Doe v. Wasden

982 F.3d 784

DOES, John and Jane, 1–134, Plaintiff-Appellant,

v.Lawrence WASDEN, Attorney General of the State of Idaho; Kevin Kempf, Director of the Idaho Department of Correction ; Terry Kirkham, Chief Department of Correction Probation and Parole Division; Jon Burnham, Sexual Offender Management Board; Michael Johnston, Ph.D., Sexual Offender Management Board; Moira Lynch, Sexual Offender Management Board; Jeffrey Betts, Sexual Offender Management Board; Erwin Sonnenberg, Sexual Offender Management Board; Jean Fisher, Sexual Offender Management Board; Paula Garay, Sexual Offender Management Board; Kimberly Simmons, Sexual Offender Management Board; William Crawford, Sexual Offender Management Board; Christina Iverson, Sexual Offender Management Board; Ralph Powell, Sexual Offender Management Board; Matthew Thomas, Sheriff, Sexual Offender Management Board; Stephen Bartlett, Ada County Sheriff; Lorin Nielsen, Bannock County Sheriff ; Brent T. Bunn, Bear Lake County Sheriff; Craig T. Rowland, Bingham County Sheriff; Paul J. Wilde, Bonneville County Sheriff; Kiernan Donahue, Canyon County Sheriff; Michael Haderlie, Caribou County Sheriff; Jay Heward, Cassia County Sheriff ; Rick Layher, Elmore County Sheriff ; David Fryar, Franklin County Sheriff; Charles Rolland, Gem County Sheriff; Shawn Gough, Gooding County Sheriff; Steve Anderson, Jefferson County Sheriff; Doug McFall, Jerome County Sheriff ; Lynn Bowerman, Lemhi County Sheriff; Kevin Ellis, Lincoln County Sheriff; Eric Snarr, Minidoka County Sheriff; Joe Rodriguez, Nez Perce County Sheriff; Tom Carter, Twin Falls County Sheriff; Patti Bolen, Valley County Sheriff ; Sexual Offender Management Board; Tony Liford, Teton County Sheriff; Jim Kacqmarek, Boise County Sheriff; Chris Goetz, Clearwater County Sheriff ; Ben Wolfinger, Kootenai County Sheriff; Richard Skiles, Latah County Sheriff, Defendants-Appellees.

No. 19-35391

United States Court of Appeals, Ninth Circuit.

Submitted May 12, 2020^* Portland, Oregon

Filed December 9, 2020

CARDONE, District Judge:

Appellants, 134 men and women registered as sex offenders in Idaho, claim that the retroactive application of Idaho's Sexual Offender Registration Notification and Community Right-to-Know Act, Idaho Code § 18-8301, et seq. ("SORA") is unconstitutional. According to the First Amended Complaint, a series of amendments to SORA have heightened registrants’ registration and notification obligations and imposed direct restrictions on registrants’ movement, housing, and employment. Further, all amendments to SORA have been applied retroactively to all Idaho sex offender registrants. Appellants argue that these retroactively imposed provisions are unconstitutional, in part because they violate the Ex Post Facto Clause and the Free Exercise Clause. The district court granted Appellees’ motions to dismiss, dismissing all of Appellants’ claims. Because we find the district court erred in dismissing the ex post facto and free exercise claims, we reverse in part. Additionally, because the district court predicated its dismissal of the Eighth Amendment and double jeopardy claims on its dismissal of the ex post facto claim, we hold that those judgments were also in error, though we reserve judgment on the merits of those claims.

FACTUAL AND PROCEDURAL HISTORY

The state of Idaho began requiring sex offender registration in July 1993. It initially imposed only a duty for persons convicted of certain felony sex crimes to register with their local sheriff. In 1998, Idaho passed SORA, imposing the more expansive framework still in place today, designed to create public access to information about persons convicted of sexual offenses.

In addition to creating a central registry of public sex offender information, SORA expanded the category of offenders required to register, codifying a catalog of eligible offenses in Idaho Code § 18-8304. The 1998 version of SORA required all registrants to undergo a "psychosexual evaluation." 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." 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 and its obligations after a ten-year period of registration. Violations of registry requirements could result in felony offenses punishable by up to five years of incarceration and a $5,000 fine. If a registrant was on some form of supervised release at the time of a registry violation, punishment for a registration violation could include revocation of release and reinstatement of the underlying sentence.

The 1998 act was applied retroactively to any person convicted of a newly-eligible offense after July 1, 1993. The act was also applied retroactively to anyone who entered the state of Idaho after July 1, 1993, who had been convicted of any crime that was "substantially equivalent" to the act's listed offenses. After the 1998 amendments, the Idaho legislature amended SORA in 2001, 2002, 2004, 2005, 2006, 2008, 2009, 2010, 2011, 2012, and 2013. Each set of amendments was applied retroactively in the same manner as the 1998 act.

In general, these amendments expanded SORA's framework, adding to the list of eligible offenses and heightening the obligations of registration. Appellants emphasize certain changes as particularly significant. In 2001, a new category of "aggravated offenses" was codified, covering a subset of the eligible offenses as well as any eligible offense committed against a victim under the age of thirteen. Registrants convicted of an aggravated offense were made ineligible to petition for removal from the registry. The 2006 amendments added Idaho Code § 18-8329. This provision made it a misdemeanor offense for any registrant to be on or within 500 feet of school buildings and grounds when children under the age of eighteen are present. Some exceptions to the rule were also created, such as for when registrants are students at the school or transporting their own child to and from school. This rule also applies to where registrants may reside, unless the registrant's residence was established prior to July 1, 2006. Appellants allege that the rule severely restricts their access to housing and choice of employment, among other effects.

SORA was significantly amended again in 2011. As in prior years, new offenses were added to the list of crimes requiring registration. There was also a significant increase in the amount of information required at registration and a decrease in the amount of time provided to comply. And, registrants were newly required to provide advance notice of any travel lasting longer than seven days, and to provide in-person notice of their presence to law enforcement in the jurisdictions they travel to.

Further, the 2011 amendments altered the role of individualized review within the framework. The entity previously known as the "Sex Offender Classification Board"—responsible for evaluating the risk of offenders and classifying "violent sexual predators"—was renamed as the "Sex Offender Management Board." The provisions charging the Board with evaluating the risk posed by offenders were struck, and the Board's authority was instead defined as "the advancement and oversight of sexual offender management policies and practices statewide." 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.

Finally, the 2011 amendments restated SORA's registration period, making the default term for all registrants "for life." 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 instead listed as the exception from the lifetime default, and is available only for those registrants who are not recidivists, not convicted of an aggravated offense, and not previously deemed violent sexual predators.

To summarize, when SORA was initially enacted in 1998, it required individualized risk evaluation of each registrant, with only those classified as violent sexual predators ineligible to petition for removal. As amended, SORA instead categorizes registrants based on the offense of conviction, either aggravated or non-aggravated. The default registration term is "for life," but with those convicted of non-aggravated offenses eligible to petition for removal after ten years.

Appellants are a group of men and women who are required to register as sex offenders in Idaho. While Appellants’ circumstances vary, all were previously not required to register or were eligible to petition for removal from registration after ten years. Then, due to retroactive amendments to SORA, Appellants have all been required to register and stripped of any eligibility for removal, instead subject to lifetime registration. As a result, Appellants must comply with SORA's heightened reporting obligations and restrictions on housing, travel, and employment.

Appellants allege a series of effects caused by the retroactive application of SORA's amendments. They allege that SORA severely limits "their ability to direct the upbringing of their children, find housing and employment, get an education, travel, engage in free speech activities (including use of the Internet), be free from harassment and stigma, and understand what is required of them under the statute." They also allege that SORA's restrictions do not serve to ensure public safety or to reduce recidivism by registrants.

Appellants filed suit against a variety of Idaho government officials and entities, claiming that SORA was unconstitutional on several grounds. Specifically, Appellants claimed that SORA was...