Doe v. Nixon, 11-3112

• Decision Date: 10 May 2013
• Docket Number: No. 11-3112,No. 11-3213,No. 11-3114,11-3112,11-3114,11-3213
• Parties: Jane Doe, I; Jane Doe, II; John Doe, I; John Doe, II; John Doe, III; John Doe, IV Plaintiffs - Appellees v. Jeremiah W. Nixon, in his official capacity as Governor for the State of Missouri; Chris Koster, in his official capacity as Attorney General for the State of Missouri Defendants - Appellants Thomas O'Connor, in his official capacity as Chief of Police for the Maryland Heights, Missouri, Police Department; Robert P. McCulloch, in his official capacity as Prosecuting Attorney for St. Louis County, Missouri; Steven Kruse, in his official capacity as Chief of Police for the Bowling Green, Missouri, Police Department; Mark Fisher, in his official capacity as Prosecuting Attorney for Pike County, Missouri; Carl A. Kinnison, in his official capacity as Chief of Police for the Cape Girardeau, Missouri, Police Department; H. Morley Swingle, in his official capacity as Prosecuting Attorney for Cape Girardeau County, Missouri Defendants James Corwin, in his official capacity as Chief of Police for the Kansas City, Missouri, Police Department Defendant - Appellant Tim Fitch, in his official capacity as Chief of the St. Louis County, Missouri, Police Department; Robert Boydston, in his official capacity as Sheriff of Clay County, Missouri; Stephen Wayne Korte, in his official capacity as Sheriff of Pike County, Missouri; John Jordan, in his official capacity as Sheriff of Cape Girardeau County, Missouri; Tim Walsh, in his official capacity as Chief of Police for the Manchester, Missouri, Police Department Defendants Ronald K. Replogle, in his official capacity as Superintendent of the Missouri Highway Patrol Defendant - Appellant Jane Doe, I; Jane Doe, II; John Doe, I; John Doe, II; John Doe, III; John Doe, IV Plaintiffs - Appellees v. Jeremiah W. Nixon, in his official capacity as Governor for the State of Missouri; Chris Koster, in his official capacity as Attorney General for the State of Missouri; Thomas O'Connor, in his official capacity as Chief of Police for the Maryland Heights, Missouri, Police Department Defendants Robert P. McCulloch, in his official capacity as Prosecuting Attorney for St. Louis County, Missouri Defendant - Appellant Steven Kruse, in his official capacity as Chief of Police for the Bowling Green, Missouri, Police Department; Mark Fisher, in his official capacity as Prosecuting Attorney for Pike County, Missouri; Carl A. Kinnison, in his official capacity as Chief of Police for the Cape Girardeau, Missouri, Police Department; H. Morley Swingle, in his official capacity as Prosecuting Attorney for Cape Girardeau County, Missouri; James Corwin, in his official capacity as Chief of Police for the Kansas City, Missouri, Police Department Defendants Tim Fitch, in his official capacity as Chief of the St. Louis County, Missouri, Police Department Defendant - Appellant Robert Boydston, in his official capacity as Sheriff of Clay County, Missouri; Stephen Wayne Korte, in his official capacity as Sheriff of Pike County, Missouri; John Jordan, in his official capacity as Sheriff of Cape Girardeau County, Missouri; Tim Walsh, in his official capacity as Chief of Police for the Manchester, Missouri, Police Department; Ronald K. Replogle, in his official capacity as Superintendent of the Missouri Highway Patrol Defendants Jane Doe, I; Jane Doe, II; John Doe, I; John Doe, II; John Doe, III; John Doe, IV Plaintiffs - Appellants v. Jeremiah W. Nixon, in his official capacity as Governor for the State of Missouri; Chris Koster, in his official capacity as Attorney General for the State of Missouri; Thomas O'Connor, in his official capacity as Chief of Police for the Maryland Heights, Missouri, Police Department; Robert P. McCulloch, in his official capacity as Prosecuting Attorney for St. Louis County, Missouri; Steven Kruse, in his official capacity as Chief of Police for the Bowling Green, Missouri, Police Department; Mark Fisher, in his official capacity as Prosecuting Attorney for Pike County, Missouri; Carl A. Kinnison, in his official capacity as Chief of Police for the Cape Girardeau, Missouri, Police Department; H. Morley Swingle, in his official capacity as Prosecuting Attorney for Cape Girardeau County, Missouri; James Corwin, in his official capacity as Chief of Police for the Kansas City, Missouri, Police Department; Tim Fitch, in his official capacity as Chief of the St. Louis County, Missouri, Police Department; Robert Boydston, in his official capacity as Sheriff of Clay County, Missouri; John Jordan, in his official capacity as Sheriff of Cape Girardeau County, Missouri; Stephen Wayne Korte, in his official capacity as Sheriff of Pike County, Missouri; Tim Walsh, in his official capacity as Chief of Police for the Manchester, Missouri, Police Department; Ronald K. Replogle, in his official capacity as Superintendent of the Missouri Highway Patrol Defendants - Appellees
• Court: U.S. Court of Appeals — Eighth Circuit

Jane Doe, I; Jane Doe, II; John Doe, I; John Doe, II;

John Doe, III; John Doe, IV Plaintiffs - Appellees v. Jeremiah W. Nixon, in his official capacity as Governor for the State of Missouri;

Chris Koster, in his official capacity as Attorney

General for the State of Missouri Defendants - Appellants

Thomas O'Connor, in his official capacity as Chief of Police for the Maryland

Heights, Missouri, Police Department; Robert P. McCulloch, in his official

capacity as Prosecuting Attorney for St. Louis County, Missouri; Steven Kruse, in

his official capacity as Chief of Police for the Bowling Green, Missouri, Police

Department; Mark Fisher, in his official capacity as Prosecuting Attorney for Pike

County, Missouri; Carl A. Kinnison, in his official capacity as Chief of Police for

the Cape Girardeau, Missouri, Police Department; H. Morley Swingle, in his

official capacity as Prosecuting Attorney

for Cape Girardeau County, Missouri Defendants

James Corwin, in his official capacity as Chief of Police

for the Kansas City, Missouri, Police Department Defendant - Appellant

Tim Fitch, in his official capacity as Chief of the St. Louis County, Missouri,

Police Department; Robert Boydston, in his official capacity as Sheriff of Clay

County, Missouri; Stephen Wayne Korte, in his official capacity as Sheriff of Pike

County, Missouri; John Jordan, in his official capacity as Sheriff of Cape

Girardeau County, Missouri; Tim Walsh, in his official capacity as Chief of Police

for the Manchester, Missouri, Police Department Defendants

Ronald K. Replogle, in his official capacity as

Superintendent of the Missouri Highway Patrol Defendant - Appellant

Jane Doe, I; Jane Doe, II; John Doe, I; John Doe, II;

John Doe, III; John Doe, IV Plaintiffs - Appellees v. Jeremiah W. Nixon, in his official capacity as Governor for the State of Missouri;

Chris Koster, in his official capacity as Attorney General for the State of Missouri;

Thomas O'Connor, in his official capacity as Chief

of Police for the Maryland Heights, Missouri, Police Department Defendants

Robert P. McCulloch, in his official capacity as Prosecuting

Attorney for St. Louis County, Missouri Defendant - Appellant

Steven Kruse, in his official capacity as Chief of Police for the Bowling Green,

Missouri, Police Department; Mark Fisher, in his official capacity as Prosecuting

Attorney for Pike County, Missouri; Carl A. Kinnison, in his official capacity as

Chief of Police for the Cape Girardeau, Missouri, Police Department; H. Morley

Swingle, in his official capacity as Prosecuting Attorney for Cape Girardeau

County, Missouri; James Corwin, in his official capacity as Chief of Police for the

Kansas City, Missouri, Police Department Defendants

Tim Fitch, in his official capacity as Chief of the

St. Louis County, Missouri, Police Department Defendant - Appellant

Robert Boydston, in his official capacity as Sheriff of Clay County, Missouri;

Stephen Wayne Korte, in his official capacity as Sheriff of Pike County, Missouri;

John Jordan, in his official capacity as Sheriff of Cape Girardeau County,

Missouri; Tim Walsh, in his official capacity as Chief of Police for the Manchester,

Missouri, Police Department; Ronald K. Replogle, in his official capacity as

Superintendent of the Missouri Highway Patrol Defendants

Jane Doe, I; Jane Doe, II; John Doe, I; John Doe, II;

John Doe, III; John Doe, IV Plaintiffs - Appellants v. Jeremiah W. Nixon, in his official capacity as Governor for the State of Missouri;

Chris Koster, in his official capacity as Attorney General for the State of Missouri;

Thomas O'Connor, in his official capacity as Chief of Police for the Maryland

Heights, Missouri, Police Department; Robert P. McCulloch, in his official

capacity as Prosecuting Attorney for St. Louis County, Missouri; Steven Kruse, in

his official capacity as Chief of Police for the Bowling Green, Missouri, Police

Department; Mark Fisher, in his official capacity as Prosecuting Attorney for Pike

County, Missouri; Carl A. Kinnison, in his official capacity as Chief of Police for

the Cape Girardeau, Missouri, Police Department; H. Morley Swingle, in his

official capacity as Prosecuting Attorney for Cape Girardeau County, Missouri;

James Corwin, in his official capacity as Chief of Police for the Kansas City,

Missouri, Police Department; Tim Fitch, in his official capacity as Chief of the St.

Louis County, Missouri, Police Department; Robert Boydston, in his official

capacity as Sheriff of Clay County, Missouri; John Jordan, in his official capacity

as Sheriff of Cape Girardeau County, Missouri; Stephen Wayne Korte, in his

official capacity as Sheriff of Pike County, Missouri; Tim Walsh, in his official

capacity as Chief of Police for the Manchester, Missouri, Police Department;

Ronald K. Replogle, in his official capacity as

Superintendent of the Missouri Highway Patrol Defendants - Appellees

No. 11-3112

No. 11-3114

No. 11-3213

United States Court of Appeals for the Eighth Circuit

Submitted: November 16, 2012

Filed: May 10, 2013

Appeal from United States District Court

for the Eastern District of Missouri - St. Louis

Before RILEY, Chief Judge, WOLLMAN and MELLOY, Circuit Judges.

WOLLMAN, Circuit Judge.

Jeremiah W. Nixon, Chris Koster, James Corwin, and Colonel Ronald Replogle (the State Officials), and Colonel Tim Fitch and Robert P. McCulloch (the St. Louis County Officials) appeal the district court's August 25, 2011, order granting in part the plaintiffs' motion for attorneys' fees and granting the plaintiffs' motion to alter or amend the judgment to reflect the grant of attorneys' fees and costs. Jane Doe I, Jane Doe II, John Doe I, John Doe II, John Doe III, and John Doe IV (the Does) appeal thedistrict court's October 27, 2010, order dismissing the Does' claims as moot¹ and the district court's August 25, 2011, order to the extent it reduced the requested award of attorneys' fees. We affirm in part and reverse in part.

I. BACKGROUND

Each of the Does was convicted of an offense for which he or she is required to register as a sex offender in Missouri. Each of the Does' convictions occurred prior to June 30, 2008, when the Missouri Legislature enacted Missouri Revised Statute § 589.426 (the Halloween statute). The Halloween statute provides:

1. Any person required to register as a sexual offender under sections 589.400 to 589.425 shall be required on October thirty-first of each year to:

(1) Avoid all Halloween-related contact with children;

(2) Remain inside his or her residence between the hours of 5 p.m. and 10:30 p.m. unless required to be elsewhere for just cause, including but not limited to employment or medical emergencies;

(3) Post a sign at his or her residence stating, "No candy or treats at this residence"; and

(4) Leave all outside residential lighting off during the evening hours after 5 p.m.

2. Any person required to register as a sexual offender under sections 589.400 to 589.425 who violates the provisions of subsection 1 of this section shall be guilty of a class A misdemeanor.

Mo. Rev. Stat. § 589.426.

On October 3, 2008, the Does² filed an initial complaint against the Governor and Attorney General of Missouri, as well as several county prosecutors and chiefs of police, in their official capacities, alleging that the Halloween statute violated various provisions of the United States Constitution and the Missouri Constitution.³ The Does sought declaratory and injunctive relief under 28 U.S.C. § 2201 and 42 U.S.C. § 1983, as well as attorneys' fees and costs under 42 U.S.C. § 1988.

The Does filed a motion for preliminary injunction with their complaint, requesting that the Officials be prohibited from enforcing the Halloween statute on October 31, 2008. The motion was fully briefed, and a hearing was held on October 27, 2008. That same day, the district court issued an order granting the Does' motion for a preliminary injunction. Citing the four factors outlined in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981), the district court concluded that the Does had carried their burden on all four factors and specifically indicated that the Does demonstrated a strong likelihood of success on the merits of their federal due process claim. See D. Ct. Order of Oct. 27, 2008, 1-2.

Several of the Officials appealed the district court's grant of the preliminary injunction and moved to have the order stayed pending the appeal. On October 30, 2008, this court granted the Officials' motion to stay the preliminary injunction without discussion, thus enabling the Officials to enforce the Halloween statute if necessary. Three days later, the Does moved to dismiss the Officials' appeal as moot,noting that the preliminary injunction was effective on October 31, 2008, only and had since expired of its own terms. We granted the Does' motion and dismissed the appeal.

The Does subsequently filed their first and second amended complaints, which also sought nominal damages, as well as a second motion for preliminary injunction. At the time the Does filed their second motion for preliminary injunction, there was litigation pending in the Missouri courts regarding an individual named Charles Raynor, who was charged with violating the Halloween statute on October 31, 2008. Raynor was a registered sex offender, whose conviction was entered prior to the Halloween statute's enactment. A Missouri circuit court dismissed the charge against Raynor, concluding that it violated the Missouri Constitution's prohibition on retrospective laws. Thereafter, the State of Missouri appealed the order dismissing the charges against Raynor to the Missouri Supreme Court, where it was consolidated with another case. See F.R. v. St. Charles Cnty. Sheriff's Dept., 301 S.W.3d 56 (Mo. 2010).

Several of the Officials moved the district court to stay the Does' action under the Pullman doctrine⁴ until the Missouri Supreme Court rendered its decision in F.R. The district court granted the motion to stay on September 25,...