Santini v. Rausch

BENJAMIN SANTINI, Plaintiff, v. DAVID RAUSCH,in his official capacity as Director of the Tennessee Bureau of Investigation, Defendant.

Case No. 3:20-cv-00661

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

May 21, 2021

Judge Aleta A. Trauger

MEMORANDUM

Tennessee Bureau of Investigation ("TBI") Director David Rausch ("Director") has filed a Motion to Dismiss (Doc. No. 28), to which Benjamin Santini has filed a Response (Doc. No. 37), and the Director has filed a Reply (Doc. No. 38.) For the reasons set out herein, the court will grant the motion in part and deny it in part.

I. BACKGROUND¹

On March 14, 2014, Santini entered a guilty plea to incest, Tenn. Code § 39-15-302, and statutory rape, Tenn. Code § 39-13-506, in Rutherford County Circuit Court.² (Doc. No. 24 ¶ 7.) On the recommendation of the State of Tennessee, he was granted judicial diversion, "a form oflegislative largess available to qualified [Tennessee] defendants who have entered a guilty or nolo contendere plea or have been found guilty of an offense without the entry of a judgment of guilt." State v. Dycus, 456 S.W.3d 918, 925 (Tenn. 2015) (quoting State v. King, 432 S.W.3d 316, 323 (Tenn. 2014)). When a plaintiff is granted judicial diversion, the court "place[s] the defendant on probation upon such reasonable conditions as it may require without entering a judgment of guilty and with the consent of the qualified defendant." Tenn. Code Ann. § 40-35-313(a)(1)(A). In other words, judicial diversion permits a court to place a consenting defendant on probation while nevertheless formally freezing his case in a sort of limbo between a plea (or finding) of guilt—which has already occurred—and the actual entry of a judgment reflecting that guilt—which has not. "If, during the period of probation, the person does not violate any of the conditions of the probation, then upon expiration of the period, the court shall discharge the person and dismiss the proceedings against the person." Tenn. Code Ann. § 40-35-313(a)(2). That dismissal is "without court adjudication of guilt" and, unless some more specific provision indicates otherwise, "shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime or for any other purpose." Id. If, however, the defendant violates the terms of his probation while on judicial diversion, "the court may enter an adjudication of guilt." Id. Although incest is not currently an offense for which judicial diversion is eligible, that was not the case in 2014. See 2018 Tenn. Laws Pub. Ch. 951 (H.B. 149) (adding incest to list of diversion-ineligible sexual offenses).

The Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act ("Act"), Tenn. Code Ann. § 40-39-201 et seq., requires individuals "convicted" of certain offenses to be included on the state's sexual offender registry and to comply with a number of (often quite severe) restrictions on their behavior, including restrictionson where they can live, work, or even be present. A detailed list of the most salient requirements of the Act can be found in this court's opinion in Reid v. Lee, 476 F. Supp. 3d 684, 689-93 (M.D. Tenn. 2020) (Trauger, J.). The definition of "conviction" used by the Act expressly "include[s] a plea taken in conjunction with [the diversion statute] or its equivalent in any other jurisdiction." Tenn. Code Ann. § 40-39-202(1). While Santini was in judicial diversion for four years, therefore, he was treated as a convicted sexual offender for the purposes of the Act, despite the fact that he had not been formally convicted of the charges. Since 2019, the Act has provided that the TBI shall remove an offender from the registry if "[t]he offender previously entered a term of judicial diversion . . . , prior to May 24, 2019, for the offense for which the person [was] required to register . . . and subsequently successfully complete[d] the term of judicial diversion." Tenn. Code Ann. § 40-39-207(c)(2); see 2019 Tenn. Laws Pub. Ch. 502 (H.B. 624).

Santini provided, with his Complaint, a transcript of his plea hearing, which included discussion of Santini's sexual offender registry status. In that hearing, the assistant district attorney general representing the State of Tennessee described the relevant portions of the underlying plea deal as follows:

The Defendant should be granted deferral on these charges. . . . [H]e will have sex offender treatment and take responsibility for his actions. He will be on the sex offender registry and follow the requirements. And that would be for the period of his diversion if he complies with all conditions and completes it. And that diversion will be for a total of four years. If he loses the diversion, he understands that he will be on the sex offender registry for a lot longer than that.

(Doc. No. 25-2 at 9.) Consistently with those terms, Santini received suspended concurrent sentences of two and four years, he was added to the State of Tennessee's sexual offender registry, which is maintained by TBI, and he began his period of judicial diversion. (Doc. No. 24 ¶ 9.) The written Order granting diversion acknowledges that Santini would be placed on theregistry and required to "follow [its] requirements," but it makes no explicit statement regarding the duration of his placement on the registry or the circumstances, if any, in which he could be removed from it. The reference to registration, however, appears as part of the "SPECIAL CONDITIONS" of his probation, and his probation was, on the face of the Order, set to expire after four years. (Doc. No. 25-1 at 1-4.)

Santini apparently complied with the conditions of his probation, and, on March 12, 2018, he was discharged from judicial diversion. (Doc. No. 24 ¶ 10.) "Upon the dismissal of the person [on judicial diversion] and discharge of the proceedings against the person . . . , the person may apply to the court for an order to expunge from all official records . . . all recordation relating to the person's arrest, indictment or information, trial, finding of guilty and dismissal and discharge." Tenn. Code Ann. § 40-35-313(b). A little over a week after Santini was discharged, he filed a "Motion to Dismiss and Expunge" related to the charges. (Doc. No. 24 ¶ 10.) On April 23, 2019, the Circuit Court entered an Order granting expungement and stating that "[i]t is ordered that all PUBLIC RECORDS relating to such offense above referenced be expunged and immediately destroyed upon payment of all costs to [the] clerk." (Doc. No. 25-5 at 1.)

Santini, his probation completed and his record expunged, requested that TBI remove him from the sexual offender registry, as the assistant district attorney general had seemingly promised in the plea hearing. On July 31, 2019, TBI mailed Santini a letter denying his request. (Doc. No. 24 ¶ 12; Doc. No. 25-6.) On March 2, 2020, counsel for Santini again requested that he be removed from the sexual offender registry, explaining, this time, in detail why he believed he was entitled to removal. (Doc. No. 24 ¶ 13.) On April 29, 2020, TBI sent a second letter denying the request. (Doc. No. 25-8.) In the letter, TBI Associate Counsel Rachel Russellacknowledged that Tenn. Code Ann. § 40-39-207(c)(2) stated that an individual who successfully completed judicial diversion should be removed from the registry, but she claimed that Santini's case was instead governed by the provision now codified at Tenn. Code Ann. § 40-39-207(g)(2), which provides that "[a]n offender required to register under this part shall continue to comply with the registration, verification and tracking requirements for the life of that offender, if that offender . . . [h]as been convicted of a violent sexual offense, as defined in [Tenn. Code Ann.] § 40-39-202." Tenn. Code Ann. § 40-39-207(g)(2). Incest has been defined by the Act as a "violent criminal offense" since before Santini's plea or his underlying alleged actions. See, e.g., Tenn. Code Ann. § 40-39-202(30)(V) (2011).

Russell also wrote, "You . . . briefly mention the expungement order. Just for clarification, your client's offenses are not eligible for expungement. I will refer you to Tenn. Code Ann.§ 40-32-101(a)(1)(D)." That provision states that "the records of a person who successfully completes a . . . judicial diversion program pursuant to § 40-35-313 . . . shall not be expunged pursuant to this section, if the offense for which the person was diverted was a sexual offense as defined by § 40-39-202, or a violent sexual offense as defined by § 40-39-202." Tenn. Code Ann.§ 40-32-101(a)(1)(D). Russell, however, did not cite any basis on which TBI would have the authority to disregard an order of expungement entered by a Tennessee court merely because TBI's attorneys unilaterally concluded that the expungement was in error.

On July 31, 2020, Santini filed a Complaint in this court setting forth claims pursuant to 42 U.S.C. 1983, based on the alleged denial of his federal constitutional rights. (Doc. No. 1.) On December 23, 2020, he filed a First Amended Complaint. He pleads three counts: Count I is for denial of due process related to TBI's refusal to remove him from the registry; Count II is for denial of due process based on the State of Tennessee's alleged breaching of his plea agreement;and Count III is for the unlawful imposition of an ex post facto criminal punishment. (Id. ¶ 28.) The Director, who is the only defendant named, now seeks dismissal of all three counts. (Doc. No. 28.)

II. LEGAL STANDARD

In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court will "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The ...