Awesome victory in Tennessee

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).

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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.

  • This topic has 1 reply, 2 voices, and was last updated 1 week, 1 day ago by Sandy RozekSandy Rozek.
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    • #80782 Reply
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      J

      Sadly as we learned in PA, Ex Post Facto is not the route to go. The Legislature in TN can “fix” it and apply the new version to everyone again.

      • #80792 Reply
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        Tim in WI

        @J,
        Yes the state’s legislature can opt for new laws except the application does not have the presumption if ” civil intent” attributed to the regulatory regime by the ruling in DOE03.

        Sooner or later the courts will be forced to identify ” registration ” in terms of the 13th Amendment. Why? The registry is DOC property, machine database property, like a prison intended to impose affirmative restraint and liability.

      • #80811 Reply
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        Sean

        Can someone please provide the case cite for the above? It is not mentioned in the article. I am in Tennessee and will likely be impacted by this decision. I have an old (pre 2004) case that lists me as a “violent” offender” in Tennessee requiring life registration.

        • #80860 Reply
          Sandy Rozek
          Sandy Rozek
          Admin

          Sean, it is there in the fourth paragraph, end of fourth sentence. The link is on “Opinion.” Sorry it isn’t more obvious.

      • #80826 Reply
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        Tim

        Probation/Deferred Adjudication is a plea bargain i.e. negotiated contract between two parties. This contract has a commencement date and a completion date.

        The Fed Gov and States by Ex Post Facto decree, violate the terms of the contract. In so doing they create an injured party.

        Suing for Breach of Contract should be a viable strategy and there are numerous references to government contracts in the US Code/Uniform Commercial Code.

    • #80806 Reply
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      mut

      should be hard for them to re-legislate from behind bars.

    • #80808 Reply
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      Capt Charles Munsey Jr. USN Ret

      How are we ever going to get unity in this nation with the Constitution being ‘one sheet of music’ and each state having its own ‘sheet of music’ that may or may not be in tune with the constitution? The more I monitor situations in this nation the less I see of ‘united’ in United States. Why can’t we have one set of laws that apply to all citizens instead of fifty sets of laws that can apply to citizens as they exercise their rights to travel from state to state? I do believe that this is something like ‘Hogan’s goat’.

    • #80820 Reply
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      Marty

      I am glad Larry ….and whomever else was involved actually won this decision. It is sad ….but predictable…that TENESSEE…has many “non critical thinking” people in legislation….TN is making some progress…..being more progressive, in its political issues regarding sex crime law….but obviously, there is a lot of people who need to SPEAK UP…..and make sure these indolent politicians protect, not just victims, but defendants. Uhhh, kinda basic stuff….all people, need privacy….and reasonable punishment.

    • #80823 Reply
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      Dr.Poop

      I’m missing something here. Exactly what was the awesome win and how many does it effect? I’ve read this over and over. I may be lacking some brain cells and I hate to show my ignorance but I’m serious.

    • #80830 Reply
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      Perry

      A Win-however small-is still a Win FOR NOW. Yet; The State will try something else…bank on it! Nuff Said!

    • #81220 Reply
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      Chuc

      I live in TN. Tennessee will appeal appeal appeal. They will scream and cry at every hearing, they will play the violin for the public opinion, they cannot help themselves as Larry says. TN legislators are Red by party, fundamental Christian beliefs (ie, second chances for everyone except SO), they are elected by the population of same mind.

      @Marty “TN is making some progress…..being more progressive, in its political issues regarding sex crime law…” ??? I do not understand how you can possibly make this statement. For one example, take a look at HB0176 that plans to put a curfew on a registered SO not under DOC supervision or probation or parole. Unlawful confinement?

      @DR.Poop any win is something “…unconstitutional violation … of the Ex Post Facto clause”.

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