Doe #35 v. Labrador

679 F.Supp.3d 1019

Jane DOE #35; Jane Doe #36; John Doe #64; John Doe #115; John Doe #117; and John Doe #123, Plaintiffs, v. Raúl LABRADOR,¹ Attorney General of the State of Idaho;and Colonel Kedrick Wills, Director of the Idaho State Police, in their official capacities, Defendants.

Case No. 1:16-cv-00429-DCN

United States District Court, D. Idaho

Signed June 29, 2023

Daniel S. Brown, Greg J. Fuller, Fuller Law Offices, Twin Falls, ID, David B. Rankin, Pro Hac Vice, New York, NY, Regina Powers, Pro Hac Vice, Beldock Levine & Hoffman LLP, New York, NY, Matthew Daniel Strugar, Pro Hac Vice, Law Office of Matthew Strugar, Los Angeles, CA, for Plaintiff John and Jane Does 1-134.

Alan Wayne Foutz, Idaho Attorney General's Office, Civil Litigation Division, Boise, ID, Chris Kronberg, Steven Lamar Olsen, Leslie Marie Hayes, Lincoln Davis Wilson, Timothy Longfield, Idaho Attorney General's Office, Boise, ID, for Defendants.

MEMORANDUM DECISION AND ORDER

David C. Nye, Chief United States District Court Judge

I. INTRODUCTION

On April 5, 2019, the Court dismissed Plaintiffs' Second Amended Complaint with prejudice. Dkt. 47. Plaintiffs successfully appealed, and the case is now before the Court on the Ninth Circuit's remand of some of Plaintiffs' claims. After the Ninth Circuit remanded, Plaintiffs ultimately filed a Fourth Amended Complaint.² Dkt. 73. Defendants filed another Motion to Dismiss (Dkt. 76) and the Court heard oral argument and took the matter under advisement (Dkt. 84).

For the reasons set forth below, Defendants' Motion to Dismiss is DENIED.

II. BACKGROUND

Plaintiffs are six men and women³ who must register for life as sex offenders under Idaho's "Sexual Offender Registration Notification and Community Right-to-Know Act," Idaho Code section 18-8301 et seq. ("SORA"). Plaintiffs were each charged or convicted before 2006, when the Idaho Legislature began amending SORA to impose increasingly harsh restrictions.

Plaintiffs allege a series of amendments to SORA have heightened their registration and notification obligations, and have also imposed direct restrictions on their movement, housing, and employment. Because all amendments to SORA have been applied retroactively to all Idaho sex offender registrants, Plaintiffs argue such provisions violate the Constitution's Ex Post Facto Clause, U.S. Constitution, Art. I, § 10, cl. 1, and its prohibition against double jeopardy, U.S. Const., amend. 5. Plaintiffs also contend the cumulative effect of the amendments to SORA violates Idaho's Free Exercise of Religion Protected Act, Idaho Code section 73-402 ("FERPA").

A. SORA

Idaho's original sex offender registration law came into effect on July 1, 1993. The law imposed only a duty for persons convicted of certain felony sex crimes to register with their local sheriff, and the registry was not available to the public. In 1998, the Idaho Legislature repealed the 1993 law and passed SORA. I C § 18-8301 et seq. SORA created a central registry of offender information and made the registry publicly available. It also delineated seventeen registrable offenses and expanded the category of offenders required to register. Id., § 18-8304.

The 1998 version of SORA applied retroactively to any person convicted of a newly eligible offense after July 1, 1993. It also applied retroactively to any person who entered the state of Idaho after July 1, 1993, who had been convicted of any crime that was "substantially equivalent" to SORA's registrable offenses. The 1998 version of SORA required all registrants to undergo a "psychosexual evaluation" upon conviction. Id., § 18-8316. Registrants convicted of a subcategory of offenses, listed in Idaho Code § 18-8312, and found to pose such a risk based on their evaluation, were deemed "violent sexual predators." Id., § 18-8303(10). All registrants, except for violent sexual predators, were eligible to petition the district court for a show cause hearing to determine whether the person could be exempted from the registration requirements after a ten-year period. Id., § 18-8310(1). Violations of registry requirements could result in felony offenses punishable by up to five years of incarceration and a $5,000.00 fine. Id., § 18-8311(1). If a registrant was on some form of supervised release at the time of a registry violation, punishment could include revocation of release and reinstatement of the underlying prison sentence. Id.

The Legislature amended SORA again in 2001, 2002, 2004, 2005, 2006, 2008, 2009, 2011, 2012, 2013, 2016, 2018, 2019, and 2020. Each set of amendments was applied retroactively in the same manner as the 1998 version of SORA. The amendments expanded SORA's framework, adding to the list of eligible offenses and heightening the obligations of registration. Plaintiffs identify certain amendments as particularly significant.

For instance, the 2001 amendments removed the right of registrants who had been convicted of an "aggravated offense" to petition for release from registration requirements after a ten-year period. By removing the right to petition for removal, the 2001 amendments created a lifetime registration requirement for people convicted of five "aggravated offenses."⁴

The 2004 amendments created a new felony crime for any registrant to accept employment "in any day care center, group day care facility or family day care home," or for any registrant to "be upon or to remain on the premises of a day care center, group day care facility or family day care home while children are present, other than to drop off or pick up the person's child or children[.]" Id., § 18-8327(1). However, the 2004 amendments did add a provision allowing registrants to petition to be excluded from SORA's employment prohibitions. Id., § 18-8328.⁵

In addition to adding sexual contact with a prisoner (I.C. § 18-6110) as a registrable offense, the 2005 amendments expanded out-of-state convictions which require registration in Idaho. Specifically, the 2005 amendments mandated registration for any person convicted of a crime, attempt, solicitation, or conspiracy to commit a crime in another state, territory, commonwealth, or other jurisdiction of the United States substantially equivalent to an enumerated registrable offense, as well as for any person required to register as a sex offender in another state or jurisdiction when s/he established residency in Idaho, regardless of whether the offense was substantially equivalent to an offense enumerated in SORA. Id., § 18-8304(1)(a)-(b).

The 2006 amendments added a provision that made it a misdemeanor offense for any registrant to be upon or remain on or within five hundred feet of school buildings and school grounds when children under the age of 18 are present. Id., § 18-8329(1)(a). This rule also applies to where registrants may reside, unless the registrant's residence was established prior to July 1, 2006. Id., § 18-8329(1)(d). Although the prohibition includes some exceptions, such as for when registrants are students at the school or transporting their own children to and from the school, id., § 18-8329(2)-(3), Plaintiffs contend the rule severely restricts their choice of employment and access to housing.

The 2009 amendments expanded the list of aggravated offenses and made several additional crimes registrable. Id., §§ 18-1506A, 18-1508, 18-4502, 18-4503, 18-8602(1), 18-8304.

SORA was again amended in 2011. As in 2009, new offenses were added to the list of crimes requiring registration. Id., §§ 18-5605, 18-5611, 18-6609, 18-7804. The 2011 amendments also expanded the amount of information required at registration, while decreasing the amount of time registrants had to comply. Id., § 18-8307. In addition, the 2011 amendments required registrants to provide advance notice of any travel lasting longer than a week, and to provide in-person notice of their presence to law enforcement in the jurisdictions to which they travel. Id., § 18-8309. The 2011 amendments also altered the role of individualized review within SORA's framework. The Sex Offender Classification Board—the entity previously responsible for evaluating the risk of offenders and classifying "violent sexual offenders"—was renamed as the "Sex Offender Management Board." I.C. § 18-8312. The provisions charging the Board with evaluating the risk posed by offenders were struck, and the Board's authority was instead defined as the development, advancement, and oversight of sexual offender management policies and practices statewide. Id., § 18-8314(1). The provision requiring a psychosexual evaluation was made discretionary, and the term "violent sexual predator" was redefined to mean only those previously designated as such by the former Classification Board. Id., §§ 18-8303(17), 18-8316.

The 2011 amendments also restated SORA's registration period, making the default term for all registrants "for life." Id., § 18-8307(7). Eligibility to petition for removal after ten years was previously the default, with lifetime registration listed as the exception. After the 2011 amendments, the petition right is listed as the exception from the default of lifetime registration, id., and is available only for those registrants who are not recidivists, were not convicted of an aggravated offense, and were not previously deemed violent sexual predators. Id., § 18-8310(1) amended by 2023 Idaho Laws Ch. 183 (H.B. 117).

While the 2016, 2018, and 2019 amendments primarily tracked changes the Legislature made to underlying offenses, the 2020 Amendments added day cares to the exclusion zone previously only measured around schools and school zones. I.C. § 18-8329.

To summarize, when SORA was enacted in 1998, it required individualized risk evaluation of each registrant, with only those classified as violent sexual predators ineligible to petition for removal. SORA now characterizes registrants based on the offense of conviction—either aggravated or non-aggravated—without any individualized assessment.⁶ The...