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Doe v. Haslam

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

November 9, 2017

JOHN DOE and JOHN DOE #2 Plaintiffs,
v.
WILLIAM E. HASLAM, Governor of the State of Tennessee, and MARK GWYN, Director of the Tennessee Bureau of Investigation, in their official capacities, Defendants.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE

         Before the Court are Motions to Dismiss (Doc Nos. 10 & 26) filed by Defendants Governor William E. Haslam and Tennessee Bureau of Investigation (“TBI”) Director Mark Gwyn in two cases that have been consolidated for the purposes of case management, discovery, and pretrial motions. For the reasons below, the Motions will be GRANTED in part and DENIED in part. Count 2, 3, 6, and 7 of the Complaints will be DISMISSED. Counts 8 and 9 will be DISMISSED only insofar as they challenge Tennessee's restrictions on where Plaintiffs may obtain treatment, and Defendants' requests to dismiss those claims and Count 1 will otherwise be DENIED.

         I. BACKGROUND [1]

         A. Plaintiffs' Convictions

         In early 1994, John Doe (“Doe #1”) pleaded nolo contendere to two counts of attempted aggravated sexual battery against his daughter and was sentenced to five years of probation. (Doc. No. 1 at ¶¶ 17-18.) He completed his sentence in 1999, and since then has lived what he characterizes as a productive life as a commercial landlord and commercial real estate developer. (Id. at ¶¶ 18-19.) He has not been convicted of any crime since his conviction in 1994. (Id. at ¶ 21.) Doe maintains that he was innocent of the crimes with which he was charged and that he accepted a plea in order to spare his daughter the ordeal of a trial. (Id. at ¶ 17.) For the purposes of this matter, it suffices to say that he was convicted of the crimes at issue and that any actions forming the factual predicates of his convictions took place prior to May of 1994.

         In 2000, John Doe #2 pleaded either nolo contendere or guilty-he says that he does not recall which-to three counts of sexual battery of his ex-wife's niece, who had been under the age of thirteen at the time. (Case No. 3:17-cv-00264, Doc. No. 1 at ¶ 17.[2]) The alleged battery occurred almost ten years before Doe #2's plea. (Id.) Doe #2 was sentenced to six years of probation, which he completed in 2006. (Id. at ¶ 18.) Since his conviction, Doe #2 has provided accounting and management services and led what he characterizes as a productive life. (Id. at ¶ 19.) Like Doe #1, Doe #2 maintains his innocence, but, as with Doe #1, it suffices to say that he was convicted of the crimes at issue and that any conduct underlying his convictions occurred prior to May of 1994.

         B. Tennessee's Adoption and Amendment of 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 offender's own child; and establishing a residence with the registered offender's own minor child, if any child of the offender had been the offender's victim or if the offender's parental rights had been or were being terminated. 2003 Tenn. Pub. Acts, ch. 95, § 1. A violation of any of the 2003 prohibitions was a Class A misdemeanor. Id.

         In 2004, the Tennessee General Assembly repealed SORMA and replaced it with the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act (“Act”), which continues, in amended form, today. 2004 Tenn. Pub. Laws, ch. 921. The Act continued the State's registration system, albeit with some changes. Carrying on a distinction first introduced to SORMA in 2000, the Act classifies registrants as either “sexual offenders” or “violent sexual offenders, ” depending on the offense of which that registrant was convicted. Individuals classified as sexual offenders include those convicted of sexual battery, statutory rape, aggravated prostitution, sexual exploitation of a minor, incest, indecent exposure (upon the third such conviction), and false imprisonment of a minor who was not the offender's own child-an offense that, in and of itself, contains no expressly sexual element, see Tenn. Code Ann. § 39-13-302 (“A person commits the offense of false imprisonment who knowingly removes or confines another unlawfully so as to interfere substantially with the other's liberty.”). Id. § 1(16). Also included as sexual offenders are any offenders convicted of attempt, solicitation, conspiracy, criminal responsibility, facilitation, or being an accessory after the fact with regard to any of the qualifying offenses. Id. Individuals classified as violent sexual offenders include those convicted of rape, aggravated rape, rape of a child, aggravated sexual battery, aggravated or especially aggravated sexual exploitation of a minor, aggravated or especially aggravated kidnapping of a minor other than the offender's own child, sexual battery by an authority figure, solicitation of a minor, and attempt, solicitation, or conspiracy with regard to any of the aforementioned qualifying offenses. Id. §1(24).

         Under the Act, sexual offenders must verify their registration information on an annual basis, and violent sexual offenders must do so quarterly. Tenn. Code Ann. § 40-39-204(b)-(c). In contrast to SORMA's system of TBI-propagated forms, the Act requires offenders to register and report in person to a designated law enforcement agency. Tenn. Code Ann. §§ 40-39-203(a), 40-39-204(b). Reports based on certain triggering events, such as a change of residence or employment, must be made within forty-eight hours. Tenn. Code Ann. § 40-39-203(a)(3)-(6). The Act increased the amount of information required to be reported, Tenn. Code Ann. § 40-39-203(h), and offenders are required to pay administrative fees related to their ongoing inclusion in the registry, Tenn. Code Ann. § 40-39-204(b)(1) and (c). Some offenders remain eligible for removal from the registry after ten years, but the authority to make an initial removal decision has been vested in the TBI, with a right to appeal to a chancery court. Tenn. Code Ann. § 40-39-207(b), (g). A violation of the Act's requirements is now a felony, as opposed to a misdemeanor under SORMA. Tenn. Code Ann. § 40-39-208(b).

         Like SORMA, the Act has been repeatedly revised to increase its restrictions and requirements and to make more information about registered offenders publicly available. See 2005 Tenn. Pub. Acts, ch. 316, § 1 (adding to events and information that must be reported and increasing administrative fees); 2006 Tenn. Pub. Acts, ch. 890, § 20 (forbidding registrants whose victims were minors from living, obtaining sexual offender treatment, or working within 1, 000 feet of a school, day care center, public park, playground, recreation center, or public athletic field available for use by the general public); 2007 Tenn. Pub. Acts, ch. 126, § 1 (adding to events triggering a 48-hour reporting obligation); 2007 Tenn. Pub. Acts, ch. 531, § 1 (making public all registrants' information, regardless of date of offense); 2008 Tenn. Pub. Acts, ch. 979, § 1 (adding information required to be reported and making information, including registrant e-mail addresses, available to qualifying businesses); 2008 Tenn. Pub. Acts, ch. 1164, § 13 (restricting employment permitted to registrants whose victims were minors and forbidding said registrants from wearing certain costumes-such as clowns or fictional characters-in the presence of minors); 2009 Tenn. Pub. Acts, ch. 597, § 1 (forbidding all registrants, regardless of age of victim, from the premises of school, day care center, public park, playground, recreation center, or public athletic field available for use by the general public if they have reason to believe children are present, or from standing or sitting idly within 1, 000 feet of such locations unless the registrant is responsible for a child or a “specific or legitimate reason” for their presence); 2010 Tenn. Pub. Acts, ch. 1138, §§ 7, 13 (increasing information required to be reported and requiring registrants to maintain and carry photo identification); 2010 Tenn. Pub. Acts, ch. 1145, § 1 (forbidding more than two registrants from living in the same residence); 2011 Tenn. Pub. Acts, ch. 266, § 1 (imposing reporting restrictions related to international travel); 2011 Tenn. Pub. Acts, ch. 287, § 1 (permitting public library directors to ban registrants from library premises); 2014 Tenn. Pub. Acts, ch. 992, § 1 (prohibiting registrants, regardless of age of victim, from living or working within 1, 000 feet of a school, day care center, public park, playground, recreation center, or public athletic field available for use by the general public); 2014 Tenn. Pub. Acts, ch. 751, § 1 (authorizing local governments to establish community notification systems designed to notify residents, schools, and child care facilities when a registrant lives within a certain distance); 2014 Tenn. Pub. Acts, ch. 770, §§ 1, 2 (imposing lifetime registration requirement on all offenders whose victims were twelve or younger); 2015 Tenn. Pub. Acts, ch. 516, § 1 (increasing information required to be reported and prohibiting registrants being alone with a minor in a “private area”).

         C. Effect of Registration on Doe #1

         Doe #1 was required to register as a sexual offender under the original version of SORMA and is now required, based on his original offense, to register as a violent sexual offender. (Doc. No. 1 at ¶ 24.) Accordingly, he is required to comply with the reporting, residence, travel, and employment restrictions imposed on violent sexual offenders under the Act on an ongoing basis. (Id.) Because SORMA originally granted confidentiality to registrants and, in subsequent amendments, retained that confidentiality for registrants whose offenses occurred before a certain date, knowledge of Doe #1's status was not easily accessible to the public until the Act was adopted in 2004. (Id.)

         In 2011, Doe #1 was living in one half of a duplex he owned in Davidson County, and his son and daughter-in-law were living with their children in the other half. Doe #1 was not permitted to reside with minors pursuant to Tenn. Code Ann. § 40-39-211(c), but he believed himself to be in compliance with that requirement because his minor grandchildren lived on the other side of the duplex and the arrangement had continued with the knowledge of local authorities. (Doc. No. 1 at ¶ 28.) Doe #1 describes being forced to move out of his home on forty-five minutes' notice due to a threat of arrest and prosecution by the Metropolitan Nashville Police Department (“MNPD”) and the office of the Davidson County District Attorney General (“DA's Office”). (Id.) Doe #1 offered to seal any interior connecting passages between the two sides of the duplex, but the DA's Office maintained that he would still not be in compliance. (Id. at ¶ 31.) To avoid prosecution, Doe #1 moved into a building in an industrial park that he owned. (Id. at ¶ 32.) Doe #1 eventually filed an action for declaratory judgment against the Tennessee Attorney General and State of Tennessee in Davidson County Criminal Court, seeking to vindicate his right to live in the duplex while his minor grandchildren lived on the other side. (Id. at ¶ 33.) Doe #1 also challenged the position, taken by MNPD, that he could not have overnight visitations with his own minor children without violating the prohibition on his residing with them. (Id.)

         Following an evidentiary hearing, the Honorable Seth Norman granted judgment in favor of Doe #1, concluding that the Act's residence restrictions were unconstitutionally vague as applied to his residence in the duplex and overnight visitation with his children. (Doc. No. 1-1 at 7.) Judge Norman noted that Doe #1 and his grandchildren had resided on their respective sides of the duplex for years with the full knowledge of MNPD, and that an MNPD detective had told Doe #1 that the arrangement was permissible, only for another MNPD detective to threaten Doe #1 with arrest under an alternate interpretation of the same statutory language. (Id. at 5.) Though not necessary to the court's vagueness holding, the court also concluded that the Act, as applied to Doe #1, “appear[ed] to have a punitive effect” for the purpose of a challenge under the Constitution's Ex Post Facto Clause, U.S. Const., Art. I, § 10, cl. 1. (Id.) The State of Tennessee did not appeal the judgment in Doe #1's favor. (Doc. No. 1 at ¶ 33.)

         On March 31, 2016, Doe #1 faced a deadline both to come to a designated MNPD office for his required quarterly report under the Act and to pay his required annual $150 fee. (Id. at ¶¶ 35-36.) He had attempted to pay the fee early in December of 2015, but MNPD refused to accept it. (Id. at ¶ 36.) He came to the designated MNPD office during its posted hours on Thursday, March 31, 2016, but found it closed. He tried again on Friday, April 1, 2016, but the office again was closed. (Id. at ¶¶ 38-39.) MNPD obtained a warrant for Doe #1's arrest for noncompliance with the Act, and Doe #1, facing two felony charges, turned himself in, posted bond, and obtained counsel. (Id. at ¶¶ 38-39.) Davidson County General Sessions Court dismissed the charges against Doe #1 for a lack of probable cause. (Id. at ¶ 39)

         Doe #1 has also identified some ways in which he is forced to restrict his ongoing behavior to conform to the Act. For example, if Doe's own child is at any school, child care facility, public park, playground, recreation center or public athletic field, Doe cannot enter the premises except to attend a conference with relevant officials, and only after receiving written permission or a request from the school's principal or facility's administrator, or to drop off or pick up the child at school, and only after notifying the school's principal or administrator that he is a registered sex offender. (Doc. No. 1 at ¶ 84 (citing Tenn. Code Ann. § 40-39-211(d)).) School officials often deny that permission, preventing Doe from taking part in activities such as parent-teacher conferences and school orientation. (Id. at ¶ 85.) He is also unable to attend his children's extracurricular events, even with permission of relevant administrators. (Id. at ¶ 86.)

         Doe #1 is a frequent international traveler, and the Act requires twenty-one days' notice of any international travel unless the registrant qualifies for one of two exceptions. Tenn. Code Ann. § 40-39-204(h). Although Doe, based on his allegations, appears potentially to qualify for one such exception-for routine, frequent travel for a legitimate purpose-he states that MNPD has declined to approve his requests and therefore he can only travel with less than twenty-one days' notice in the event of an emergency. (Doc. No. 1 at ¶ 92.) Some countries also bar his entry based on his registered sexual offender status. (Id. at ¶ 98.) Under a recently enacted federal law, the United States is obligated to disclose to a foreign country when a U.S. registered sexual offender is traveling to that country, which Doe #1 cites as likely to result in further denials of entry. (Id. at ¶ 99.)

         Doe #1 is also generally forbidden from knowingly “stand[ing]” or “sitting idly” within 1, 000 feet of “any building owned or operated by any public school, private or parochial school, licensed day care center, other child care facility, public park, playground, recreation center or public athletic field available for use by the general public in this state when children under eighteen (18) years of age are present, ” unless he has “a reason or relationship involving custody of or responsibility for a child or any other specific or legitimate reason for being there.” Tenn. Code Ann. § 40-39-211(d)(1)(B). The result, as Doe #1 describes it, is the establishment of sizable “Exclusion Zones” in which Doe #1 risks criminal liability for sitting or standing without an undefined “legitimate reason.” (Doc. No. ¶ 134.) Doe # 1 complains of the difficulty of knowing, mapping, and complying with the Exclusion Zones, which would require complete knowledge of the location of, inter alia, all day care centers, parks, and playgrounds, as well as their specific distance from other locations, in any neighborhood Doe #1 entered.

         Finally, of course, Doe #1 must comply with the core registration and reporting requirements of the Act, and he must do so by appearing in person to MNPD on at least a quarterly basis. (Doc. No. 1 at ¶¶ 70, 92.) He must also pay an annual $150 fee. (Id. at ¶ 35.) Doe notes, in particular, the potentially expansive nature of his reporting obligations related to his use of internet services. Doe #1 is required to provide TBI a “complete listing of the [his] electronic mail address information, including usernames, any social media accounts the offender uses or intends to use, instant message, other Internet communication platforms or devices, and the offender's username, screen name, or other method by which the offender accesses these accounts or web sites.” Tenn. Code Ann. § 40-39-203(i)(17). If he obtains a new such account, he must report it within three days. Tenn. Code Ann. § 40-39-203(a)(7). Doe #1 argues that the Act does not provide sufficient guidance with regard to which online accounts trigger his reporting requirements, and notes the large array of everyday online activities-such as paying bills or shopping online-that require the creation of an account and username. (Doc. No. 1 at ¶ 102.) To avoid an inadvertent violation, Doe #1 refrains from using the internet. (Id. at ¶ 103.)

         D. Effect of Registration on Doe #2

         Doe #2 is required to register as a sexual offender under the Act. (Case No. 3:17-cv-00264, Doc. No. 1 at ¶ 21.) Although Doe #2 is not classified as a violent sexual offender, the ongoing restrictions on his behavior are similar to those noted by Doe #1. He is required to periodically register in person, albeit annually rather than quarterly, and, despite his registration initially have been confidential, it is now available to the public. (Id. at ¶¶ 21-22) He also pays a $150 annual fee. (Id. at ¶ 23.) Doe #2 is subject to the same restrictions on internet use and travel. (Id. at ¶¶ 78- 89.) Like Doe #1, Doe #2 is required to comply with the Act's ban on sitting or standing idly in Exclusion Zones. (Id. at ¶ 113.)

         Doe #2 cannot live with his minor step-grandchildren. (Id. at ¶ 68.) He also must exit his house any time his own children have minor friends as visitors, unless another adult is present. Tenn. Code Ann. § 40-39-211(c), (k). (Case No. 3:17-cv-00264, Doc. No. 1 at ¶ 69.)

         After Doe #2's registry status was made public, he was fired by his employer when an angry former employee brought his registered sexual offender status to his employer's attention. His family's YMCA membership was terminated, and a cruise line excluded Doe #2 and his wife from a planned cruise trip. (Id. at ¶ 92.)

         Unlike Doe #1, Doe #2 no longer resides in a house that is exempt from the Act under its grandfather clause. (Id. at ¶¶ 74-75.) Although the Complaint provides limited information about his current home, that home presumably was selected in part due to its location in an area not prohibited by the Act, as any future home would also have to be. (Id. at ¶ 75.) The Complaint, however, does not identify a present or future intention or desire to relocate to a restricted area.

         E. Procedural History

         On November 8, 2016, Doe #1 filed this case seeking relief from various burdens of the Act, naming Governor Haslam and TBI Director Gwyn as defendants. “The governor is an elected official, invested with the supreme executive power of the state, among whose duties is the duty to ‘take care that the laws be faithfully executed.'” Tenn. Op. Att'y Gen. No. 11-42 (May 5, 2011) (citing Tenn. Const., Art. III, §§ 1, 2, 10). Under the Act, the TBI has various duties related to the administration and maintenance of the State's sexual offender registry and the dissemination of information therein. See Tenn. Code Ann. §§ 40-39-203(i), 40-39-204(a) & (d), 40-39-205(a) & (f), 40-39-206.

         Doe #1's Complaint pleads the following claims:

Count 1 pleads that Doe #1 has been retroactively made subject to the various restrictions of the Act in violation of the Ex Post Facto Clause, U.S. Constitution, Art. I, § 10, cl. 1 (Doc. No. 1 at ¶ 143);
Count 2 pleads that the Act violates Doe #1's fundamental right to travel under the Due Process Clause, U.S. Const. Amend. 14, § 1 (Id. at ¶¶ 144-47);
Count 3 pleads that the Act violates Doe #1's fundamental right to “engage in the common occupations of life” under the Due Process Clause (Id. at ¶¶ 148-52); • Count 4 pleads that the Act violates Doe #1's fundamental right to direct the upbringing of his children under the Due Process Clause (Id. at ¶¶ 153-56);
Count 5 pleads that the Act's restrictions and disclosure obligations regarding internet activity violate Doe #1's right to free speech under the First Amendment, U.S. Const. Amend. 1 (Id. at ¶¶ 157-59);
Count 6 pleads that the Act's retroactive application deprives Doe #1 of due process (Id. at ¶¶ 160-62);
• Count 7 pleads that the imposition of the Act amounts, effectively, to a repudiation of his original plea bargain in violation of due ...

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