By Larry . . . After years of legal wrangling, there has been a favorable decision in an important case in Tennessee. The case was initiated on November 8, 2016, along with a motion for a protective order. At that time the governor of Tennessee was named William Haslam, so he was the defendant in his official capacity along with the director of the Tennessee Bureau of Investigation (TBI) whose name was Mark Gwyn. It was two separate, but identical complaints filed by the same attorney. The two cases were consolidated for the purposes of case management, discovery, and pretrial motions. And of course, the state tried every conceivable avenue to get the complaints dismissed, and they failed. They failed because the landscape has changed due to the ruling from the Sixth Circuit in Does v. Snyder. Tennessee is in the Sixth Circuit, which makes Does v. Snyder controlling case law.
The two John Doe plaintiffs each brought a separate action against the governor of the state of Tennessee and the director of the Tennessee Bureau of Investigation, each in their official capacity only. In their respective complaints, plaintiffs alleged that the retroactive application of the Tennessee Sexual Offender and Violent Sexual Offender Registration Verification and Tracking Act of 2004 (1) is an unconstitutional violation of the Ex Post Facto Clause of the United States Constitution, (2) violates the right to free speech guaranteed by the First Amendment, and (3) imposes oppressive restrictions in violation of the rights to parent, work, and travel under the Due Process Clause of Fourteenth Amendment.
The Sixth Circuit had previously upheld Tennessee’s sex offender registry laws against challenges similar to those plaintiffs brought in these two cases. SeeCutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999). The problem is that legislatures just can’t help themselves, and they keep piling on more and more restrictions. 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 contracting registrants’ level of confidentiality. 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 On June 8, 2004, SORMA was repealed and SORVTA was enacted.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 the underlying offense was categorized as “violent.” It was the violent classification that appears to have helped John Doe #1. He had no history of violence.
Quoting from the opinion, the court stated, “Indeed, the Sixth Circuit’s decision in Snyder I has reshaped how district courts in this Circuit analyze challenges to sex offender registration laws under the Ex Post Facto Clause. In their Partial Summary Judgment Motion, Plaintiffs rely heavily on the ruling in Snyder I, arguing essentially that SORA is substantially identical to the Michigan law at issue in Snyder I and is in violation of the Ex Post Facto Clause.” See Opinion at 19. In Snyder I, the Sixth Circuit held that Michigan’s Sex Offenders Registration Act imposed punishment and that therefore the retroactive application of MSORA’s 2006 and 2011 amendments was unconstitutional as violative of the Ex Post Facto Clause. Does #1-5 v. Snyder, 834 F.3d 696, 699 (6th Cir. 2016). The court in Snyder I took issue with three parts of the statute, which cumulatively made the statute unconstitutional under the Ex Post Facto Clause: (1) the prescription of restricted zones where plaintiffs could not loiter, live, or work, (2) the public classifications to which plaintiffs were subject, and (3) the reporting obligations under MSORA.
There were some claims that survived the state’s motion to dismiss that were not decided by the judge. The plaintiffs asserted that the law violates the right to free speech guaranteed by the First Amendment and imposes oppressive restrictions in violation of the rights to parent, work, and travel under the Due Process Clause of Fourteenth Amendment. Those claims were not decided because the court was able to grant the relief, they sought on the Ex Post Facto Clause. This is standard for courts. They do not decide issues when it’s unnecessary; however, the court did make it clear that these issues are not frivolous, but they will have to wait for another day.
It is not known at this point if the state will appeal. Generally speaking, the odds are good that they will because they are hard wired to appeal every finding that a statute is unconstitutional. There is a slim chance that they may not in this particular case because the controlling precedent in the Sixth Circuit will be difficult for them to overcome, and they will have to be really creative to distinguish Tennessee’s registry from Michigan’s. There was a recent decision from the Sixth Circuit that held there is an independent duty to register under federal law. This unfortunate decision may inspire them to appeal. See Willman v. United States Attorney General, No. 19- cv–10360 (6th Cir. 2020).
Larry serves as NARSOL’S treasurer and is publisher of the Digest. He writes the “Legal Corner” column for the Digest and legal analyses for the NARSOL website. He is a regular on the “Registry Matters” podcasts.