Doe v. Mayes

1

Jane Doe, et al., Plaintiffs, v. Kris Mayes, et al., Defendants.

No. CV-24-02259-PHX-MTL

United States District Court, D. Arizona

November 22, 2024

WO

ORDER

Michael T. Liburdi United States District Judge

Pending before the Court is Plaintiffs' Motion for Preliminary Injunction (Doc. 14). The Court previously granted an agreed-upon temporary restraining order to preserve the status quo while Defendants prepared an opposition to Plaintiffs' Motion. (Docs. 35, 36, 42.) The Motion now being fully briefed, with oral argument held on October 30 2024, the Court will now address the Motion's merits. (Docs. 14, 86, 95.) For the foregoing reasons, the Motion will be denied.

I. BACKGROUND

During the 2024 legislative session, the Arizona Legislature passed, and the Governor signed, Senate Bills 1236 and 1404-the subject matter of this litigation. Senate Bill 1236 adds information to Arizona's sex offender website. 2024 Ariz. Sess. Laws ch. 158 § 1 (hereinafter “S.B. 1236”); see also A.R.S. § 13-3827 (2021). More specifically, it adds the information of any offender eighteen years of age or older who commits sexual assault, commercial sexual exploitation of a minor, and child prostitution. See S.B. 1236 § 1. As well as the information of any offender twenty-one years of age or older who commits an offense listed in A.R.S. § 13-3827(A)(2)(b), (d)-(f), (h)-(m)^[1] and is sentenced pursuant to A.R.S. § 13-705.^[2] See id. § 1.

These changes to Arizona's sex offender website will impact certain level one sex offenders.^[3] Prior to the enactment of Senate Bill 1236, level one offenders had their information published on Arizona's website if they committed an offense listed in A.R.S. § 13-3827(A)(2)(b), (d)-(f), (h)-(m) against a child under twelve years old; or if they committed sexual assault, commercial sexual exploitation of a minor, child prostitution, or child sex trafficking. See A.R.S. § 13-3827 (2021). Senate Bill 1236 takes the offenses already listed in A.R.S. § 13-3827(A)(2)(b), (d)-(f), (h)-(m) and uses them to now also require publication when a level one offender, twenty-one years of age or older, commits one of the listed offenses and is subsequently sentenced pursuant to A.R.S. § 13-705. Compare S.B. 1236 § 1, with A.R.S. § 13-3827 (2021). With there being no change to the offenses qualifying a level one offender, and with level one offenders already being subject to publication if the victim was under twelve years old, Senate Bill 1236 primarily changes the publication requirements based on the age of the victim and the offender's age when committing the crime.

Senate Bill 1404 changes the reporting requirements for sex offenders. 2024 Ariz. Sess. Laws ch. 57 §§ 1-2 (hereinafter “S.B. 1404”). Sex offenders must register with the local sheriff's office anytime they enter and remain in a county for more than seventy-two hours. A.R.S. § 13-3821(A). To register, the offender must be fingerprinted, photographed, and disclose information like their name, website identifier, and vehicle information. A.R.S. § 13-3821(1). Senate Bill 1404 adds to these requirements by ordering an offender who has “legal custody of a child who is enrolled in school” to report their “child's name and enrollment status” while registering. S.B. 1404 § 1. If the child's enrollment status changes, Senate Bill 1404 requires the offender to report the change within seventy-two hours. Id. § 2.

Senate Bill 1404 also expands the class of sex offenders who are subject to community notification. Id. § 3. Prior to Senate Bill 1404, local law enforcement only disseminated the information of level two and level three sex offenders to “the surrounding neighborhood, area schools, appropriate community groups, and prospective employers.” A.R.S. § 13-3825(C)-(D) (2017). Senate Bill 1404 adds “[l]evel one offenders who have been convicted of a dangerous crime against children” to the class whose information is disseminated by local law enforcement. S.B. 1404 § 3. In addition, it requires local law enforcement to notify a child's school when the child's parent or legal guardian is a sex offender subject to community notification-expanding the reach of community notification beyond “area schools” to wherever an offender's child attends. See Id. Information disseminated during the community notification process includes the offender's photograph, exact address, offender status, and criminal background. A.R.S. § 13-3825(C).

Plaintiffs are four individuals who claim their reporting and monitoring requirements will be impacted by Senate Bills 1236 and 1404. The first plaintiff, Jane Doe, was convicted of two counts of child molestation in 2006.^[4] (See Doc. 14-1 ¶ 3, ¶ 5.) Both counts were classified as dangerous crimes against children under A.R.S. § 13-705. (Id. ¶ 6). After completing her term of incarceration, Jane Doe underwent Arizona's sex offender risk assessment screening and was classified as a level one offender. (Id. ¶ 12.) She will face new community notification requirements under Senate Bill 1404, and her status as a sex offender will be published online under Senate Bill 1236. (Id. ¶ 26.) Jane Doe claims these changes to the law will cause “fear for [her] physical safety,” loss of her home, “ostracization from [her] community,” and loss of career opportunities. (Id. ¶¶ 27-30.)

The second plaintiff, John Doe I, is a level one sex offender who pleaded guilty and was convicted of “attempted sexual contact with a minor, sexual abuse, and public sexual indecency” in 2016. (Doc. 14-2 ¶ 3, ¶ 8.) Two of those crimes were classified as dangerous crimes against children under A.R.S. § 13-705. (Id. ¶ 4.) As a level one offender, John Doe I will face new community notification requirements under Senate Bill 1404, and his status as a sex offender will be published online under Senate Bill 1236. (Id. ¶ 26.) He claims these changes will impact his business through lost customers. (Id. ¶ 28.)

The third plaintiff, John Doe II, is a level one offender who pleaded guilty to and was convicted of attempted child molestation in 2008. (Doc. 14-3 ¶ 4, ¶ 9.) That charge was classified as a dangerous crime against children under A.R.S. § 13-705. (Id. ¶ 6.) John Doe II has legal custody of his minor child who is currently enrolled in school. (Id. ¶ 3.) Senate Bill 1404 will require John Doe II to begin reporting information about his child to the local sheriff's office. (Id. ¶ 29.) It also will require local law enforcement to notify his child's school about his status as a sex offender. (Id.) John Doe II alleges these requirements will cause his child to “face risks of harassment, ostracization, and bullying.” (Id. ¶ 30.) Moreover, John Doe II claims he “will no longer feel free to visit [his] child at their school for fear” of negative social consequences, and he would be forced to reveal to his child his status as a sex offender before an appropriate age. (Id. ¶¶ 31-33.)

The final plaintiff, Minor Doe, is the minor child of John Doe II. (Doc. 14-4 ¶ 4.) Minor Doe's name, school, and enrollment status will be reported to the local sheriff's office under Senate Bill 1404. Minor Doe claims the reporting will violate Minor Doe's privacy. (Id. ¶ 10, ¶ 12.) Minor Doe also claims bullying will occur if the notification requirements in Senate Bill 1236 go into effect. (Id. ¶ 11.)

II. LEGAL STANDARD

A party facing irreparable harm prior to the conclusion of litigation may ask a court to grant a temporary restraining order or preliminary injunctive relief. Fed.R.Civ.P. 65(b). “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). For a court to issue a preliminary injunction, the movant “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20). “When, like here, the nonmovant is the government, the last two Winter factors ‘merge.'” Baird v. Bonta, 81 F.4th 1036, 1040 (9th Cir. 2023) (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)).

Normally, a court must consider all four Winter factors when analyzing a request for injunctive relief. Id. Yet, when the movant is unable to show a likelihood of success on the merits, or that there is at least a “serious question[] going to the merits,” the remaining three factors need not be considered. See id.; Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011)). A serious question on the merits is a lesser showing than likelihood of success on the merits. Shell Offshore, Inc., 709 F.3d at 1291. It only warrants injunctive relief when “the ‘balance of hardships tips sharply in the movant's favor,' and the other two Winter factors are satisfied.” See id. (quoting All. for the Wild Rockies, 632 F.3d at 1134-35).

III. ANALYSIS

A. Likelihood of Success on the Merits

1. Ex Post Facto Clause

Article I, Section 10, of the United States Constitution provides “[n]o State shall . . . pass any . . . ex post facto [l]aw.” Known as the Ex Post Facto Clause, this command prevents the passage of any law “impos[ing] a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Weaver v. Graham, 450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri, 4 Wall. 277, 325-26 (1866)). In Smith v. Doe, 538 U.S. 84 (2003), the United States Supreme Court outlined “the standard for...