Doe v. Bredesen

• Decision Date: 16 November 2007
• Docket Number: No. 06-6393.,06-6393.
• Citation: 507 F.3d 998
• Parties: John DOE, v. Phil BREDESEN, Governor of the State of Tennessee, Charles M. Traughber, Chairman, Tennessee Board of Probation and Parole, Mark Gwyn, Director of the Tennessee Bureau of Investigation, and Randall Nichols, District Attorney General 6th Judicial District, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

507 F.3d 998 John DOE,
v.
Phil BREDESEN, Governor of the State of Tennessee, Charles M. Traughber, Chairman, Tennessee Board of Probation and Parole, Mark Gwyn, Director of the Tennessee Bureau of Investigation, and Randall Nichols, District Attorney General 6th Judicial District, Defendants-Appellees. No. 06-6393. United States Court of Appeals, Sixth Circuit. Submitted: July 25, 2007. Decided and Filed: November 16, 2007.

[507 F.3d 999]

ON BRIEF: Angela R. Morelock, Knoxville, Tennessee, for Appellant. Michael A. Meyer, Lyndsay Fuller, Office of the Attorney General, Nashville, Tennessee, for Appellees.

Before KEITH and GRIFFIN, Circuit Judges; VAN TATENHOVE, District Judge.^*

GRIFFIN, J., delivered the opinion of the court, in which VAN TATENHOVE, D.J., joined. KEITH, J. (pp. 1008-12), delivered a separate opinion concurring in part and dissenting in part.

[507 F.3d 1000]

OPINION

GRIFFIN, Circuit Judge.

Plaintiff-appellant John Doe pleaded guilty in the Criminal Court of Knox County, Tennessee, to attempted aggravated kidnapping in violation of TENN.CODE ANN. §§ 39-12-101 and 31-13-304, and two counts of sexual battery by an authority figure in violation of TENN.CODE ANN. § 39-13-527. After Doe was convicted and sentenced, the Tennessee Legislature enacted the Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act of 2004 ("the Registration Act"), TENN.CODE ANN. § 40-39-201 et seq., which became effective on August 1, 2004. The Registration Act reclassified Doe as a violent sexual offender, see TENN. CODE ANN. § 40-39-202(24)(j), and required him to comply with the requirements of the Tennessee Bureau of Investigation ("TBI") Sexual Offender Registry for the rest of his life, see TENN.CODE ANN. § 40-39-207(g)(1)(B). The Tennessee Legislature also enacted the Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act ("the Monitoring Act"), TENN.CODE ANN. § 40-39-301 et seq., which became effective July 1, 2004.¹ The Monitoring Act authorized the Tennessee Board of Probation and Parole ("the board") to subject a convicted sexual offender to a satellite-based monitoring program for the duration of his probation. TENN.CODE ANN. § 40-39-303. In August 2005, Doe's probation officer notified him that he would be required to wear a global positioning ("GPS") device at all times beginning in September 2005.

Doe brought suit in the United States District Court for the Eastern District of Tennessee ("the district court") alleging that because he was convicted before the effective date of the Registration and Monitoring Acts, the application of the Acts' requirements to him violated the Ex Post Facto Clauses of the United States Constitution (Article I, Section 3, Clause 3) and the Tennessee Constitution, as well as his right to procedural due process and his right against self-incrimination under the Fifth Amendment of the U.S. Constitution, and his right to privacy under both constitutions. The government moved to dismiss the complaint under FED.R.CIV.P. 12(b)(6) for failure to state a claim on which relief could be granted, and Doe filed an opposition brief that supported only the Ex Post Facto claims. Doe's opposition brief also sought to raise a claim that was not in his complaint — that application of the Registration and Monitoring Acts to him violated his plea agreement.

The district court ruled that Doe's ex post facto claims were meritless, the government had not breached the plea agreement, and Doe had abandoned his other claims. The district court dismissed the complaint, and Doe timely appealed. For the reasons that follow, we affirm. In doing so, we hold, inter alia, that the Registration Act (TENN.CODE ANN. § 40-39-201 et seq.) and the Monitoring Act (TENN.CODE ANN. 40-39-301 et seq.) do not violate the Ex Post Facto Clause of the United States Constitution.

I.

Between January 1, 1995, and July 1, 2004, Doe pleaded guilty in the Criminal Court of Knox County, Tennessee, to attempted aggravated kidnapping in violation of TENN.CODE ANN. §§ 39-12-101 and 31-13-304, and two counts of sexual battery

507 F.3d 1001

by an authority figure in violation of TENN.CODE ANN. § 39-13-527. At the time Doe was convicted, each of his sexual battery offenses was termed by Tennessee law as a "sexual offense" and he was classified as a "sexual offender." Under Tennessee law, as it existed at the time of his convictions, Doe had the right, ten years after the termination of his probation, to petition the circuit court to relieve him of the continued filing of registration and monitoring forms and to expunge all data stored in the central record system about him.

Since being placed on probation, Doe met the sexual offender registration and monitoring requirements that were imposed on him by former TENN.CODE ANN. § 40-39-103, which has now been repealed.

The Registration Act, TENN.CODE ANN. § 40-39-201 et seq., became effective on August 1, 2004, and repealed the prior Sexual Offender Act, which had been codified at TENN.CODE ANN. §§ 40-39-101 through 40-39-111.² Among other provisions, the Registration Act repealed and replaced the sexual offender classification system which had been found at former TENN.CODE ANN. § 40-39-301(1) and (3).

Under the new TENN.CODE ANN. § 40-39-202(23) and (24), Doe's criminal offense was retroactively reclassified as a "violent sexual offense," and he was reclassified retroactively as a "violent sexual offender." See TENN.CODE ANN. § 40-39-301(3) ("`Violent sexual offender' also includes any person who has been released on probation or parole following any conviction for a sexual offense, as defined in subdivision (2), to the extent that the person continues to be subject to active supervision by the board of probation and parole as defined in law."); TENN.CODE ANN. § 40-39-301(2)(A)(xi) (defining "sexual offense" to include sexual battery by an authority figure in violation of TENN.CODE ANN. § 39-13-527).

Additionally, revised TENN.CODE ANN. § 40-39-207(f)(1)(B) requires a violent sexual offender to comply with the registration, verification, and tracking requirements of the TBI Sexual Offender Registry ("SOR") for the rest of his life.³ Further, the Monitoring Act requires the TBI to implement continuous satellite-based monitoring of violent sexual offenders. TENN.CODE ANN. §§ 40-39-302(b)(1) and 303. The Monitoring Act specifically authorizes the TBI to use a global positioning system ("GPS") with either passive (once-a-day) reporting of the offender's location or active (near-real-time) reporting of the offender's prescriptive or proscriptive location and schedule requirements, see TENN.CODE ANN. § 40-39-302(b)(1)(A and B), and it authorizes the board of probation and parole to charge the offender a fee to recoup the cost of the monitoring program. TENN.CODE ANN. § 40-39-305. The Monitoring Act authorizes the board of probation and parole to exercise discretion as to which parolees or probationers will be subject to these various requirements. TENN.CODE ANN. § 40-39-303(a).

507 F.3d 1002

An offender commits a Class E felony if he knowingly fails to comply with any of the Acts' requirements, such as filing a timely and accurate registration form with the TBI, signing the form, paying annual administrative costs if able to do so, and timely disclosing required information to a designated law enforcement agency. TENN.CODE ANN. § 40-39-208(a) and (b). Also, it is a separate crime to tamper with or remove the GPS tracking device. TENN. CODE ANN. § 40-39-304.⁴

Doe alleges that the GPS tracking device is not realistically concealable, and he contends that it has a marked effect on his lifestyle and freedom of movement and action. In Doe's words, he

is required to carry with him at all times when not at his residence a relatively large box which contains the electronics necessary for the monitoring to take place. This box must be worn on one's person outside any coat or other outer garment and therefore is obvious to any onlooker. Upon going into a building, [he] must wait several minutes before entering, presumably to allow the device to reset. When inside a building, [he] must go outside at least once every hour so that monitoring can take place. The device is not waterproof, and [he] is not allowed to swim or participate in any other water activity. Baths at home are impossible.

Furthermore, the device has caused [him] added stress and many inconveniences as it does not always work properly. While on vacation, for which [he] obtained prior permission from his probation officer and a judge, [he] received at least six telephone messages from someone at the probation office threatening him with immediate arrest if he did not return a telephone call to the probation office at once. This entire event was because the Global Positioning System monitoring system could not locate him. At other times the [GPS] monitoring system either does not receive or transmit information correctly. When this happens [he] has spent up to an hour on the telephone with someone in the probation office to correct the problem. On one occasion [he] had to stand in the rain, for over thirty minutes, for all his neighbors to see, while the probation office attempted to fix the problem. Appellant is required to purchase the device at a cost of $50.00.

Doe filed a complaint and application for a temporary restraining order ("TRO") and preliminary injunction ("PI") in March 2006, and the government filed a brief in opposition to the TRO and PI and a motion to dismiss the complaint in April 2006. The district court granted the government's motion to dismiss the complaint, and Doe timely appealed.

II.

Because the district court dismissed Doe's complaint on legal grounds, we review its decision de novo. United States v. Bowman 173 F.3d 595, 597 (6th Cir.1999) ("This Court reviews a denial of a motion to dismiss de novo, as it is a purely legal question.")...