Doe v. Lee

518 F.Supp.3d 1157

John DOE #1, Plaintiff,

v.William B. LEE, et al., Defendants.

John Doe #2, Plaintiff,

v.William B. Lee, et al., Defendants.

No. 3:16-cv-02862

No. 3:17-cv-00264

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

Filed February 8, 2021

Edward M. Yarbrough, J. Alex Little, Walter Justin Adams, Bone, McAllester & Norton, PLLC, Nashville, TN, for Plaintiff.

Dianna Baker Shew, Gabrielle C. Mees, Miranda H. Jones, Robert W. Mitchell, Stephanie A. Bergmeyer, Tennessee Attorney General's Office, Nashville, TN, for Defendants.

MEMORANDUM OPINION

ELI RICHARDSON, UNITED STATES DISTRICT JUDGE

Pending before the Court in these consolidated actions are the following motions: (1) Defendants’ Motion for Summary Judgment Against John Doe #1 (Doc. No. 73); and (2) Defendants’ Motion for Summary Judgment Against John Doe #2 (Doc. No. 79) (collectively, "Defendants’ Motions"). Pending also is Plaintiffs’ Motion for Partial Summary Judgment (Doc. No. 66, "Partial Summary Judgment Motion"). Responses and replies have been filed as to each motion, and the motions are ripe for review. For the reasons discussed below, the Court will rule as follows.

Defendants’ Motion for Summary Judgment Against John Doe #1 (Doc. No. 73) will be granted in part and denied in part.

Defendants’ Motion for Summary Judgment Against John Doe #2 (Doc. No. 79) will be granted in part and denied in part.

Plaintiffs’ Motion for Partial Summary Judgment (Doc. No. 66) will be granted in part and denied in part.

BACKGROUND¹

The parties do not dispute the material facts in this case. Plaintiffs John Doe and John Doe ("Doe #1" and "Doe #2") (collectively "Plaintiffs") each brought a separate action against the Governor of the State of Tennessee and the Director of the Tennessee Bureau of Investigation ("TBI") (collectively "Defendants"), each in their official capacity only.² In their respective complaints, Plaintiffs alleged, inter alia , that the retroactive application³ of the Tennessee Sexual Offender and Violent Sexual Offender Registration Verification and Tracking Act of 2004 (hereinafter "SORA"), Tenn. Code Ann. §§ 40-39-201 – 40-39-218 (2018), (1) is an unconstitutional violation of the Ex Post Facto Clause of the United States Constitution,⁴ (2) violates the right to free speech guaranteed by the First Amendment, and (3) imposes oppressive restrictions in violation of the rights to parent, work, and travel under the Due Process Clause of Fourteenth Amendment.⁵ The two cases have been consolidated for the purposes of case management, discovery, and pretrial motions.

A. Background facts regarding Doe #1

In 1994, Doe #1 was convicted of two counts of attempted aggravated sexual battery committed in 1990. (Doc. No. 1 at ¶ 17; Doc. No. 67 at 3). He pleaded either guilty or no contest⁶ to both counts and received five years’ probation. (Doc. No. 94 at ¶ 2).

Doe #1 is a retired airline pilot who currently runs a real estate development and rental company that owns various properties. (Doc. No. 94 at ¶¶ 1, 2). His business includes various properties located throughout Davidson County, adjacent counties, and a resort property in Honduras. (Id. at ¶¶ 2, 4). In 2012, after Metro police officers told him he could not reside at his first residence, Doe #1 moved to another property that he owns. (Id. at ¶ 9). Although the matter with Metro was resolved, Doe #1 has not moved back to his first residence, and instead actively keeps an office at that location. (Id. at ¶¶ 10, 11).

Doe #1 has ten children. (Id. at ¶ 12). One of his children is a minor, and Doe #1 shares parenting responsibilities for that child with his ex-wife. (Id. at ¶¶ 13, 14). Doe #1 also has a number of grandchildren. (Id. at ¶ 26).

B. Background facts regarding Doe #2

Doe # 2 was indicted on three counts of sexual battery committed in 1992 or 1993 against his ex-wife's niece who was twelve years of age or younger at the time. (Doc. No. 92 at ¶ 2; Doc. No. 95 at ¶ 1). He pled either guilty or nolo contendere (he does not remember which)⁷ to all counts of sexual battery in 2000. (Doc. No. 92 at ¶ 2; Case 3:17-cv-00264, Doc. No. 1 at ¶ 17). Doe #2 was sentenced to six years’ probation and was required to register as a sex offender under Tennessee's 1994 Sexual Offender Registration and Monitoring Act, 1994 Tenn. Pub. Laws, ch. 976. (Doc. No. 95 at ¶ 2).

Currently, Doe #2 operates an accounting services company and owns a residence in Nashville. (Id. at ¶¶ 4, 5). As part of his job, Doe #2 attends networking meetings and goes to client meetings at his clients’ offices. (Id. at ¶ 6). Doe #2 has one minor biological daughter. (Id. at ¶ 7). Currently, Doe #2's daughter lives with Doe #2's wife in Bowling Green, Kentucky, and attends school there. (Id. at ¶ 11). Doe #2 additionally has four adult stepchildren (who live in Bowling Green and Washington State) and three minor step-grandchildren. (Id. at ¶¶ 13, 14).

C. Tennessee's Adoption and Amendment of Sexual Offender Registration Statutes

In the Court's Order denying in part and granting in part Defendants’ motions to dismiss ("November 9 Order"),⁸ Chief Judge Crenshaw set forth a helpful recounting of Tennessee's adoption and amendment of its sexual offender registration statutes:

On May 10, 1994, Governor Ned Ray McWherter signed into law Tennessee's Sexual Offender Registration and Monitoring Act ("SORMA"). 1994 Tenn. Pub. Laws, ch. 976. SORMA required TBI to "establish, maintain, and update a centralized record system of sexual offender registration and verification information." Id. § 7(a). "Sexual offender" was defined as an individual who had been convicted of one of a number of enumerated offenses under Tennessee criminal law—or who was convicted of committing the equivalent behavior in another state—unless the offender had been wholly released without supervision from incarceration, probation, or parole prior to January 1, 1995. Id. § 3(2)–(3). Accordingly, SORMA applied to some, but not all, qualifying offenders whose criminal acts occurred before the law's enactment.

SORMA required any individual convicted of a sexual offense to register within ten days of release without supervision from probation, parole, or incarceration. Id. § 4. TBI was then instructed to send the registrant a verification and monitoring form every ninety days, which the registrant was required to complete and return within ten days of receipt. Id. § 5. In addition to these periodic updates, a registrant had an ongoing duty to complete a new form within ten days of any change of residence or entry into a municipality or county for temporary residence or domicile. Id. § 4. SORMA imposed no in-person registration or reporting duty, relying instead on the prescribed paper forms. Id. The information in the SORMA registry was expressly designated as confidential, with the exception that TBI or a local law enforcement agency could "release relevant information deemed necessary to protect the public concerning a specific sexual offender." Id. § 7(c). An offender registered under SORMA was permitted to petition a court for relief from its requirements ten years after his or her release from supervision. Id. § 8(a). The court, upon consideration of several factors including the age of the offender's victims and the behavior of the offender since his offense, was required to grant the petition if it found the registrant had complied with the Act, was rehabilitated, and did not pose a threat to public safety. Id. § 8(c). If the petition was granted, the TBI was required to expunge the registrant's data from its registry. Id.

In the ensuing decade, the General Assembly repeatedly amended SORMA either to expand its scope, increase the reporting requirements placed on registered offenders, or reduce the level of confidentiality of registry information. See 1996 Tenn. Pub. Acts, ch. 834, § 1 (extending SORMA to individuals charged with sex offenses but placed on pre-trial and judicial diversion); 1997 Tenn. Pub. Acts, ch. 455, § 3 (extending SORMA to individuals who had completed diversion and had their records expunged); 1997 Tenn. Pub. Acts, ch. 461, § 2 (making public registry information for offenders whose offenses were committed after July 1, 1997); 1997 Tenn. Pub. Acts, ch. 466, § 1 (extending SORMA to individuals convicted of certain non-sexual offenses against minors and permitting TBI to require that registrants provide current photographs); 2000 Tenn. Pub. Acts, ch. 882, § 1 (imposing mandatory 180-day sentence for falsification of registration forms); 2000 Tenn. Pub. Acts, ch. 997, § 1–2 (imposing mandatory lifetime registration for offenders with multiple convictions for sexual offenses or a single conviction of a "violent sexual offense," defined as actual or attempted aggravated rape, rape, aggravated sexual battery, or rape of a child); 2000 Tenn. Pub. Acts, ch. 997, § 3 (requiring registered offender to report within ten days of coming to a municipality or county in which they work or are students); 2002 Tenn. Pub. Acts, ch. 469, §§ 3, 5, and 11 (requiring registered offenders to report within ten days of being employed or becoming a student or volunteer at an institution of higher learning in the county or municipality in which they reside, and providing that the name and address of that institution will be made public for registered offenders who committed offenses after October 27, 2002).

SORMA did not expressly restrict where a registrant could live, work, or travel until 2003. ( Doc. No. 1 at ¶ 55; Case No. 3:17-cv-00264, Doc. No. 1 at ¶ 39.) In 2003, however, the General Assembly enacted legislation prohibiting a SORMA registered offender from: establishing a residence or accepting employment with 1,000 feet of a school, a child care facility, or the home of their victim or the victim's immediate family member; coming within 100 feet of the victim; establishing a residence or other living accommodation with a minor who was not the registered

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