MEMORANDUM AND ORDER
RICHARD G. KOPF, District Judge.
At issue in these consolidated cases is the constitutionality of amendments to Nebraska's Sex Offender Registration Act that became operative January 1, 2010.
Case No. 8:09CV456 was filed in this court on December 16, 2009, by twenty convicted sex offenders (John and Jane Does 1-20) and thirteen of their spouses, children, parents, and employers (John and Jane Does A-K). In an amended complaint filed on March 15, 2010, sixteen additional convicted sex offenders (John Does 21-36) were added as Plaintiffs. All Plaintiffs allegedly reside in Nebraska. Named as Defendants are the State of Nebraska, the Nebraska Attorney General, the Nebraska State Patrol and its Superintendent, county attorneys and sheriffs for each of Nebraska's ninety-three counties, and police chiefs for the cities of Lincoln, Omaha, Papillion, Fremont, Bennington, Ralston, Columbus, and York, Nebraska. Individual Defendants are only sued in their official capacity.
Plaintiffs in Case No. 8:09CV456 allege that Nebraska's Sex Offender Registration Act (SORA), as amended, violates several provisions of the United States Constitution, including: (1) the Ex Post Facto Clause of Article I, § 10; (2) the Fifth Amendment's Double Jeopardy Clause; (3) the Eighth Amendment's prohibition against cruel and unusual punishment; (4) the Fourth Amendment's prohibition against unreasonable searches and seizures; (5) the Fourteenth Amendment's Due Process Clause; (6) the Fourteenth Amendment's Equal Protection Clause; (7) the First Amendment's guarantee of free speech; and (8) the Contracts Clause of Article I, § 10. Plaintiffs also allege violations of eight corresponding provisions of the Nebraska Constitution, plus violations of Article III, § 18, which prohibits special legislation, and Article II, § 1, which mandates the separation of powers.
Case No. 4:09CV3266 was filed in the District Court of Douglas County, Nebraska, on December 24, 2009, by a convicted sex offender (John Doe) who allegedly is
Plaintiff's complaint in Case No. 4:09CV3266 is substantially similar to the amended complaint filed in Case No. 8:09CV456, except that it does not include claims that the amended Act violates the Equal Protection Clause, constitutes special legislation, or violates the Contracts Clause.
Case No. 4:10CV3004 was filed in the District Court of Lincoln County, Nebraska, on January 4, 2010, by an individual (John Doe) who allegedly is required by the amended Act to register as a sex offender in Lincoln County. On January 7, 2010, the action was removed to federal court by Defendants, who include the State of Nebraska, the Nebraska Attorney General, the Nebraska State Patrol and its Superintendent, the Lincoln County Attorney, the Lincoln County Sheriff, and the Chief of Police for the City of North Platte, Nebraska.
Plaintiff in Case No. 4:10CV3004 does not claim any violations of the United States Constitution, but he alleges the amended Act violates the same eight provisions of the Nebraska Constitution that are involved in Case No. 4:09CV3266, namely: (1) Article I, § 16 (ex post facto law); (2) Article I, § 12 (double jeopardy); (3) Article I, § 9 (cruel and unusual punishment); (4) Article I, § 7 (unreasonable search and seizure); (5) Article I, § 3 (due process); (6) Article I, § 5 (free speech); (7) Article II, § 1 (separation of powers); and (8) Article I, § 16 (contracts clause).
Case No. 4:10CV3005 was filed in the District Court of Sarpy County, Nebraska, on December 31, 2009, by a convicted sex offender who allegedly resides in Sarpy County. Defendants removed the action to federal court on January 8, 2010. Defendants include the State of Nebraska, the Nebraska Attorney General, the Nebraska State Patrol and its Superintendent, the Sarpy County Attorney, and the Sarpy County Sheriff.
As in the preceding case, Plaintiff in Case No. 4:10CV3005 only alleges violations of the Nebraska Constitution. His complaint contains seven causes of action which are identical to the first seven claims alleged in Case No. 4:10CV3004.
These four cases were consolidated for all purposes, including trial and discovery, on January 21, 2010.
Plaintiffs in Case Nos. 8:09CV456, 4:09CV3266, and 4:10CV3005 are represented by the same counsel, and have filed a joint response to Defendants' motion for summary judgment.
The Challenged Legislation
Plaintiffs seek to prohibit enforcement of parts of Legislative Bills 97 (LB 97) and 285 (LB 285), which were passed by the Nebraska Legislature and approved by the Governor in May 2009. LB 97 was enacted first.
Among other things, LB 97 amended Sections 29-4001, 29-4003, 29-4006, 29-4007, and 29-4008 of Nebraska's Sex Offender Registration Act (SORA). See Nebraska Laws 2009, LB 97 §§ 23, 25, 26, 27, 28. LB 97 also created two new statutes, which are codified as Neb.Rev.Stat. §§ 28-322.05 and 29-4001.01. See Nebraska Laws, LB 97, §§ 14, 24. Section 28-322.05 is a new criminal statute (unlawful use of the Internet by a prohibited sex offender), while Section 29-4001.01 is a new definitional statute for SORA.
LB 285 made further amendments to SORA Sections 29-4003 (applicability of the Act), 29-4006 (registration format), and 29-4007 (notification), and also amended SORA Sections 29-4004 (registration procedure), 29-4005 (registration duration), 25-4009 (information not confidential), 29-4011 (violation penalties), and 29-4013 (rules and regulations). See Nebraska Laws 2009, LB 285, §§ 4 through 11. In addition, LB 285 amended Sections 14 and 24 of LB 97. See Nebraska Laws 2009, LB 285, §§ 1, 3. Finally, LB 285 outright repealed SORA Section 29-4010 (expungement procedure). See Nebraska Laws 2009, LB 285, § 17.
Appended to Defendants' brief is a table ("Appendix II, Sex Ofeender [sic] Registration Law Comparison") that summarizes the amendments made to SORA by LB 97 and LB 285. (Filing 339-2) For ease of reference, I have attached the table to this opinion as Attachment B.
SORNA, which was enacted on July 27, 2006, requires every jurisdiction to maintain a sex offender registry conforming to federal requirements or else lose federal funding. See 42 U.S.C. §§ 16912, 16925. As also required by SORNA, 42 U.S.C. § 16912(b), the Attorney General of the United States has published guidance to interpret and implement the law. See The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. § 38030-01 (July 2, 2008). The National Guidelines make it clear that SORNA sets a floor and not a ceiling for the states. That is, while the states must enact the minimum federal requirements, "SORNA does not bar jurisdictions from adopting additional regulation of sex offenders for the protection of the public, beyond the specific measures that SORNA requires." National Guidelines, at 38034.
The Attorney General has also made it clear that SORNA applies to sex offenders whose convictions occurred prior to the adoption of SORNA, stating:
National Guidelines, at 38046.
In considering a motion for summary judgment the court does not weigh the evidence, make credibility determinations, or attempt to discern the truth of any factual issue. Great Plains Real Estate Development, L.L.C. v. Union Central Life Ins. Co., 536 F.3d 939, 943-44 (8th Cir. 2008). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled
The discussion which follows is in two parts: In Part One, I will identify and discuss genuine disputes that exist regarding three sections of Nebraska's law that diverge from SORNA's minimum requirements, and will also grant in part Plaintiffs' motion for summary judgment regarding one of those sections.
As a preliminary matter, however, I must address Defendants' contention that Plaintiffs' claims as against the State of Nebraska and the Nebraska State Patrol are barred by the Eleventh Amendment to the United States Constitution, which grants states and their agencies immunity from suit in federal court.
PART ONE-THREE SECTIONS OF NEBRASKA'S NEW LAW ARE EITHER UNCONSTITUTIONAL OR A TRIAL IS REQUIRED TO DETERMINE THEIR CONSTITUTIONALITY
Three sections of Nebraska's new law are either unconstitutional or a trial is required to determine their constitutionality. Those sections are:
The constitutional provisions that are violated or may be violated are primarily the Ex Post Facto Clause (retroactive punishment), the First Amendment (freedom of speech), the Fourth Amendment (unreasonable search) and the Due Process Clause of the Fourteenth Amendment (vagueness of a criminal statute).
First and Second Causes of Action—Ex Post Facto Claim—Regarding Neb. Rev.Stat. § 29-4006(1)(k) & (s) (West, Operative Jan. 1, 2010), Neb. Rev.Stat. § 29-4006(2) (West, Operative Jan. 1, 2010), and Neb.Rev.Stat. § 28-322.05 (West, Operative Jan. 1, 2010)
The Constitution, art. I, § 10, cl. 1, provides, among other things, that: "No State shall . . . pass any . . . ex post facto Law . . . ." These laws are challenged on the basis of the Ex Post Facto Clause of the Constitution and the Nebraska equivalent. (E.g., Id. at CM/ECF pp. 15, 20, 51.) Plaintiffs bring a facial and an as-applied challenge. (Filing 329 at CM/ECF p. 60.)
Either in kind or degree, these three statutes are foreign to the federal Sex Offender Registration and Notification Act (SORNA).
In upholding SORNA against an Ex Post Facto challenge, the United States Court of Appeals for the Eighth Circuit has outlined the proper analysis. United States v. May, 535 F.3d 912 (8th Cir. 2008)(the application of the registration requirements of SORNA to a defendant who was registered as a sex offender pursuant to state law before SORNA's enactment, and who traveled to another state after SORNA's enactment, did not violate the Ex Post Facto Clause; the statute did not punish an individual for previously being convicted of a sex crime, but rather for not registering as a sex offender, or failing to update his registration after traveling in interstate commerce).
The analytic outlined by the Eighth Circuit is as follows:
Id. at 919-920 (citations omitted).
As to the first level of analysis suggested by the Court of Appeals, there is evidence that the Nebraska legislator
As to the second level of analysis suggested by the Court of Appeals, these three provisions, apparently unique to the American legal system, are obviously onerous. I also conclude that a trial is necessary to determine whether these statutes (separately or collectively) are so punitive either in purpose or effect as to negate any legislative intention to deem them civil.
In short, the factual record produced by Plaintiffs and Defendants in support of their motions is both lacking in detail and in dispute as to material matters. Therefore, Plaintiffs' Ex Post Facto claims regarding these three statutes require a trial. An example will illustrate the point.
Factually, both sides have failed to produce a record that would allow me to determine how Neb.Rev.Stat. § 28-322.05 (making it a crime for certain offenders to use social networking sites and instant messaging or chat room services that allow a person under 18 to access or use such site or service) would actually impact particular Plaintiffs or offenders more generally. Whether the challenge is "as-applied" or "facial," I must understand, as a factual matter, how the statute works. The parties have failed to give me an undisputed record upon which to judge that question. Moreover, my independent research suggests that § 28-322.05 may have far reaching (and, perhaps, unintended) consequences. I have attached to this opinion Attachment A.
Seventh and Eighth Causes of Action— Fourth Amendment—Regarding Neb.Rev.Stat. § 29-4006(2) (West, Operative Jan. 1, 2010)
Plaintiffs attack Neb.Rev.Stat. § 29-4006(2) and the "consent to search" and "consent to monitoring" requirements. Plaintiffs claim that these provisions violate the Fourth Amendment and Nebraska's equivalent constitutional provision.
A person who is required to register must supply that "person's remote communication device identifiers and addresses, including, but not limited to, all global unique identifiers, serial numbers, Internet protocol addresses, telephone numbers, and account numbers specific to the device[.]" Neb.Rev.Stat. § 29-4006(1)(k). A registrant must also supply:
Neb.Rev.Stat. § 29-4006(1)(s).
Providing the foregoing information then triggers a broad "consent to search" and "consent to monitoring" requirement. That is:
Neb.Rev.Stat. § 29-4006(2).
A refusal to provide "consent" is a Class IV felony and a refusal is punishable by a prison sentence. Neb.Rev.Stat. § 29-4011(1)("Any person required to register under the Sex Offender Registration Act who violates the act is guilty of a Class IV felony.") Such a felony is punishable by imprisonment of up to five years and a fine of up to $10,000. Neb.Rev.Stat. § 28-105(1) (West, 2009).
A. Persons Not Presently Under Probation, Parole or Court-Monitored Supervision
Defendants concede that the "consent to search" provisions are unconstitutional regarding offenders who are no longer under supervision.
Defendants' concession is well-founded because this portion of Nebraska's law clearly violates the Fourth Amendment rights of persons who are not presently on probation, parole or court-monitored supervision. See Doe v. Marion County, 566 F.Supp.2d 862, 883 (S.D.Ind.
Defendants apparently do not concede that § 29-4006(2)(b) (providing that the execution of the consent also authorizes installation of hardware or software to monitor the person's Internet usage on all the computers or electronic communication devices possessed by that person) is unconstitutional as to persons who are no longer on probation, parole or court-monitored supervision. During the preliminary injunction hearing, the following exchange took place between the undersigned and counsel for Defendants:
Neb.Rev.Stat. § 29-4006(2)(b) is plainly unconstitutional under the Fourth Amendment as it pertains to persons who are no longer on probation, parole or court-monitored supervision. Without a "consent to search," Nebraska would have no ability to enter homes or business or other places where Plaintiffs have a reasonable expectation of privacy or to "[i]nstall... hardware or software to monitor the person's Internet usage on all the computers or electronic communication devices possessed by the person." In short, a cop would have to search for computers and then (at least to some degree) search in computers
Thus, the identical Fourth Amendment analysis that drove Judge Hamilton's decision in Doe, id. at 874, 878-88, applies equally to the "monitoring" provision of Nebraska's statute. When that analysis is applied, this provision of Nebraska law fails to meet the requirements of the Fourth Amendment because (1) it allows entry by law enforcement officers into places where there is a reasonable expectation of privacy by means of a coerced consent (2) followed by the installation of monitoring equipment on property for which there is a reasonable expectation of privacy by means of a coerced consent (3) without a warrant issued by a neutral judge (4) and without a showing of probable cause. Id. at 874. ("[t]he Fourth Amendment protects the privacy of Americans by placing a neutral judicial officer between the police and the privacy of the home and papers (and now computers), by requiring a warrant based on probable cause, and by requiring that the warrant be specific.... To suggest that removing a neutral judicial officer as a barrier does not significantly impair a citizen's privacy in his home is to imply that the warrant requirement is no big deal, and that it imposes no meaningful restraints upon law enforcement. The `most basic constitutional rule in this area is that `searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well delineated exceptions.' The exceptions are `jealously and carefully drawn,' and there must be `a showing by those who seek exemption ... that the exigencies of the situation made that course imperative.'") (citations omitted).
Several observations are in order. Initially, cases dealing with installing equipment to monitor persons during periods of court or parole supervision are not persuasive. Those cases are inapposite because they either (1) involve a judicial determination based on an individualized assessment of need or (2) deal with persons who have a lessened expectation of privacy because they have not yet been released from criminal justice supervision. Id. at 882, n. 7.
Furthermore, Defendants have cited no case where a "sex offender" who has completed his or her punishment and supervision for a sex crime was held to have a weaker claim to Fourth Amendment protection than ordinary citizens. Without precedent (or at least an analogous and well-reasoned case), I am unwilling to vitiate the Fourth Amendment for individuals who have paid their debt to society. Id. at 883 ("[a] person's status as a felon who is no longer under any form of punitive supervision therefore does not permit the government to search his home and belongings without a warrant.").
Finally, to the extent that Nebraska contends this portion of the statute can be saved by a limiting judicial construction, I reject such an approach as wholly inappropriate. The statute is unambiguous. That is, a person who has served his or her probationary or parole term and prison or jail time for a sex offense must "consent" to the installation of monitoring equipment on computers he or she possesses. Such a consent then authorizes a search incident thereto to find the computers in places where the person who gave the consent has a reasonable expectation of privacy
As Chief Justice Roberts has recently reiterated regarding an unambiguous statute, the federal courts "`may impose a limiting construction on a statute only if it is `readily susceptible' to such a construction'" and the federal courts "`will not rewrite a ... law to conform it to constitutional requirements'...." United States v. Stevens, ___ U.S. ___, 130 S.Ct. 1577, 1591, 176 L.Ed.2d 435 (2010) (federal statute criminalizing the commercial creation, sale, or possession of depictions of animal cruelty was substantially overbroad, and thus, the statute was facially invalid under the First Amendment protection of speech) (citation omitted) (emphasis added). Nebraska follows that familiar rule as well. See, e.g., State v. Woods, 255 Neb. 755, 587 N.W.2d 122, 128 (1998) (holding that notice-of-alibi statute would not be construed to allow a court to order the disclosure of the identity of the defendant's alibi witness prior to trial; stating that a statute is open for construction only when the language used requires interpretation or may reasonably be considered ambiguous).
Here, the challenged provision needs no construction. The words are (chillingly) plain.
The consent to search and the consent to monitoring provisions of Neb.Rev.Stat. § 29-4006(2) violate the Fourth Amendment both facially
With the previous discussion in mind, the parties are directed to provide me with a stipulation designating those Plaintiffs who fit within this category—"sex offenders" who were not on probation, parole or court-monitored supervision as of January 1, 2010—together with the date when the offender was no longer under criminal justice supervision. That stipulation shall be provided within thirty days after the issuance of this Memorandum and Order. If, for some reason, the parties cannot reach agreement, they shall arrange a telephone conference with me by contacting my judicial assistant.
Given the foregoing determination, it is unnecessary to decide whether the challenged statute violates the constitutional rights of persons associated with this group of Plaintiffs (like spouses, mothers or employers). Stated more simply, if those Plaintiffs previously convicted of a "sex offense" but who have served their time are not obligated to give a consent to search and consent to the installation of computer monitors, then those persons associated with such Plaintiffs have nothing to fear.
B. Persons Presently on Probation, Parole or Court-Monitored Supervision
Plaintiffs also argue that the statutory consent to "search" and consent to "monitoring" requirements violate the protections
The amended complaint asserts both "facial" and "as-applied" challenges. (Id. at CM/ECF pp. 59-60.) In addition, the amended complaint sets out specific allegations by each Plaintiff regarding the harm he or she may suffer as a result of the new law. Some Plaintiffs complain of harm associated with this consent to search provision. (Id. at CM/ECF pp. 24-49.) In particular, and for example, the amended complaint describes a Plaintiff who is "still on probation,"
After careful consideration, Plaintiffs' motion for summary judgment, as well as Defendants' motion for summary judgment, are denied regarding the statutory consent to "search," and consent to "monitoring" requirements pertaining to persons who have been convicted of sex crimes and who are presently on probation, parole or court-monitored supervision and also respecting persons associated with such registrants. As briefly explained in the following discussion, a trial is necessary to resolve the constitutionality of this section of Nebraska's new law as applied to this category of offenders and those associated with them.
The Supreme Court has declared that "[a] probationer's home, like anyone else's, is protected by the Fourth Amendment's requirement that searches be `reasonable.'" Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). But, like most things, context is critical when evaluating principles enunciated by the Supreme Court. In Griffin, the Court upheld a Wisconsin law permitting any probation officer to search a probationer's home without a warrant so long as there were "reasonable grounds" to support a search. Id. The Court explained that "the special needs of Wisconsin's probation system make the warrant requirement impracticable and justify replacement of the standard of probable cause by `reasonable grounds.'" Id. at 876, 107 S.Ct. 3164.
Subsequently, in United States v. Knights, 534 U.S. 112, 121, 122 S.Ct. 587, 151 L.Ed.2d 497(2001), the Court elected not to apply the "special needs" doctrine in upholding a warrantless search of a probationer that was supported by "reasonable suspicion." Rather, the Court held that the search was reasonable "under [the] general Fourth Amendment approach of `examining the totality of the circumstances.'" Id. at 118, 122 S.Ct. 587 (quoting Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996)). In explaining its decision, the Court noted that the probationer had signed a probation order agreeing to submit to a search of his person and property by a law enforcement
In Samson v. California, 547 U.S. 843, 852, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), the Court applied a "totality of the circumstances" analysis in upholding a suspicionless search of a parolee conducted pursuant to a California law providing that, as a condition for release from prison, every prisoner eligible for state parole agreed to be subject to a search or seizure by a parole officer with or without a search warrant and with or without cause. After reiterating Knights' holding that "probationers `do not enjoy the absolute liberty to which every citizen is entitled,'" id. at 849, 126 S.Ct. 2193 (quoting Knights, 534 U.S. at 119, 122 S.Ct. 587), the Court explained that "[e]xamining the totality of the circumstances pertaining to petitioner's status as a parolee, ... including the plain terms of the parole search condition, ... petitioner did not have an expectation of privacy that society would recognize as legitimate." Id. at 852, 126 S.Ct. 2193 (citations omitted). Just as in Knights, the Court explicitly refused to consider whether acceptance of the parole condition by an inmate in order to gain his release from prison was a voluntary consent under Schneckloth. Id. at 852, n. 3, 126 S.Ct. 2193.
While the foregoing cases dealt with persons on probation or parole, it is worth remembering that some of the Plaintiffs are not sex offenders but they may be impacted by the requirement that an offender with whom they are associated is required to give consent. In that regard, the Supreme Court has made plain that a warrantless search of marital residence, on the basis of consent given to police by a defendant's wife, was an unreasonable and invalid search as to the defendant, who was physically present and expressly refused to consent. Georgia v. Randolph, 547 U.S. 103, 123, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). It is clear, therefore, in some circumstances, Fourth Amendment protections exist even though one party has given a consent that might otherwise constitute a waiver of Fourth Amendment rights regarding the property subject to the waiver. Moreover, the Randolph case illustrates how the consent of one party may be used by law enforcement as a justification to impair the Fourth Amendment rights of another party.
After considering the foregoing cases (and others), and having not received any comparable case law from the parties, I will undertake an examination of the statute within a discrete factual context presented by a trial in order assess the relative interests of sex offenders who are now on probation, parole or court-monitored supervision, persons associated with those offenders, and the State of Nebraska. With respect to the necessity of a trial, one must appreciate that Plaintiffs bring both a facial and an as-applied challenge and, additionally, that the parties have not agreed on a general statement of undisputed facts or a particularized statement of undisputed facts regarding the specific claims of each of the Plaintiffs. While it might be possible to resolve the facial challenge
There are several important caveats that apply to a trial respecting the category of persons presently on probation, parole or court-monitored supervision. Initially, the record may suggest that none of the Plaintiffs will be on probation, parole or court-monitored supervision at the time of trial because they will have served their time.
The parties have also given too little thought to another potential class of persons. The parties do not adequately address the class of persons who have not yet committed a sex offense, but who may commit such an offense in the future and thus become subject to this law. Do Plaintiffs purport to represent such a group? If they do, one must ask whether Plaintiffs have standing to assert a claim for that group. Because of these concerns, the lawyers are directed to confer. After that, they should address these matters (preferably by stipulation) as the case moves forward.
C. Fourth Amendment-Recapitulation
I have decided that on Fourth Amendment grounds and the equivalent provision of the Nebraska Constitution, Neb.Rev. Stat. § 29-4006(2) is unconstitutional as it regards Plaintiffs who were previously convicted of sex crimes but who were not on probation, parole or court-monitored supervision on or after January 1, 2010. In this regard, Plaintiffs' motion for summary
Ninth and Tenth Causes of Action—Due Process—Regarding Neb.Rev.Stat. § 28-322.05 (West, Operative Jan. 1, 2010)
Plaintiffs attack Neb.Rev.Stat. § 28-322.05, which makes it a crime for certain offenders to use portions of the Internet. Plaintiffs claim that this statute violates the Due Process Clause of the Fourteenth Amendment and Nebraska's equivalent constitutional provision. (Filing 329 at CM/ECF pp. 20-21, 54-55, n. 12.) They bring a facial and an as-applied challenge. (Id. at CM/ECF p. 59.)
In its entirety, Neb.Rev.Stat. § 28-322.05 states:
In particular, Plaintiffs claim that this criminal statute is "void for vagueness." As I next briefly explain, I shall deny Plaintiffs' motion for summary judgment, and Defendants' motion for summary judgment, because the record is inadequate to resolve this claim without a trial.
First, there is good reason to believe that some of the Plaintiffs who are convicted offenders would be subject to this criminal statute as they have qualifying convictions and regularly use computers for work and otherwise. (E.g., filing 6-1 at CM/ECF pp. 23-25; filing 346-11 at CM/ECF pp. 7-8.)
Second, the vagueness doctrine is not an outgrowth of the First Amendment (although it is applied in cases where there are First Amendment issues), but
Third, a trial is necessary on this claim because both parties have failed to present an undisputed record of material facts showing how this statute actually works. In particular, but not by way of limitation, I do not have a factual record that is undisputed showing how an offender would know whether using a particular site or service is banned because that site or service "allows a person who is less than eighteen years of age to access or use" the site or service.
My independent research (Attachment A) shows that certain sites prohibit, as a matter of policy, use by persons whose ages are 18 or under, but, as a matter of practice, allow access to the sites simply by typing in any qualifying birthday. (E.g., Attachment A at p. 20 (example 2), regarding "travel hospitality."
Given the myriad of Internet options, the parties would be well-advised to present a fair sample of the relevant universe at trial. In this regard, I encourage the parties to think about the use of a joint expert to present objective testimony on this claim and the other "Internet" claims that will be resolved at trial. A person who is both legally and technically trained would be ideal. Someone like Professor Eugene Volokh, who holds a degree in mathematics and computer science, who worked for 12 years as a computer programmer, and who is a highly regarded legal academic might be such a person. See Eugene Volokh Biography, available at www.law.ucla.edu. And, to be frank, rather than dueling experts, I would appreciate hearing from someone who has no particular allegiance to the positions of either side. Thus, I strongly suggest that the parties consider jointly hiring an expert. Again, however, it is the lawyers' responsibility to present the evidence, and I will respect their decisions.
Fourteenth and Fifteenth Causes of Action —First Amendment—Regarding Neb.Rev.Stat. § 29-4006(1)(k) & (s) (West, Operative Jan. 1, 2010) and Neb.Rev.Stat. § 28-322.05 (West Operative Jan. 1, 2010)
Plaintiffs attack section 29-4006(1)(k) & (s) and section 28-322.05 because the requirement that registrants must disclose information about Internet use violates their right to freedom of speech guaranteed by the First Amendment (and the Nebraska equivalent) and because the partial ban on Internet use by certain offenders, upon pain of criminal conviction, violates those speech rights as well. (E.g., filing 329 at CM/ECF pp. 17, 56-57.) Plaintiffs bring both a facial and an as-applied challenge. (Id. at CM/ECF p. 60.)
A person who is required to register must supply their "remote communication device identifiers and addresses, including, but not limited to, all global unique identifiers, serial numbers, Internet protocol addresses, telephone numbers, and account numbers specific to the device[.]" Neb. Rev.Stat. § 29-4006(1)(k). A registrant must also supply:
Neb.Rev.Stat. § 29-4006(1)(s) (emphasis added).
In pertinent part, Neb.Rev.Stat. § 28-322.05 significantly restricts Internet use by some offenders and states the following:
I find and conclude that a trial is required regarding the First Amendment challenges to these two statutes. Accordingly, I will deny the motions for summary judgement submitted by both parties. I do so for essentially the same reasons that I have previously decided a trial is necessary. The parties have not given me an undisputed record of material facts that explains how these two statutes would actually work in practice and without such a record I cannot determine the implications of this statute on Plaintiffs' First Amendment rights. Once again, I refer the parties to Attachment A as an example of the void in this record. Briefly, I next explain in somewhat more detail why a trial is required.
People who are convicted of crimes, even felony crimes related to children, do not forfeit their First Amendment right to speak by accessing the Internet. See, e.g., United States v. Crume, 422 F.3d 728, 733 (8th Cir.2005) (condition of supervised release, imposed upon a man who had been convicted of receiving and possessing child pornography, which completely barred defendant's access to computers and the Internet was a greater deprivation of defendant's First Amendment rights than was reasonable). Indeed, the Eighth Circuit Court of Appeals has described Internet access as "an important medium of communication, commerce and information-gathering" and has required that restrictions imposed for criminal justice supervision purposes be "narrowly-tailored." Id. The requirement that restrictions upon the speech of a sex offender must be narrowly tailored
A content-neutral regulation of speech is permitted if the regulation is narrowly tailored to serve a significant governmental interest, and if it leaves open ample alternative channels for communication of information. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). It is immaterial that the government's interest might be adequately served by some less-speech-restrictive alternative. Id. at 798, 109 S.Ct. 2746. However, this standard "does not mean that a ... regulation may burden more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden does not serve to advance its goals." Id. at 799, 109 S.Ct. 2746.
Several examples will show why a trial is necessary.
Example 1: Considering Neb.Rev.Stat. § 29-4006(1)(s), one wonders whether a sex offender's posting to a blog site maintained by a law professor for the purpose of discussing sentencing issues,
Example 2: Considering Neb.Rev.Stat. § 28-322.05, one wonders what the word "allows" means. In that same vein, one wonders whether a site that allows users to connect with individuals who speak different languages for the purposes of enhancing language learning as native speakers and to help non-native speakers improve their language skills is off limits because persons over the age of 13 can, as a matter of the site's policy, access the site.
Example 3: Doe 35 is probably covered by the offenses listed in Neb.Rev.Stat. § 28-322.05 because, at 23 years of age and after having consensual sex (once) with a 14 year old female, he was convicted of "child molestation" under Washington law.
PART TWO—ALL OTHER SECTIONS OF NEBRASKA'S NEW LAW ARE CONSTITUTIONAL
Federal courts, including the United States Court of Appeals for the Eighth Circuit, have consistently upheld SORNA as against claims that it is unconstitutional. See, e.g., United States v. May, 535 F.3d 912 (8th Cir.2008) (holding that SORNA does not violate the Ex Post Facto Clause, the Commerce Clause, or the non-delegation doctrine); United States v. Howell, 552 F.3d 709, 717 (8th Cir.2009) (finding that section of SORNA containing underlying registration requirements was valid exercise of congressional power under Necessary and Proper Clause; registration requirements were appropriate and reasonably adapted means by Congress to attain legitimate end of monitoring and regulating interstate movement of sex offenders); United States v. Waddle, 612 F.3d 1027 (8th Cir.2010) (adhering to May).
First and Second Causes of Action— Ex Post Facto Claim
"Both U.S. Const. art. I, § 10, cl. 1, and Neb. Const. art. I, § 16, provide that no ex post facto law shall be passed." Slansky v. Nebraska State Patrol, 268 Neb. 360, 685 N.W.2d 335, 350 (2004). The Nebraska Supreme Court "ordinarily construes Nebraska's ex post facto clause to provide no greater protections than those guaranteed by the federal Constitution." Id. (citing State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004), State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999)). "[U]nder the Ex Post Facto Clause, the retroactive application of civil disabilities and sanctions is permitted; only retroactive criminal punishment for past acts is prohibited." Id.
Plaintiffs claim that "[s]ome of the previously-held statuses, rights, or abilities [they have been] deprived [of] by virtue of the retroactive application of the New Act include:
(Filing 345, CM/ECF pp. 6-7, ¶ 4.)
Plaintiffs also claim that "[i]n addition to those restrictions already in place under the prior registry, some of the increased restrictions and disabilities imposed on registrants through the retroactive application of the New Act include:
(Filing 345, CM/ECF pp. 7-8, ¶ 5.)
In this regard, Plaintiffs represent that "Does 1-36 [in Case No. 8:09CV456] and the two John Does [in Case Nos. 4:09CV3266 and 4:10CV3005] were convicted of registrable offenses and sentenced before the passage or enforcement of the New Act." (Filing 345, CM/ECF p. 9, ¶ 8.) Under the old law, they were "subjected to an individualized risk assessment, and certified by the State as posing a particular risk to reoffend." (Filing 345, CM/ECF p. 9, ¶ 9.)
"Some were assigned as Tier 3, which represented a high risk to reoffend. Filing 1, p. 5-6. These individuals were subject to public notification by informing law enforcement, schools, daycares, and other groups in the area, and through the State Patrol website. Neb.Rev.Stat. § 29-4013(2)(c)(iii) (Rev. 2007)." (Filing 345, CM/ECF p. 9, ¶ 9.)
"Others were assigned as Tier 2, which represented a moderate risk to reoffend. Filing 1, p. 5-6. These individuals were subject to public notification by informing law enforcement, schools, daycares, and other groups in the area. Neb.Rev.Stat. § 29-4013(2)(c)(ii) (Rev. 2007)." (Filing 345, CM/ECF pp. 9-10, ¶ 10.)
"Still others were designated as Tier 1, which represented those who were determined by the State to pose a low risk to reoffend. Filing 1, p. 5-6. Because of the nature of their crimes and circumstances, public notification for these individuals only entailed notification to law enforcement. Neb.Rev.Stat. § 29-4013(2)(c)(i)
(Filing 345, p. 10, ¶ 11.)
Plaintiffs complain that under the new law "[d]isregarding the reality of the low-and moderate-risk individuals, all registrants are presently subject to public notification via the State Patrol website. Neb. Rev.Stat. § 29-4013(2)(b) (Rev. 2009). Such website states that sex offenders pose a high risk to reoffend. Exhibit 5, p. 1. In addition, the rules and regulations describe all registrants as `violent sex offenders' and that the registry was `passed to protect the public, in particular children.' Filing 319-7, p. 6." (Filing 345, CM/ECF p. 11, ¶ 12.)
Plaintiffs allege that "[a]fter the New Act was implemented and all registrants were portrayed as high-risk sex offenders on the Internet, registrants felt the fallout almost immediately." (Filing 345, CM/ECF p. 11, ¶ 13.) In particular, Plaintiffs contend the new registration system has resulted in:
(Filing 345, CM/ECF p. 11, ¶ 13.)
Even if I were to assume that Plaintiffs can produce sufficient admissible evidence to support their "statement of material facts" as quoted above,
In State v. Worm, the Nebraska Supreme Court considered whether retroactive application of 2002 amendments to SORA violated the Ex Post Facto Clause. As described by the Court, the changes made to the law were as follows:
680 N.W.2d at 157-158.
At sentencing, the defendant in Worm was determined to have committed an aggravated
Regarding the legislative intent prong, the Nebraska Supreme Court stated:
Id. (citations omitted).
Plaintiffs complain that the 2009 amendments to SORA did away with the administrative hearing and appeal process; they argue that "[t]he elimination of due process protection indicates a criminal, punitive statute." (Filing 345, at CM/ECF p. 116.) What LB 285 actually did, of course, was to replace a system that required individualized risk assessments of sex offenders with an "offense of conviction" methodology. It is only because the Nebraska State Patrol is no longer required to judge each sex offender's risk of recidivism under Neb.Rev.Stat. § 29-4013 that the administrative hearing and appeal procedures no longer apply. The replacement method, which conforms to SORNA, see National Guidelines, at 38031 ("[J]urisdictions are not required by SORNA to look beyond the elements of the offense of conviction in determining registration requirements except with respect to victim age."), does not evidence a legislative intent to adopt a criminal statute.
Plaintiffs also point to a statement made by the Nebraska Supreme Court in Worm that "prompt notification of the Act's requirements and its criminal penalty for noncompliance is essential in some cases," 680 N.W.2d at 161, and then proceed to argue that "retroactively changing the requirements to be significantly more onerous without notice, or without prior notice that such a change was even possible, infers [sic] a punitive intent." (Filing 345, at CM/ECF pp. 116-117.) The Court in Worm was simply explaining that SORA required the sentencing court to provide notice when entering judgment because the Act's registration requirement would begin immediately if the offender was not incarcerated pending an appeal or sentenced to probation. The Court concluded that the sentencing requirement was not criminal in nature. Plaintiffs' argument that lack of notice implies a punitive intent is misplaced.
Plaintiffs next contend that in State v. Payan, 277 Neb. 663, 765 N.W.2d 192 (2009), the Nebraska Supreme Court established a "high water mark for the permissible level of monitoring and restrictions that [a] statutory scheme may impose
The legal issue presented in Payan was whether a factual finding that the defendant committed an aggravated offense, as defined by SORA, should have been made by the jury, rather than the trial judge, for purposes of lifetime community supervision requirement under Neb.Rev.Stat. § 83-174.03 (not part of SORA). Applying the same "intent-effects" test used in Worm, the Court decided that § 83-174.03 imposed a criminal penalty:
765 N.W.2d at 202 (footnotes omitted).
Unlike a requirement of lifetime community supervision, SORA's registration requirements are not analogous to a term of parole.
Id. (quoting State v. Isham, 261 Neb. 690, 625 N.W.2d 511, 515-516 (2001), quoting Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963)). Plaintiffs make two basic arguments regarding these factors.
First, Plaintiffs argue that the legislation places affirmative disabilities and restraints on registrants because "[t]he New Act's constant in-person reporting has a punitive effect." (Filing 345, CM/ECF p. 121.) In particular, Plaintiffs complain that: (1) As amended by LB 285, SORA compels all registrants to report in-person annually, semiannually, or quarterly, depending on the registration duration. See Neb.Rev.Stat. § 29-4006(4)-(6) (West, Operative Jan. 1, 2010).(2) In-person reporting is also required every time a registrant has a new address, habitual living location, temporary domicile, job, or enrolls in a school. See Neb.Rev.Stat. § 29-4004 (West, Operative Jan. 1, 2010).(3) A registrant must give notice, in writing, by the next working day of "any changes in or additions to such person's list of email addresses, instant messaging identifiers, chat room identifiers, global unique identifiers, and other Internet communication identifiers that the registrant uses or plans to use, all domain names registered by the person, and all blogs and Internet web sites maintained by the person or to which the person has uploaded any content or posted any messages or information." Neb.Rev.Stat. § 29-4006(13) (West, Operative Jan. 1, 2010). In Worm, Plaintiffs note, the Nebraska Supreme Court found that the Act's former registration requirements imposed only a "slight" burden. 680 N.W.2d at 162.
Second, Plaintiffs emphasize that "[a]ll registrants are subjected to public notification via the Internet." (Filing 345, CM/ECF p. 123.) They point out that in Welvaert v. Nebraska State Patrol, 268 Neb. 400, 683 N.W.2d 357, 366 (2004), the Nebraska Supreme Court found that the Act's former provisions did not impose an affirmative restraint because "[t]he extent to which an offender is subject to public notification under SORA has been tailored to mirror the level of risk an offender presents to their community." The law previously provided that:
Id. Under the current law, by contrast, certain information regarding all registrants is disclosed to the public.
While the current law's reporting requirements are more stringent, and the public notification provisions are more expansive, than in the versions of SORA that were upheld against ex post facto challenges in Worm and Welvaert, I am not convinced that the purpose or effect of the amendments that were made in order to bring Nebraska's law into compliance with SORNA are punitive. As I stated in ruling on Plaintiffs' motion for a preliminary injunction:
(Filing 92, at CM/ECF pp. 9-10.)
In Smith v. Doe, the United States Supreme Court rejected arguments that Alaska's Sex Offender Registration Act violated the Ex Post Facto Clause because it applied to all convicted sex offenders, without regard to their future dangerousness, and placed no limits on public access to non-confidential information. The Court found that the law had a "rational connection" to a "legitimate nonpunitive purpose of `public safety, which is advanced by alerting the public to the risk of sex offenders in their communit[y].'" 538 U.S. at 103, 123 S.Ct. 1140 (quoting lower court's opinion). It then stated:
538 U.S. at 103-105, 123 S.Ct. 1140. The same can be said of Nebraska's law.
Because Plaintiffs cannot show by the "clearest proof" that the effects of Nebraska's SORNA-conforming amendments negate the legislative intent to maintain a civil regulatory scheme, Defendants are entitled to the entry of partial summary judgment on Plaintiffs' ex post facto claim. For the reasons discussed in Part One of this opinion, however, Defendants' motion will be denied insofar as the claim concerns Neb.Rev.Stat. §§ 28-322.05, 29-4006(1)(k) &(s), and 29-4006(2).
Third and Fourth Causes of Action— Double Jeopardy Claim
No person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Constitution, Amend. V. "No person shall . . . be twice put in jeopardy for the same offense." Neb. Const., Art. 1, § 12.
"The protection provided by Nebraska's double jeopardy clause is coextensive with that provided by the U.S. Constitution." State v. Dragoo, 277 Neb. 858, 765 N.W.2d 666, 670 (2009). "The Double Jeopardy Clauses of both the federal and the Nebraska Constitutions protect against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense." Id.
Plaintiffs complain the SORA amendments impose a second punishment on convicted sex offenders. This claim fails because the Double Jeopardy Clause "protects only against the imposition of multiple criminal punishments for the same offense." Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (emphasis in original). As already discussed in connection with Plaintiffs' ex post facto claim (in Part Two of this opinion), Nebraska's new registration requirements do not amount to criminal penalties.
Fifth and Sixth Causes of Action— Cruel and Unusual Punishment Claim
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Constitution, Amend. VIII.; Neb. Const. Art. 1, § 9. "[W]ith reference to cruel and unusual punishment, the Nebraska Constitution does not require more than does the [Eighth Amendment to the] U.S. Constitution." State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668, 675 (2003) (quoting State v. Moore, 256 Neb. 553, 591 N.W.2d 86, 95 (1999)).
Plaintiffs contend that "[f]or those offenders who have served their periods of incarceration and were determined by the State to be lower-risk to reoffend, the extension of the registration period is unusual given the goal of preventing recidivism. Mandatory public notification via the State Patrol website is a cruel punishment not remotely proportional to the risk posed." (Filing 345, at CM/ECF p. 138.) Again, this argument fails because SORA's registration and notification requirements do not constitute punishment.
Ninth and Tenth Causes of Action— Due Process Claim
No State shall "deprive any person of life, liberty, or property, without due process of law[.]" U.S. Constitution, Amend. XIV, § 1. "No person shall be deprived of life, liberty, or property, without due process of law." Neb. Const. Art. I, § 3.
The Nebraska Supreme Court has indicated that the federal and state constitutions contain similar due process language, and has applied the same analysis to such claims. See Scofield v. State, Dept. of Natural Resources, 276 Neb. 215, 753 N.W.2d 345, 356 (2008). More particularly, "[i]n the context of a right to privacy, [the Nebraska Supreme Court has] effectively stated that the due process provision of the Nebraska Constitution is congruent with the federal Constitution and that the Nebraska Constitution does not contain any rights broader than the federal Constitution." Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512, 524 (2006) (citing State v. Senters, 270 Neb. 19, 699 N.W.2d 810 (2005)).
Plaintiffs advance four due process arguments: "First, the New Act is unconstitutionally vague. Second, the New Act violates substantive due process. Third, the New Act violates procedural due process by eliminating both fundamental and state law-generated rights without a hearing. Finally, the retroactive application of the New Act is irrational and arbitrary." (Filing 345, at CM/ECF p. 139.)
Plaintiffs claim that "[t]he New Act detailing the registration requirements and the Unlawful use of the Internet crime are both unconstitutionally vague under the due process clause." (Filing 345, at CM/ ECF p. 139.) I address here only the claim that the registration requirements are vague. The vagueness claim concerning Neb.Rev.Stat. § 28-322.05, and associated definitions from Section 24 of LB 97,
"An overly vague statute `violates the first essential of due process of law,' because citizens `must necessarily guess at its meaning and differ as to its application'." United States v. Bamberg, 478 F.3d 934, 937 (8th Cir.2007) (quoting
Plaintiffs first complain that SORA, as amended, "applies to any person who on or after January 1, 1997 . . . [h]as ever pled guilty to, pled nolo contendere to, or been found guilty of any of the following [listed offenses]. . . ." Neb.Rev. Stat. § 29-4003(1)(a)(i) (West, Operative Jan. 1, 2010) (emphasis supplied). According to Plaintiffs, "[t]his section appears to simultaneously both limit its application to offenses after January 1, 1997, and apply to the enumerated offenses regardless of when they were committed." (Filing 345, at CM/ECF p. 140.)
Before being amended by LB 285, the statute provided that SORA "shall apply to any person who on or after January 1, 1997 . . . [p]leads guilty to or is found guilty of [listed offenses]. . . ." Neb.Rev. Stat. § 29-4003(1)(a) (Reissue 2008). SORA's original effective date was January 1, 1997. See Neb. Laws 1996, LB 645, § 20. By retaining the date, the legislature clearly intended the 2009 amendments to apply only to persons convicted since January 1, 1997. Use of the word "ever" does not negate this legislative intent. Although inartfully drafted, the statute simply means that SORA's registration requirements apply to a person who at any time on or after January 1, 1997, whether by plea or trial, has been found guilty of a listed sex offense. The statute does not lend itself to arbitrary enforcement.
Plaintiffs next complain that "Neb.Rev.Stat. § 29-4004 imposes confusing in-person reporting requirements on all registrants when he or she has a new address, temporary domicile, or habitual living location. `Temporary domicile' is defined as any place at which the person actually lives or stays for a period of at least three working days. § 29-4001.01(15). `Habitual living location' is defined as any place that an offender may stay for a period of more than three days even though the sex offender maintains a separate permanent address or temporary domicile. § 29-4001.01(9). This notification must occur within three working days before the change. § 29-4004(2)-(4).
The term "working days" is commonly understood to mean Monday through Friday, excluding holidays.
Plaintiffs state that "[a] habitual living location includes anywhere a registrant may stay for a period of more than three days, which includes virtually anywhere on the planet. . . . No registrant would believe that he had an obligation to report all places he may stay, rendering the requirement to report all habitual living locations a nullity and adding to the confusion." (Filing 345, at CM/ECF p. 142.)
This argument is self-defeating because "[a] penal statute is given a strict construction which is sensible and prevents injustice or an absurd consequence." State v. Hochstein, 262 Neb. 311, 632 N.W.2d 273, 280 (2001). "Penal statutes are given a sensible construction in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served." Id. As Plaintiffs concede, it is evident the statute only requires a registrant to report his or her intended relocations.
Plaintiffs next complain that "Neb.Rev.Stat. § 29-4006 broadens the amount and nature of the information that a registrant must provide under the New Act to a bewildering and confusing extent. This information includes the confusing temporary domicile and habitual living location. It also includes the license plate, description and regular storage location of any vehicle owned or operated by the person. Since `vehicle' is not defined, it might include various manners of transportation, as has been the case in criminal driving under the influence cases, e.g. bicycles, riding lawnmowers, tractors, boats, etc. It is also unclear whether this would include vehicles used by a registrant for work." (Filing 345, at CM/ECF pp. 142-143.)
The term "vehicle" is not defined by the Act, but only vehicles with license plates are subject to the registration requirement.
Finally, Plaintiffs state that "Neb.Rev. Stat. § 29-4006(1) requires that the State Patrol collect certain information, `but not limited to' that enumerated data." This gives the State Patrol unfettered discretion to collect an unforeseeable amount of information. Once the State Patrol collects whatever it wants, the New Act provides that only limited information will be confidential, and the rest will not be confidential. Neb.Rev.Stat. § 29-4009(1). The New Act also provides for the release of "public notification information" to third parties. Neb.Rev.Stat. § 29-4013(4) and (5). "But no provision regulates whether such third parties may disclose such confidential information, and it places no limitation on third parties as to how they disseminate information gathered under the New Act, confidential or otherwise." (Filing 345, at CM/ECF p. 146.)
Plaintiffs do not appear to be arguing that Section 29-4006(1) is "void for vagueness," but rather that it involves an unlawful delegation of legislative authority to the Nebraska State Patrol. "It is a well-established principle that the Legislature may delegate to an administrative agency the power to make rules and regulations to implement the policy of a statute." Yant v. City of Grand Island, 279 Neb. 935, 784 N.W.2d 101, 109-110 (2010). Plaintiffs make no contention that the Nebraska State Patrol's rules and regulations require them to disclose any information that is not specifically listed in Section 29-4006(1).
Regarding Plaintiffs' privacy concerns, the Nebraska State Patrol has provided that confidential information "shall only be released upon written request to law enforcement agencies" and "shall be treated as confidential by law enforcement agencies and shall not be considered public record information." Neb. Admin. Code, Title 272, Ch. 19, §§ 013.01 & 13.06 (effective Jan. 1, 2010). "Certain groups and agencies approved by the National Sex Offender Registry shall have access to additional public notification information (not provided on the web site) about registered sex offenders," but "[s]uch information excludes confidential information as provided in section 013.06." Neb. Admin. Code, Title 272, Ch. 19, § 13.07 (effective Jan. 1, 2010).
B. Substantive Due Process
To address Plaintiffs' substantive due process claim, I must first determine whether SORA's registration and public notification requirements implicate a fundamental right. See Gunderson v. Hvass, 339 F.3d 639, 643 (8th Cir.2003). "If the statute implicates a fundamental right, the state must show a legitimate and compelling governmental interest for interfering with that right." Id. (citing Graham v. Richardson, 403 U.S. 365, 376, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971)). "If the statute does not implicate a fundamental right, . . . a less exacting standard of review [applies] under which the statute will stand as long as it is rationally related to a legitimate governmental purpose." Id. (citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985)).
Plaintiffs claim that the amended Act "infringes on the right in one's reputation and name, right to the integrity of a family, right to travel, right to earn a living, and the right to privacy." (Filing 345, at CM/ECF p. 148.) I determine that any
1. No Fundamental Right Implicated
Plaintiffs complain that "[p]ublic notification for all registrants deprives them of their liberty interest in their names, reputations and standing in their communities by failing to differentiate between high- and lower-risk persons on the sex offender registry."
Plaintiffs argue that a "stigma plus" test applies. See Gunderson, 339 F.3d at 640 ("The loss of reputation must be coupled with some other tangible element to rise to the level of a protectible property interest."). The "stigma plus" test, however, is designed for procedural due process claims. It does not apply to substantive due process claims. See Doe v. Michigan Dept. of State Police, 490 F.3d 491, 502 (6th Cir.2007) ("Our review of the caselaw has failed to identify any case that applies the stigma-plus test to a substantive due process claim."); Does v. Munoz, 507 F.3d 961, 966 n. 1 (6th Cir.2007) ("Plaintiffs obscure the correct analysis by urging us to apply the "stigma plus" test. That test applies only to procedural due process claims.") (emphasis in original). But cf. Zutz v. Nelson, 601 F.3d 842, 849 (8th Cir.2010) (holding that district court correctly dismissed substantive due process claim where plaintiffs "have not even vaguely pleaded any other harm" than injury to their reputations).
In Doe v. Moore, 410 F.3d 1337 (2005), the Eleventh Circuit Court of Appeals considered a substantive due process challenge to Florida's Sex Offender Act, brought by several persons who were required by the law to register as sex offenders and, without regard to their likelihood to reoffend, have their photographs and identifying information posted on the state's website. The Court followed a two-step process to determine whether a fundamental right was implicated:
Id., at 1343-1344 (footnote omitted). At the second step, the Court concluded that such a right was not "deeply rooted in this Nation's history and tradition," stating:
Id., at 1344. I agree with this analysis.
Plaintiffs next claim that "[l]abeling a non-dangerous registrant as high-risk to reoffend intrudes on matters of personal choice as related to marriage and family life." (Filing 345, at CM/ECF p. 158.) The Eight Circuit's decision in Doe v. Miller, 405 F.3d 700 (8th Cir.2005), upholding an Iowa statute that prohibited a person who had committed a sex offense against a minor from residing within two thousand feet of school or child care facility,
Id., at 710-711. See also Weems v. Little Rock Police Dept., 453 F.3d 1010, 1015 (8th Cir.2006) (upholding comparable residency restriction in Arkansas statute).
405 F.3d at 709-714 (footnote omitted).
I am not persuaded that SORA's in-person reporting requirements create an actual barrier to travel. See Doe v. Moore, 410 F.3d at 1348 (requirement that registrants notify law enforcement of every change in their permanent or temporary residences did not unreasonably burden right to travel).
2. Rational Relationship to Legitimate Governmental Purpose
Plaintiffs argue that "[t]he stigmatization of lower-risk offenders is not rationally
In Doe v. Michigan Dept. of State Police, the Sixth Circuit Court of Appeals rejected a substantive due process claim by pointing to similar legislative findings:
490 F.3d at 501. See also Does v. Munoz, 507 F.3d at 966 (same result).
The Eleventh Circuit similarly rejected a substantive due process claim in Doe v. Moore, stating:
410 F.3d at 1345-1346.
In conformity with these opinions, I conclude that Nebraska's registration and public notification requirements are relationally related to a legitimate governmental purpose. Plaintiff's substantive due process claim therefore fails.
C. Procedural Due Process
"Procedural due process limits the ability of the government to deprive people of interests which constitute `liberty' or `property' interests within the meaning of the Due Process Clause and requires that parties deprived of such interests be provided adequate notice and an opportunity to be heard." Murray v. Neth, 279 Neb. 947, 783 N.W.2d 424, 432 (2010).
405 F.3d at 709.
Plaintiffs argue their case is distinguishable from Connecticut Dep't of Pub. Safety v. Doe and Doe v. Miller for two reasons: "First, unlike Doe and Miller, Nebraska previously afforded the specific right to the confidentiality of a registrant's information and a hearing to determine risk of reoffending." (Filing 345, at CM/ECF p. 171.) "Second, the concurring opinions in Doe clearly focused on the fact that the Connecticut law provided for procedures by which certain sex offenders could be exempted from the registration requirements and their information." (Filing 345, at CM/ECF p. 172.) I am not persuaded by either argument.
First, I reject Plaintiffs' unsupported contention that they have a liberty interest in their classification under the former law as low- or moderate-risk offenders whose personal information was not to be publicly disclosed. "The legislature that creates a statutory entitlement (or other property interest) is not precluded from altering or terminating the entitlement by a later enactment." Packett v. Stenberg, 969 F.2d 721, 726 (8th Cir.1992) (citing Gattis v. Gravett, 806 F.2d 778, 780 (8th Cir.1986)). "While the legislative alteration or elimination of a previously conferred property interest may be a deprivation,
Second, I find no authority for the proposition that a sex offender registry act must provide an exemption procedure in order to satisfy due process. The concurring opinion in Connecticut Dep't of Pub. Safety v. Doe did not imply such a requirement, but instead "merely note[d] that the Court's rejection of respondents' procedural due process claim does not immunize publication schemes like Connecticut's from an equal protection challenge." 538 U.S. at 10, 123 S.Ct. 1160 (Souter, J., concurring). That is, Justice Souter simply pointed out that the exemptions provided by Connecticut's law remained open to challenge on equal protection grounds.
Plaintiffs' final due process argument is that "[i]n addition to violating the ex post facto clause, the retroactivity of the New Act violates the due process clause because it is simply unfair, illegitimate, and arbitrary." (Filing 345, at CM/ECF p. 174.) In making this argument, Plaintiffs rely on Doe v. Sex Offender Registry Board, 450 Mass. 780, 882 N.E.2d 298 (2008), in which the Massachusetts Supreme Judicial Court ruled that a person with a rape conviction, who had been released from probation 20 years before Massachusetts' sex offender registration law went into effect, was entitled to a hearing to determine whether he should be exempt from registration despite the law's mandatory registration requirement for persons convicted of sexually violent offenses. The Court concluded that "the retroactive imposition of the registration requirement without an opportunity to overcome the conclusive presumption of dangerousness that flows solely from Doe's conviction, violates his right to due process under the Massachusetts Constitution." Id., at 309.
This case is unpersuasive because it is based on a "reasonableness" test that is unique to Massachusetts. As explained by the Massachusetts court:
882 N.E.2d at 305.
In the present case, the reasonableness test of the Due Process Clause of the United States Constitution "is met simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose." Honeywell, Inc. v. Minnesota Life and Health Ins. Guar. Ass'n, 110 F.3d 547, 555 (8th Cir.1997) (quoting Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 730, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984)).
It is reasonable to conclude that retroactive application of SORA furthers the public safety purpose of the legislation. No further showing is required.
Eleventh and Twelfth Causes of Action—Equal Protection Claim
No State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Constitution, Amend. XIV. "No person shall ... be denied equal protection of the laws." Neb. Const., Art. I, § 3. "The Equal Protection Clause keeps governmental decision makers from treating disparately persons who are in all relevant respects similarly situated." Bills v. Dahm, 32 F.3d 333, 335 (8th Cir.1994) (citing Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992)).
Plaintiffs claim "[t]he New Act violates the Equal Protection Clauses in the United States and Nebraska Constitutions because it is intended solely to disadvantage an unpopular group, and because it treats similarly situated individuals differently with stigmatizing effect." (Filing 345, at CM/ECF p. 177.) They also claim that "the New Act infringes on fundamental rights, specifically the right in one's reputation and name, right to the integrity of a family, right to travel, right to earn a living, and the right to privacy." (Filing 345, at CM/ECF p. 178.)
Convicted sex offenders may be an "unpopular group," but they are not a "suspect class" for equal protection purposes. The SORA amendments therefore are subject to scrutiny under the rational basis test. See Cutshall v. Sundquist, 193 F.3d 466, 482-483 (6th Cir.1999) (holding Tennessee Sex Offender Registration and Monitoring Act did not violate plaintiff's right to equal protection of the laws because "[g]iven the indications that sex offenders pose a particular threat of reoffending, we cannot say that the Act is irrational.").
I have already determined in connection with Plaintiffs' substantive due process claim that Nebraska's registration and public notification requirements are relationally related to a legitimate governmental purpose. This determination also disposes of Plaintiffs' equal protection claim. See Executive Air Taxi Corp. v. City of Bismarck, 518 F.3d 562, 569 (8th Cir.2008) ("A rational basis that survives equal protection scrutiny also satisfies substantive due process analysis.") (citing Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 470 n. 12, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981), and Indep. Charities of Am., Inc. v. Minnesota, 82 F.3d 791, 798 (8th Cir.1996)).
Thirteenth Cause of Action—Special Legislation Claim
"The Legislature shall not pass local or special laws in any of the following cases, that is to say: Granting to any corporation, association, or individual any special or exclusive privileges, immunity, or franchise whatever.... In all other cases where a general law can be made applicable, no special law shall be enacted." Neb. Const., Art. III, § 18.
"The focus of the prohibition against special legislation is the prevention of legislation which arbitrarily benefits or grants `special favors' to a specific class." Yant, 784 N.W.2d at 106. Plaintiffs make no such claim. In fact, they argue just the opposite, claiming that "[t]he `privilege' or `special favor' is gained by everyone not on the registry...." (Filing 345, at CM/ECF p. 182.)
Sixteenth and Seventeenth Causes of Action—Contracts Clause Claim
"No State shall ... pass any ... Law impairing the Obligation of Contracts,...." U.S. Constitution, Art. 1, § 10. "No ... law impairing the obligation of contracts ... shall be passed." Neb. Const., Art. I. § 16.
"A three-part test determines whether a statute violates the Contracts Clause. `The first question is whether the state law has, in fact, operated as a substantial impairment on pre-existing contractual relationships.'" Hawkeye Commodity Promotions, Inc. v. Vilsack, 486 F.3d 430, 436 (8th Cir.2007) (quoting Equip. Mfrs. Inst. v. Janklow, 300 F.3d 842, 850 (8th Cir.2002)). "This question `has three components: whether there is a contractual relationship, whether a change in law impairs that contractual relationship, and whether the impairment is substantial.'" Id., (quoting Gen. Motors Corp. v. Romein, 503 U.S. 181, 186, 112 S.Ct. 1105, 117 L.Ed.2d 328 (1992)). See also Halpin v. Nebraska State Patrolmen's Retirement System, 211 Neb. 892, 320 N.W.2d 910, 913 (1982) ("Where ... it is claimed that the contract clause prohibits a state's statutory modification of its own obligations, the court must determine whether contractual obligations within the purview of the contract clause exist; if so, whether the state legislation under attack impaired those obligations; and if there is an impairment of contract, whether it is forbidden by the Constitution.") (quoting Pineman v. Oechslin, 494 F.Supp. 525, 538 (D.Conn.1980)). "The second prong of the three-part test is whether the state has a `significant and legitimate public purpose behind the regulation.'" Hawkeye Commodity Promotions, Inc., 486 F.3d at 438 (quoting Janklow, 300 F.3d at 850). "The third prong is `whether the adjustment of the "rights and responsibilities of contracting parties [is based] upon reasonable conditions and [is] of a character appropriate to the public purpose justifying [the legislation's] adoption."'" Id., at 439 (quoting Janklow, 300 F.3d at 850 (alterations in original)).
Plaintiffs contend that plea agreements are treated as contracts both in the Eighth Circuit and in Nebraska. See King v. United States, 595 F.3d 844, 853 (8th Cir.2010) ("Plea agreements are essentially contracts between the defendant and Government"); State v. Thompson, 15 Neb.App. 764, 735 N.W.2d 818, 826 (2007) ("[P]lea agreements are contracts"). But cf. United States v. Olesen, 920 F.2d 538, 541 (8th Cir.1990) ("Plea agreements are like contracts; however, they are not contracts, and therefore contract doctrines do not always apply to them.") (emphasis in original). Although it may be questioned whether plea agreements fall within the reach of the Contracts Clause, see, e.g., State v. Holt, 233 P.3d 828, 834-35 (Utah App.2010) (raising but not deciding issue), I will assume this element is satisfied.
Plaintiffs next contend that "[t]he New Act retroactively changes the previous obligations and increases the restrictions on registrants. It lengthens the registration duration; significantly increases the frequency of in-person reporting, potentially to an everyday occurrence; eliminates due process hearings; subjects registrants to public notification who were previously low and moderate risk offenders; increases the depth and breadth of registry information collected; infringes on the right to free speech; undermines the Fourth Amendment; etc., etc." (Filing 345, at CM/ECF p. 184.) The principal problem with this contention is the lack of a showing by Plaintiffs that any provisions of the prior law were incorporated into their plea agreements. Plaintiffs simply claim that "[w]hen the Does who entered into plea
It is generally presumed "that a law is not intended to create private contractual or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise." Honeywell, Inc., 110 F.3d at 552 (quoting National R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry., 470 U.S. 451, 465-66, 105 S.Ct. 1441, 84 L.Ed.2d 432 (1985)). "[A] statute is itself treated as a contract when the language and circumstances evince a legislative intent to create private rights of a contractual nature enforceable against the State." Id. (quoting United States Trust Co. v. New Jersey, 431 U.S. 1, 17 n. 14, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977)). There is nothing in the former Nebraska law that evidences an intent to give plea bargainers a contractual or vested right in the law's registration and notification provisions.
Because Plaintiffs have failed to show any impairment of the terms of their plea agreements, their Contracts Clause claim fails the first prong of the three-part test described in Hawkeye Commodity Promotions, Inc.
Eighteenth Cause of Action— Separation of Powers Claim
"The powers of the government of this state are divided into three distinct departments, the legislative, executive, and judicial, and no person or collection of persons being one of these departments shall exercise any power properly belonging to either of the others except as expressly directed or permitted in this Constitution." Neb. Const., Art. II § 1(1). "The separation of powers doctrine prohibits one branch of government from encroaching on the duties and prerogatives of the others or from improperly delegating its own duties and prerogatives." Slack Nursing Home v. Department of Soc. Servs., 247 Neb. 452, 528 N.W.2d 285, 294 (1995), disapproved on other grounds, Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007).
Plaintiffs argue the Nebraska Legislature has usurped the power of the courts by amending SORA to modify the sentences of registrants who were sentenced prior to January 1, 2010:
(Filing 345, at CM/ECF pp. 189-190.)
For this argument, Plaintiffs rely on a recent decision by the Ohio Supreme Court, State v. Bodyke, 126 Ohio St.3d 266, 933 N.E.2d 753 (Ohio 2010), which held that amendments made to Ohio's sex offender registration law, requiring the attorney general to reclassify offenders who previously were classified by Ohio judges, violates the separation-of-powers doctrine. The court determined that the "provisions governing the reclassification of sex offenders already classified by judges under Megan's Law violate the separation-of-powers doctrine for two related reasons: the reclassification scheme vests the executive branch with authority to review judicial decisions, and it interferes with the judicial power by requiring the reopening of final judgments." Id., at 278, 933 N.E.2d 753. This case is readily distinguishable since under Nebraska's former law, the classification of offenders was made by the Nebraska State Patrol, not the courts. See Neb.Rev.Stat. § 29-4013 (Reissue 2008).
Plaintiffs state that under the former law "the sentencing court had discretion to exempt a defendant from the registration requirements for specified crimes" (filing 345, at CM/ECF p. 189), but this is not accurate. As I read the law, there was no discretionary exemption; instead, courts were required to make a determination of whether persons convicted of certain offenses were within the scope of the registration requirements. Both before and after being amended by LB 97 and LB 285, Section 29-4003(1) provided that persons required to register included those convicted of "[k]idnapping a minor pursuant to section 28-313, except when the person is the parent of the minor and was not convicted of any other offense in this section;" "[f]alse imprisonment of a minor pursuant to section 28-314 or 28-315;" and "[d]ebauching a minor pursuant to section 28-805[.]" Former Section 29-4003(2) provided that "[i]n the case of a person convicted of a violation of section 28-313, 28-314, 28-315, or 28-805, the convicted person shall be subject to the Sex Offender Registration Act, unless the sentencing court determines at the time of sentencing, in light of all the facts, that the convicted person is not subject to the act." Neb.Rev.Stat. § 29-4003(2) (Reissue 2008).
Under former Section 29-4007, as now, the sentencing courts simply notified those persons convicted of registrable offenses of their obligations under SORA. This notification procedure does not prevent the legislature from changing the law.
A trial is necessary to determine the constitutionality of Neb.Rev.Stat. §§ 29-4006(1)(k) & (s), 29-4006(2), and 28-322.05 (West, Operative Jan. 1, 2010), except insofar as I have determined that § 29-4006(2) violates the Fourth Amendment rights of Plaintiffs who were previously convicted of sex crimes but who were not on probation, parole or court-monitored supervision on or after January 1, 2010. As to all other statutory provisions enacted or amended by Nebraska Laws 2009, LB 97 and LB 285, I find no merit to Plaintiffs' constitutional challenges.
IT IS ORDERED:
(Filing 326 at CM/ECF p. 7.)