Doe v. Lee
| Citation | 609 F.Supp.3d 578 |
| Decision Date | 16 June 2022 |
| Docket Number | 3:22-cv-00338 |
| Parties | John DOE #11, Plaintiff, v. William B. LEE, et al., Defendants. |
| Court | United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee |
Edward M. Yarbrough, Walter Justin Adams, Bone, McAllester & Norton, PLLC, Nashville, TN, Jonathan P. Farmer, Spencer Fane LLP, Nashville, TN, for Plaintiff.
Cody N. Brandon, Office of the Attorney General and Reporter, Nashville, TN, Miranda H. Jones, Robert W. Mitchell, Tennessee Attorney General's Office, Nashville, TN, for Defendants.
The Tennessee Sexual Offender and Violent Sexual Offender Registration, Verification and Tracking Act of 2004 ("SORA" or the "Act"), Tenn. Code Ann. §§ 40-39-201 to -218, requires an individual convicted of a qualifying offense ("Registrant") to register for inclusion in a database maintained by the Tennessee Bureau of Investigation ("TBI"). Under SORA, a Registrant is subject to a number of requirements. Chief among them, a Registrant is prohibited from residing or working within 1,000 feet of many common facilities where children are likely to be present, including schools, day care centers, and public parks and athletic fields. Id. § 40-39-211(a). The Registrant must also report in person to a designated law enforcement agency at prescribed intervals, id. § 40-39-204(b), (c), including within forty-eight hours of certain triggering events, such as a change of residence or employment, id. § 40-39-203(a). And the Registrant's status as a sexual offender, along with a laundry list of information about the individual, is made publicly available. Id. § 40-39-206(d). A violation of the Act's requirements is a Class E felony. Id. §§ 40-39-208(b), 40-39-211(f).
Several years ago, the Sixth Circuit concluded that Michigan's Sex Offender Registration Act—which similarly restricts registered offenders from living, working, or "loitering" within 1,000 feet of a school, and requires all registrants to appear in person "immediately" to update information such as new vehicles or "internet identifiers"—violates the U.S. Constitution's Ex Post Facto Clause to the extent that it punishes persons for offenses committed before the statute's enactment. Does #1–5 v. Snyder , 834 F.3d 696 (6th Cir. 2016).
Due to the obvious similarities between the Michigan statute and Tennessee's Act, Snyder unleashed a flood of litigation regarding the constitutionality of Tennessee's SORA under the Ex Post Facto Clause. See, e.g., Jordan v. Lee , No. 19-cv-00907, 2022 WL 1196980 (M.D. Tenn. Apr. 21, 2022) (Trauger, J.); Reid v. Lee , 597 F.Supp.3d 1177 (M.D. Tenn. Apr. 7, 2022) (Trauger, J.) (" Reid II "); Does #1–9 v. Lee , 574 F.Supp.3d 558 (M.D. Tenn. Dec. 3, 2021) (Trauger, J.); Doe v. Lee , No. 21-cv-00028, 2021 WL 1907813 (M.D. Tenn. May 12, 2021) (Trauger, J.); Doe #1 v. Lee , 518 F. Supp. 3d 1157 (M.D. Tenn. 2021) (Richardson, J.); Jackson v. Rausch , No. 19-cv-377, 2020 WL 7496528 (E.D. Tenn. Dec. 21, 2020) (Jordan, J.); Reid v. Lee , 476 F. Supp. 3d 684 (M.D. Tenn. 2020) (Trauger, J.) (" Reid I "); Doe v. Rausch , 461 F. Supp. 3d 747 (E.D. Tenn. 2020) (Reeves, C.J.); Doe v. Rausch , 382 F. Supp. 3d 783 (E.D. Tenn. 2019) (Phillips, J.).
In this case, Plaintiff John Doe #11,1 a Registrant due to a 2002 conviction for second-degree criminal sexual conduct committed against his 14-year-old stepchild, alleges that subjecting him to SORA's requirements violates the Ex Post Facto Clause.2 Pending before the Court is Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction (Doc. No. 12, the "Motion"), to which Defendants—Governor William B. Lee and TBI Director David B. Rausch (collectively, "Defendants")—have filed a joint Response (Doc. No. 23), and Plaintiff has filed a Reply (Doc. No. 25). For the reasons that follow, Plaintiff's Motion will be GRANTED IN PART and DENIED IN PART .3
This Court has previously provided a detailed account of the history of Tennessee's adoption and amendment of its sexual offender registration statutes. See Doe #1 , 518 F. Supp. 3d at 1167–70 ; see also Reid II , 597 F.Supp.3d at 1180-87 (). The Court will not provide that full history here,vf but instead will provide only the details necessary to understand the instant dispute.
Tennessee did not have a sex offender registration law prior to 1994.4 In that year, Tennessee enacted the predecessor statute to the current SORA, known as the Sexual Offender Registration and Monitoring Act ("SORMA"). 1994 Tenn. Pub. Acts, ch. 976. SORMA required any individual convicted of a qualifying offense ("SORMA registrant") to register with the TBI within ten days of release without supervision from probation, parole, or incarceration. Id. § 4. SORMA did not require in-person registration or reporting; instead, SORMA registrants were required to register and periodically update their information with the TBI by completing and returning paper forms. Id. §§ 4, 5. The information in the SORMA registry was expressly designated as confidential, with the exception that the 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).
In the decade that followed, the General Assembly repeatedly amended SORMA to expand its scope, increase its reporting requirements, and reduce the level of confidentiality of registry information. For example, in 1997, the General Assembly amended SORMA to provide that, for all qualifying offenses committed on or after July 1, 1997, certain information concerning a SORMA Registrant "shall be considered public information" and made available online by the TBI. 1997 Pub. Acts, ch. 461, § 2. However, until 2003, SORMA did not expressly restrict where a SORMA registrant could live, work, or travel. In 2003, the General Assembly enacted legislation prohibiting a SORMA registrant from knowingly: (i) establishing a residence or accepting employment within 1,000 feet of a school, a child care facility, or the home of the SORMA Registrant's victim or the victim's immediate family member; (ii) coming within 100 feet of the victim; (iii) establishing a residence or other living accommodation with a minor who was not the SORMA registrant's own child; or (iv) establishing a residence with the SORMA registrant's own minor child, if any child of the SORMA registrant had been the SORMA registrant's victim or if the SORMA registrant's parental rights had been or were being terminated. 2003 Tenn. Pub. Acts, ch. 95, § 1.
In 2004, the Tennessee General Assembly repealed SORMA and replaced it with SORA, which remains, in amended form, in effect today. 2004 Tenn. Pub. Acts, ch. 921.5 The Act's major requirements can be classified in five categories:
1. Providing and updating information. A Registrant must provide a laundry list of information under penalty of perjury, including (but not limited to) the Registrant's name, address, date and place of birth, social security number, information about the Registrant's offense(s) of conviction, copies of the Registrant's driver license and passports, and a "complete listing of the [Registrant]’s electronic mail address information, including usernames, any social media accounts the [Registrant] uses or intends to use, instant message, other internet communication platforms or devices, and the [Registrant]’s username, screen name, or other method by which the [Registrant] accesses these accounts or websites." See Tenn. Code Ann. § 40-39-203(i). In contrast to SORMA's system of TBI-propagated forms, the Act requires a Registrant to register in person with the designated law enforcement agency. Id. § 40-39-203(a), (c). The Registrant must report in person with the appropriate law enforcement agency within 48 hours of "establishing or changing a primary or secondary residence, establishing a physical presence at a particular location, becoming employed or practicing a vocation or becoming a student in this state." Id. § 40-39-203(a)(1). A Registrant must also report within 48 hours any "change in any other information given to the registering agency by the [Registrant] that is contained on the registration form," or any "material change in employment or vocation status." Id. § 40-39-203(a)(4), (a)(6). The Registrant has "three (3) days, excluding holidays" to report any change in his "electronic mail address information, any instant message, chat or other internet communication name." Id. § 40-39-203(a)(7). The Act also requires that the Registrant's DNA sample be taken and sent to the TBI. Id. § 40-39-203(n).
2. Periodic in-person reporting. Under the Act, each Registrant is classified as either a "violent sexual offender" or a "sexual offender," depending on the Registrant's offense(s) of conviction.6 Compare id. § 40-39-202(31) (listing "violent sexual offenses"), with id. § 40-39-202(20) (listing "sexual offenses"). A Registrant classified as a violent sexual offender must report in person to the designated law enforcement agency four times per year (once in March, June, September, and December of each calendar year) to update the Registrant's fingerprints, palm prints, and photograph, and to verify the continued accuracy of the information in the registry. Id. § 40-39-204(b)(1). A Registrant classified as a sexual offender must report in person for these same purposes once a year. Id. § 40-39-204(c).7
3. Residence and work restrictions. A Registrant may not "knowingly establish a primary or secondary residence or any other living accommodation or knowingly accept employment within one thousand feet (1,000’) of the property line of any public school, private or parochial school, licensed day care center, other child care facility, public park, playground, recreation center, or public...
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