Doe v. Lee

608 F.Supp.3d 588

John DOES #1–10, Plaintiffs,

v.William LEE, in his capacity as Governor of the State of Tennessee, and David Rausch, in his capacity as Director of the Tennessee Bureau of Investigation, Defendants.

Case No. 3:21-cv-00590

Case No. 3:21-cv-00593

Case No. 3:21-cv-00594

Case No. 3:21-cv-00595

Case No. 3:21-cv-00596

Case No. 3:21-cv-00597

Case No. 3:21-cv-00598

Case No. 3:21-cv-00624

Case No. 3:21-cv-00671

Case No. 2:22-cv-00004

United States District Court, M.D. Tennessee, Nashville Division.

Filed June 22, 2022

Edward M. Yarbrough, Walter Justin Adams, Bone, McAllester & Norton, PLLC, Nashville, TN, Jonathan P. Farmer, Spencer Fane LLP, Nashville, TN, for Plaintiffs.

Cody N. Brandon, Office of the Attorney General and Reporter, Nashville, TN, Courtney Orr, Mallory K. Schiller, Miranda H. Jones, Robert W. Mitchell, Tennessee Attorney General's Office, Nashville, TN, for Defendants.

MEMORANDUM

ALETA A. TRAUGER, United States District Judge

Governor William Lee and Director David Rausch of the Tennessee Bureau of Investigation ("TBI") have filed a Motion to Dismiss John Doe #9's Complaint for Declaratory and Injunctive Relief (Doc. No. 65), to which Doe #9 has filed a Response (Doc. No. 75), and the defendants have filed a Reply (Doc. No. 77). The defendants have also filed a Motion to Dismiss John Doe #10's Complaint for Declaratory and Injunctive Relief (Doc. No. 80), to which Doe #10 has filed a Response (Doc. No. 82), and the defendants have filed a Reply (Doc. No. 85). For the reasons set out herein, the motion directed at Doe #9's claims will be denied, and the motion directed at Doe #10's claims will be granted in part and denied in part.

I. BACKGROUND

In 1994, the Tennessee General Assembly adopted legislation requiring the TBI to "establish, maintain, and update a centralized record system of sexual offender registration and verification information." 1994 Tenn. Pub. Laws, ch. 976 § 7(a). For clarity, the court will refer to that law—and the enactments that amended or superseded it—as "the Act." The Act, in its original form, required registration for all individuals convicted of any one of a number of identified sexual offenses, "unless the offender had been wholly released without supervision from incarceration, probation, or parole prior to January 1, 1995." Doe v. Haslam , No. 3:16-CV-02862, 2017 WL 5187117, at *1 (M.D. Tenn. Nov. 9, 2017) (Crenshaw, C.J.) (citing 1994 Tenn. Pub. Laws, ch. 976 § 3(2)–(3)). Accordingly, there existed a subset of defendants who were—or, upon release, would become—required to register based on crimes they committed before the Act was adopted.

The Constitution's State Ex Post Facto Clause—which the court will refer to as "the Ex Post Facto Clause," because its counterpart, the Federal Ex Post Facto Clause, U.S. Const., art. I, § 9, cl.3, is not at issue in this case—provides that "[n]o State shall ... pass any ... ex post facto Law." U.S. Const., art. I, § 10, cl. 1. That provision has long been construed to forbid a state legislature from retroactively "alter[ing] the definition of crimes or increas[ing] the punishment for criminal acts." Collins v. Youngblood , 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). The Ex Post Facto Clause's prohibition has not, however, been construed to apply to civil enactments. See Cal. Dep't of Corr. v. Morales , 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). But see Collins , 497 U.S. at 41, 110 S.Ct. 2715 (acknowledging that a literal reading of the language would reach all, not merely criminal, laws). Accordingly, whether the Tennessee General Assembly's retroactive application of the Act was constitutional depended on whether inclusion on the registry was considered a criminal punishment. At the time of the Act's adoption, there was no Supreme Court caselaw resolving that question. Shortly thereafter, however, the Supreme Court held that purely informational offender registry schemes—which the Act, for the most part, initially was—are generally civil and therefore can be applied retroactively. Smith v. Doe , 538 U.S. 84, 104, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003).

In reaching that holding, however, the Supreme Court made clear that, even if a law purports to be civil, whether it is civil or criminal depends on the substantive features of the law itself. Id. at 92, 123 S.Ct. 1140 ("If ... the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is ‘so punitive either in purpose or effect as to negate [the State's] intention’ to deem it civil.’ ") (quoting Kansas v. Hendricks , 521 U.S. 346, 347, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) ). As such, the permissibility of applying the Act to pre-registry offenses depended, and continues to depend, on what the Act actually requires.

Over the years, the Tennessee General Assembly enacted over two dozen changes to the Act, primarily to make being on the registry more restrictive of the registrant's freedom and less protective of his privacy. See Doe v. Haslam , No. 3:16-CV-02862, 2017 WL 5187117, at *1 (M.D. Tenn. Nov. 9, 2017) (Crenshaw, C.J.) (detailing amendments). As amended, the Act treats the registry, not chiefly as an informational resource, but as the criterion pursuant to which a subset of the state's population is made subject to a complex and demanding set of regulations on their behavior, including where they can live and work. See Reid v. Lee , 476 F. Supp. 3d 684, 689–93 (M.D. Tenn. 2020) (Trauger, J.) (listing key restrictions and requirements). As those changes piled up, the Act expanded farther and farther beyond the borders of what the Supreme Court has held to be civil for the purposes of retroactive application. Nevertheless, Tennessee has continued applying the Act retroactively.

Tennessee was not alone in adopting an increasingly aggressive registry regime; Michigan, among other states, pursued a similar path and ended up with a similar law that, like Tennessee's, applied retroactively to some offenders. Some of the Michigan offenders required to register for pre-registry offenses came to believe that, in light of the increasingly punitive effect of being included on the registry, their registry-related obligations could no longer be fairly considered civil in nature and therefore could not be applied ex post facto. A group of registrants therefore challenged the retroactive application of the Act, and, in 2016, the Sixth Circuit held in Does #1-5 v. Snyder , 834 F.3d 696 (6th Cir. 2016), that the Michigan law was inescapably criminal in nature and therefore was subject to the Ex Post Facto Clause. Accordingly, the court held that Michigan's law could not be applied to those plaintiffs.

Tennessee's Act has been challenged pursuant to Snyder a number of times, and officials for the State of Tennessee have, so far, not identified any meaningful difference between Tennessee's law and Michigan's that would undermine the conclusion that Tennessee's registry regime, like Michigan's, cannot be applied to individuals whose offenses pre-dated the Act. See, e.g., Doe #1 v. Lee , 518 F.Supp.3d 1157, 1218–19 (M.D. Tenn. 2021) (Richardson, J.); Jackson v. Rausch , No. 3:19-CV-377, 2020 WL 7496528, at *4 (E.D. Tenn. Dec. 21, 2020) (Jordan, J.) Reid , 476 F.Supp.3d at 708 (Trauger, J.); Doe v. Rausch , 461 F. Supp. 3d 747, 769 (E.D. Tenn. 2020) (Reeves, C.J.); Doe v. Rausch , 382 F. Supp. 3d 783, 799–800 (E.D. Tenn. 2019) (Phillips, J.).

Does #1 through #10 are among the individuals who have challenged the retroactive application of the Act to them. On December 3, 2021, the court entered a preliminary injunction forbidding the defendants from enforcing the Act against Does #1 through #8. (Doc. No. 76 at 8.) Doe #9 was not included because he does not presently live in Tennessee, and, as the court held, that fact "affect[s] multiple aspects of the preliminary injunction analysis" in a way that, the court concluded, rendered granting his request for an injunction at that time premature. (Id. at 7.) Doe #10 was not included in the request for a preliminary injunction, likely because he was not yet part of the litigation, but he has since filed claims of his own, which the court consolidated with the other plaintiffs’. The defendants now seek dismissal of Doe #9's claims for lack of jurisdiction and Doe #10's claims on the merits.

II. LEGAL STANDARD

A. Rule 12(b)(1)

"Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction generally come in two varieties: a facial attack or a factual attack." Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co. , 491 F.3d 320, 330 (6th Cir. 2007). When a Rule 12(b)(1) motion contests jurisdiction factually, the court must weigh the evidence in order to determine whether it has the power to hear the case, without presuming the challenged allegations in the complaint to be true. Id. ; DLX, Inc. v. Kentucky , 381 F.3d 511, 516 (6th Cir. 2004). When the facts are disputed in this way, "[t]he district court has broad discretion to consider affidavits, documents outside the complaint, and to even conduct a limited evidentiary hearing if necessary," without converting the motion into one for summary judgment. Cooley v. United States , 791 F. Supp. 1294, 1298 (E.D. Tenn. 1992), aff'd sub nom. Myers v. United States , 17 F.3d 890 (6th Cir. 1994) ; see also Gentek , 491 F.3d at 330. It is then the plaintiff's burden to show that jurisdiction is appropriate. DLX , 381 F.3d at 511.

However, if a Rule 12(b)(1) motion challenges subject matter jurisdiction based on the face of the complaint, as this one does, the plaintiff's burden is "not onerous." Musson Theatrical Inc. v. Fed. Express Corp. , 89 F.3d 1244, 1248 (6th Cir. 1996). A court evaluating this sort of facial attack to the assertion of subject matter jurisdiction must consider the allegations of fact in the complaint to be true and evaluate jurisdiction accordingly. Gentek , 491 F.3d at 330 ;...