply. Additionally, registrants were newly required to provide advance notice of any travel lasting longer than seven days and to provide in-person notice of their presence to law enforcement in the jurisdictions they travel to. Opinion at 8.

MORE DETAILED ANALYSIS

We are focusing this analysis on the three most significant aspects of the appeals court’s decision. The appeals court held: (1) the district court erred in construing Appellants’ ex post facto claim as an as-applied challenge; and (2) it erred by applying the “clearest proof” standard at the motion to dismiss stage; and (3) it erred in finding the outcome of the Smith factors analysis controlled by precedent.

First, in Seling v. Young, 531 U.S. 250 (2001), the Supreme Court held that ex post facto claims based on the punitive effect of purportedly civil statutes cannot be construed as “as-applied” challenges.  Id. at 26365; Young v. Weston, 344 F.3d 973, 976 (9th Cir. 2003). Rather, courts must evaluate a law’s punitive effect based on a variety of factors—such as the terms of the statute, the obligations it imposes, and the practical and foreseeable consequences of those obligations—in relation to the statute on its face. See Seling, 531 U.S. at 262; Young, 344 F.3d at 976. Opinion at 12.

Second, the “clearest proof” standard refers to a plaintiff’s ultimate burden to sustain an ex post facto challenge. When a statute is expressly civil in intent, the Supreme Court has stated that only the clearest proof is sufficient to override the legislature’s intent and render the putatively civil regulation a criminal penalty.  Smith, 538 U.S. at 92. To survive a motion to dismiss, however, Appellants only had to plausibly allege that the amended SORA, on its face, is punitive in effect. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Daniel v. Fulwood, 766 F.3d 57, 61–62 (D.C. Cir. 2014) (“At the motion to dismiss stage, of course, a plaintiff need only show that his ex post facto claim—like any other claim—is ‘plausible.’ ”).

The appellate court noted that, “Accepting the allegations in the First Amended Complaint as true, all Appellants are retroactively subject to lifetime registration terms. By the SORA amendments, Idaho has retroactively imposed—in addition to heightened registration obligations—restrictions on housing, employment, and travel. Registrants are prohibited from being on or within 500 feet of school grounds when children under the age of eighteen are present, with some exceptions. The same restriction applies to where registrants may reside. Registrants now must provide notice to law enforcement both before and during certain kinds of travel…” Opinion at 13.

Third, the appellate court explained the reason why Smith v. Doe is not controlling precedent. It appears that they have found the case of Does v. Snyder, 834 F.3d 696 (6th Cir. 2016) to be persuasive. The Snyder court explained their reasoning why Smith was not controlling in their decision. They Snyder court held that, “A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by—at best—scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law.” Does v. Snyder, 834 F.3d at 705.

This case will be returned to the district court for further proceedings, which may include a trial on the remaining issues. Due to the volume of litigants and complexity of all the issues, this case is likely to drag out for years. In the end, NARSOL is hopeful that the case will result in a favorable outcome.

The discussion of this decision and this issue on the Registry Matters podcast with Larry and Andy can be heard here.

 

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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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    • #79028 Reply

      Perry

      Well here it is again. Same old song and dance routine. What I’ve garnered from all this is: Idaho; like all the rest of the states, will just do whatever the hell they want to until there’s NOBODY left to further persecute, villainize, or send Vigilantes after anymore. It’s all going to end up being like The Old West again. Shoot first, and forget the Questions after, because the questions don’t count any damn way! I want Legislators-Federal and State-to just come out and tell the damn truth: They want to create Sanctioned Murder Laws, so that people can hunt Us down and kill Us! The want a ‘Purge’ type set of Laws, just like in The Purge Movies! We all know-and so do they themselves-that this is what it’s coming to anyway. Another thing: We all also know; there won’t be any REAL Criminal Justice Reform, so long as they continue to ignore Registry Related Laws and Notification Requirements. I’ve been telling My Senator in Pennsylvania, to do just that: Tell The Damn Truth And Quit Lying, Because This Is What You Want Too!!

    • #79031 Reply

      Case No.2:16-cv-13137

      Looks like they’ve finally acquired “grounds for scrutiny”. When I challenged the state and SORNA in its entirety, the best weapon I had was NOT my complaint of being unlawfully bullied and threatened by the city prosecutor, but was in fact my CONSTITUTIONAL complaint. I would like to offer using my experience. Challenge the VAGUENESS of the “student safety zone” previsions. Ask the defense and ask the judge; “where is the epicenter of the Student Safety Zone?” “Does it start from the PROPERTY LINE, or the CENTER OF THE PROPERTY, or the front door? Or does the Zone start from the FLAGPOLE of any school?” If they blow off the inquiry, ask this; “what SHAPE is the Student Safety Zone? Because if the zone (hypothetically starts from the property line {HOWEVER NOT DEFINED IN SORNA LITERATURE}) starts its 1500 feet from the edge of a SQUARE shaped property (like most school property in America) then shouldn’t the Student Safety Zones (as defined in SORNA literature) be shown on maps as squares and not CIRCLES?

      • #79057 Reply

        Erich Raulfestone

        To damn soft!!!! Let them be SO’s for a year and WE get to beat the $–t out of them w/o the law interfering!!!!

        • #79266 Reply

          Crash

          -Eric Raufelstone

          I understand your frustration but I don’t think we should act the way they (and the citizens that they represent) do. We ought to be the better person. From what I’ve experienced myself, I know that these sort of people are evil and we shouldn’t put ourselves on their level. We are to be good and act/speak fairly and justly, any chance that we get.

          They are liars for sure, and there are a number of so-called “scum of the earth” that could do more good than they ever could.

    • #79037 Reply

      CherokeeJack

      The Government will spend untold Billions of dollars to win cases every year just on the principle of them not wanting to be proven wrong. If we bring a case ourselves as individuals, we lose because we cannot afford to fight all the way to supreme court. If we bring a case as a group, the Offender registry legality gets threatened so they throw unlimited resources at us until be bow under pressure. Or that add new rules to punish us more and make up for the ones we got thrown out.
      Even worse is like Michigan where the states just plain ignores the courts rulings for years. Since the courts “seem” to have zero enforcement powers, why should they comply.
      I also find it funny how two different courts can see things so differently.

    • #79038 Reply

      Tim in WI

      Plausible Deniability
      The politicians go to plan.

    • #79049 Reply

      Robin Vander Wall
      Admin

      Well done, Larry. Good analysis and easy to follow. This is something exciting to watch.

    • #79047 Reply

      Joseph

      Let’s talk about the requirement to notify the sheriff of travel.
      How can one always know that he will be away from home for a period of time, in this case more than 7 days. How can one always know in advance that he has moved. For example, you might intend to visit a friend or relative out of state for a couple of days but when it’s time to return home there is a compelling reason to extend the visit past the seven days’ requirement. Are you supposed to return home, without regard to distance or expense, to do the required notification and then return to where you were visiting?
      Same for moving out of state or even the country. You might travel to visit a friend or relative with no intention of moving, but once you get there an opportunity presents itself and you decide to stay permanently. Assume that you might be a thousand miles from your previous home, you have no personal property to go back for, yet, you have already violated the SORA by moving without prior notification.
      Furthermore, there is no clear definition of exactly what a change of residence address is. Are they assuming that if one is gone longer than seven days that he has changed his address without notification?

    • #79048 Reply

      Ollie Octopus

      I was an attorney for 26 years but I have no idea what they are talking about, and I don’t think they know either. It is just plain BS. So what if someone sees your name on the web and shoots you? You are not human. “As-applied challenge; and “clearest proof”??? All they want to do is try to make themselves sound smart. Are these laws additional punishment? Of course they are! But they could care less.

      • #79304 Reply

        Crash

        -Ollie Octopus

        That is the terrible reality for SOs. Very few people could really understand how it is for them, unless their relative or themselves were to become one. It is a never-ending doom to be an SO, even in freedom out in the community.

        It is a shame and great evil, that the same society that is hellbent on the destruction of SOs is the same exact one that actually creates a number of them (through the adult film industry for example.) Most people will continue to hold their heads high as they look down on SOs. Lawmakers and politicians can’t even appear to speak or act in the favor of SOs.

        Recently the California Supreme Court ruled that people who were convicted of non-violent crimes may be eligible for early parole.

        This bit is from an article I read:

        “Former Gov. Jerry Brown, who championed the 2014 initiative as a way to reduce prison populations and costs by speeding up chances for parole, has repeatedly said he and other proponents never intended for it to cover sex offenders.”

    • #79052 Reply

      mut

      ‘time consuming and cumbersome’

      * i didnt think government could seize a person without a warrant or probable cause, or subpoena.

      * being worth more than 200k to the state per year per individual makes it smell a lot like how this country was founded: upon the involuntary backs of a disenfranchised, demonised and dehumanized subclass.

    • #79060 Reply

      R.Arens

      “Civil in intent”?…. I could see that as a valid argument if it didn’t involve incarceration, hefty fines, and prolonged registration for a violation of the statute. When I think of the word civil, it’s separate from criminal. It’s a place to go to argue petty things like a complaint to clean up the junk in your yard or a child support modification. To sue your former tenant who owes you 5 months rent. The majority of stuff I ever heard of being handled civilly ends with a monatary penalty being assessed, not a ridiculously massive jail sentence. You could refuse to sign up for selective service when you turn 18 and get a slap on the wrist for it compared to not registering as a sex offender. Both are victimless non-violent paper crimes. I think it’s a crock that states cloak their overly punitive laws in civil lingo to pass constitutional muster. I hope someday a judge with honest to God non-corruptible integrity sees past the states smokescreen and renders a verdict that is fair for all.

      • #79123 Reply

        Joseph

        You can thank ALEC (American Legislative Exchange Council) for state legislatures planting language in their state legal codes that states that the sex offender registry law is civil in nature.

        A little over ten years ago a judge in Missouri did exactly what you said. He stated in his opinion that though the law said it was civil, it lost that distinction when they hung criminal penalties on it. That was overruled on appeal, and I’ve never seen such language again.

    • #79066 Reply

      mut

      registering and keeping the registration current is akin to “tending the crops.”

      • #79122 Reply

        Joseph

        We may never get rid of the registry, but we can possibly extract ourselves from its maintenance. Persons who have completed their sentences should never be made to leave their homes and travel somewhere at the behest of the government, except for jury duty.
        The government has innumerable ways to get your residence address. There’s no need to have to leave home and report to the sheriff’s office. The sex offender registry is nothing more than a relational database and every person is a record in that database. I completed my sentence in its entirety over 5 years ago. Why should I be made to keep their database record current? Those who have not completed their sentences can report the required information to their probation or parole officers and those officers can update the database. Why should the sheriff’s office have to hire an entire squad of personnel tasked with this database maintenance?

    • #79071 Reply

      Jim

      Hey Perry now it looks like you finally might agree with my thoughts that this will NEVER be resolved. Dont wait for the legal paths to be exhausted because they were exhausted when these laws were created. The only way is for civil war. We are at war, F the court system. The USA is totally Communistic and run by the new socialist’s regime. Everyones rights have been removed via the ” pandemic “. Narsol will not allow me to inform sex offenders how they can LEGALLY protect themselves. I have absolutely no fear of vigilantes, they will never make it out of my house alive. I guess this is supposed to be a family type area where we cant say anything to scare people or to show how we have the right to defend our selves. Playing pattycake with the judges is a farce. I would rather die on my feet than live on my knees.

    • #79077 Reply

      Tim in WI

      Larry,
      Goes to the efficacy of the district courts thinking in analysis. Confusion surrounding the difference between facial challenge to plain text use by congress, versus an as applied challenge to use by the administration.

      The same types of errant legal conclusions happen during my half a dozen FTR cases. Judges like to think there is no difference between those who’ve waived civil right by signing a plea agreement & standardized form versus in the FTR scenario whereby the defendant had not waived the right to defenses available.

      The presumption hefted by the ruling Connecticut DPS is unreliable in that case precisely because such fact are a matter of guilt & fodder for the FTR Jury, therefore not bootless. Naturally only the not actually being guilty person would refuse to waive public trial.

    • #79101 Reply

      A Mistake They Made

      RSO are all worker drones. They have been stripped of their civil rights. They have the right to work, pay taxes, and fees. This will continue and get more intrusive and restrictive until people start to snap, and make the registry too costly of an option. This society deserves what it gets!

    • #79121 Reply

      Jim

      Hey A Mistake They Made. Now you are talking with truth. This all will get worse until we bark HARD. The so called justices and judges think they are untouchable and their way is the only right way. The truth is that NO ONE is untouchable, Not even these arrogant judges and politicians. Cant beat this in the courts. But WE CAN BEAT THIS in another way.

      • #79139 Reply

        A Mistake They Made

        Play by the rules and start to win they will change the rules so you lose. They keep moving the goal posts in a country were it is supposed to be illegal to move the goal posts because of ex post facto. I am tired of playing by the rules and getting f-ed over by these clowns! Just watch how you talk they are changing the rules on the 1st amendment too. It wont be long now we will be a subclass of slaves to an upper class of slaves all with no constitutional rights. I have been watching this sad story play out for so many years and they know we know and they do it anyway. These people have become too bold and do need a lesson. Just be careful what you say on here, and of course don’t break any laws.

        • #79220 Reply

          w

          By all means break their bs laws, but just don’t be a criminal. Subservience to their injustice is throwing down the gauntlet before realizing there was ALWAYS a choice to fight. They were never going to play nice anyway. Why make it easier?

          They want people to “reintegrate”, of course. Reintegrate with the mindless herd that accepts the world and raises grandkids and watches “The Price is Right”. Sure, let the decades go by so they can finish paying off the homes they built with YOUR SUFFERING.

          You have to fight. Get smart. Get REALLY smart. And fight. Don’t expect them to give an inch. Don’t expect them to suddenly have an epiphany and be remorseful for their corrupt system. Don’t expect any kind words from anyone who believed in this BS. Don’t hold out for any of that. They know what they did and they are always shuffling to try and not let the dirty secrets of their social engineering experiment get too much attention.

    • #79956 Reply

      mut

      hope they made the judge pay for the expense of the appeal

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