Doe v. Caldwell, Civil Action No. 12–1670.

• Citation: 913 F.Supp.2d 262
• Decision Date: 20 December 2012
• Docket Number: Civil Action No. 12–1670.
• Parties: Emma DOE, et al. v. James CALDWELL, et al.
• Court: U.S. District Court — Eastern District of Louisiana

913 F.Supp.2d 262

Emma DOE, et al.

v.James CALDWELL, et al.

Civil Action No. 12–1670.

United States District Court,

E.D. Louisiana.

Dec. 20, 2012.

Recognized as Unconstitutional

LSA–R.S. 15:542(A)(1)(a)

William Patrick Quigley, Davida Finger, Loyola Law School Clinic, Nikki D. Thanos, Nikki Thanos, Attorney at Law, New Orleans, LA, Alexis Agathocleous, Center for Constitutional Rights, New York, NY, Andrea J. Ritchie, Andrea J. Ritchie, Attorney at Law, Brooklyn, NY, David Rudovsky, Jonathan Feinberg, Kairys, Rudovsky, Messing & Feinberg LLP, Seth Kreimer, Seth Kreimer, Attorney at Law, Philadelphia, PA, for Emma Doe, Brenda Doe, Ruth Doe on their own Behalf and on behalf of all others Similarly Situated.

Phyllis Esther Glazer, Michael Courtney Keller, Louisiana Department of Justice, New Orleans, LA, for James D. Caldwell, James M. Leblanc, Michael D. Edmondson, Charles Dupuy, Eugenie C. Powers, Barry Matheny, Stephen Campbell.

ORDER AND REASONS

MARTIN L.C. FELDMAN, District Judge.

Before the Court are three motions: (1) the defendants' motion to dismiss; (2) the plaintiffs' motion for class certification; and (3) the plaintiffs' motion for summary judgment. For the reasons that follow, the defendants' motion to dismiss is DENIED and the plaintiffs' motions for class certification and summary judgment are continued, to be reset because of inadequate briefing.

Background

This putative class action lawsuit follows this Court's March 29, 2012 ruling in Doe v. Jindal, 851 F.Supp.2d 995 (E.D.La.2012), in which the Court declared that Louisiana's sex offender registry law, which mandates sex offender registration by individuals convicted of violating the State's Crime Against Nature by Solicitation statute, but not those convicted for the identical sexual conduct under the Prostitution statute, deprived individuals of Equal Protection of the laws; the nine plaintiffs in Doe I have since been relieved by the State of their sex offender registration obligations. In this new lawsuit, the plaintiffs and proposed class members now challenge the requirement that, notwithstandingDoe I, the State claims to be without the authority to act and they continue to face mandatory sex offender registration as a result of their convictions for Crime Against Nature by Solicitation.

The facts underlying the Equal Protection challenge advanced in Doe I are more completely set forth in that opinion. 851 F.Supp.2d 995 (E.D.La.2012). ¹ The Judgment, which was entered on April 11, 2012, provides in part:

IT IS HEREBY DECLARED, ORDERED, ADJUDGED AND DECREED that:

1. The application of the Registration of Sex Offenders, Sexually Violent Predators, and Child Predators law (Registry Law), La.R.S. § 15:540 et seq., to those convicted of Crime Against Nature by Solicitation under La.R.S. § 14:89(A)(2) or La.R.S. § 14:89.2(A), and their inclusion on the State Sex Offender & Child Predator Registry (SOCPR) pursuant to La.R.S. § 15:542, deprives them of equal protection of the laws in violation of the Fourteenth Amendment of the United States Constitution;

2. Defendants must cease and desist from placing any individuals convicted of Crime Against Nature by Solicitation under La.R.S. § 14:89(A)(2) or La.R.S. § 14:89.2(A) on the SOCPR;

3. This Judgment and Order does not apply to La.R.S. § 14:89.2(C);

4. Defendants LeBlanc and Edmonson, in their official capacities must remove Plaintiffs from the SOCPR within thirty (30) days of the entry of this Judgment and Order, following the procedures laid out in paragraph 4 of the Protective Order ...;

5. Defendants in their official capacities, and all persons under the control or supervision of Defendants, are permanently enjoined from disclosing Plaintiffs' prior inclusion on the SOCPR, and must remove Plaintiffs from any and all municipal, city and state databases which indicate that Plaintiffs were included on the SOCPR within thirty (30) days of the entry of this Judgment and Order;

6. Defendants LeBlanc and Edmonson, in their official capacities, must notify all ... agencies that have been provided within information about Plaintiffs' inclusion on the SOCPR ... of Plaintiffs' removal from the SOCPR and inform such agencies that Plaintiffs are no longer subject to the Registry Law withinthirty (30) days of the entry of this Judgment and Order;

7. Defendant Gautreaux, in his official capacity, must provide Plaintiffs with new driver's licenses ... without the words “Sex Offender,” at no cost to Plaintiffs, within thirty (30) days of the entry of this Judgment and Order;

8. Counsel for Defendants shall provide this Court and counsel for Plaintiffs with a written report regarding their implementation of paragraphs 4, 5, 6 and 7 of this Judgment and Order within thirty (30) days of entry of this Judgment and Order;

9. This Judgment and Order is entered contingent upon Defendants' Stipulation waiving appeal of this Judgment and Order and this Court's Order and Reasons dated March 29, 2012 ...;

10. Costs and fees shall be awarded by the Court upon application by Plaintiffs....

11. This Court shall retain jurisdiction over this matter for 90 days after entry of this Judgment and Order to monitor and enforce compliance with this Judgment and Order.

In response to the Court's Judgment, some six weeks later, the Louisiana legislature enacted into law on May 31, 2012 Act 402 of the 2012 Legislative Session.² Act 402, which amends La.R.S. § 15:542 provides:

...

F.

...

(4)(a) Any person who was convicted of crime against nature (R.S. 14:89) prior to August 15, 2010, may file a motion in the court of conviction to be relieved of the sex offender registration and notification requirements of this Chapter if the offense for which the offender was convicted would be defined as crime against nature by solicitation (R.S. 14:89.2) had the offender been convicted on or after August 15, 2010. Offenders convicted of an offense under the laws of another state, or military, territorial, foreign, tribal, or federal law may file a motion in the district court of his parish of residence once the administrative procedures of R.S. 15:542.1.3 have been exhausted and the elements of the offense of conviction have been found to be equivalent to the current definition of crime against nature by solicitation (R.S. 14:89.2). The provisions of this Subparagraph shall not apply to persons whose conviction for crime against nature pursuant to R.S. 14:89 involved the solicitation of a person under the age of seventeen and would authorize sentencing of the offender pursuant to R.S. 14:89.2(B)(3), had the offender been convicted on or after August 15, 2010.

(b) The motion shall be accompanied by supporting documentation to establish that the person was convicted of crime against nature prior to August 15, 2010, and that the offense for which the offender was convicted would be defined as crime against nature by solicitation (R.S. 14:89.2) had the offender been convicted on or after August 15, 2010.

(c) The district attorney, office of state of police, and the Department of Justice, shall be served with a copy of the motion.

(d) If the supporting documentation described in Subparagraph (b) of this Paragraph is provided and meets the requirements of Subparagraph (4)(b), relief shall be granted unless the district attorney objects and provides supportingdocumentation proving that the offense for which the person was convicted, and which requires registration and notification pursuant to the provisions of this Chapter, involved the solicitation of a person under the age of seventeen.

(e) If the district attorney proves by clear and convincing evidence that the conviction for crime against nature pursuant to R.S. 14:89 involved the solicitation of a person under the age of seventeen, the court shall deny the motion to be relieved of the sex offender registration and notification requirements as provided by the provisions of this Paragraph.

(f) The provisions of this Paragraph shall not apply to any person who was convicted of one or more offenses which otherwise require registration pursuant to the provisions of this Chapter.

La.R.S. 15:541(F)(4) (2012) (as amended by Act 402). Accordingly, under Act 402, a person convicted of Crime Against Nature by Solicitation may petition a state court for an order removing him or her from the state registry and relieving that person from any registration obligations. This remedy is not self-executing; rather, it requires the registrant to file papers in a local court and to prove entitlement to relief, and for the court to grant relief.

Less than one month after Act 402 became law, four plaintiffs,³ proceeding pseudonymously, on their behalf and on behalf of others similarly situated,⁴ sued the defendants in their official capacities under 42 U.S.C. § 1983 in this Court. These plaintiffs allege that they and the class they seek to represent are identically situated to the prevailing plaintiffs in Doe I.⁵ As in Doe I, plaintiffs here have sued James D. Caldwell, Attorney General of the State of Louisiana; James M. Leblanc, Secretary, Louisiana Department of Public Safety and Correction; Michael Edmondson, Superintendent, Louisiana State Police; Charles Dupuy, Deputy Superintendent, Louisiana State Police; Eugenie C. Powers, Director, Division of Probation and Parole, Louisiana Department of Public Safety and Corrections; Barry Matheny, Assistant Director, Division of Probation and Parole, Louisiana Department of Public Safety and Corrections; and Stephen Campbell, Commissioner, Office of Motor Vehicles; each defendant is sued in his or her official capacity.⁶ Plaintiffs allege that:

The[se] defendants, by continuing to require plaintiffs and all other individuals similarly situated to register as sex offenders, are violating the rights guaranteed to the named plaintiffs and the plaintiff class under the Fourteenth Amendment to the United States Constitution. Plaintiffs seek a judgment declaring...