Doe v. Pryor

Decision Date16 August 1999
Docket NumberNo. Civ.A. 99-T-730-N.,Civ.A. 99-T-730-N.
Citation61 F.Supp.2d 1224
PartiesJohn DOE, Plaintiff, v. Bill PRYOR, et al., Defendants.
CourtU.S. District Court — Middle District of Alabama

Kyla L. Groff, Alec Brown & Associates, P.C., Alexander City, AL, David A. Gespass, Gespass & Johnson, Birmingham, AL, Scott A. Boykin, Birmingham, AL, Shannon L. Holliday, Wetumpka, AL, for John Doe, plaintiff.

Courtney Wayne Tarver, Raymond L. Jackson, Jr., Office of the Attorney General, Montgomery, AL, Alice Ann Byrne, Office of the Attorney General, Assistant Attorney General, Montgomery, AL, Scott L. Rouse, Office of the Attorney General, Montgomery, AL, for Bill Pryor, defendant.

Michael W. Robinson, Department of Public Safety, Montgomery, AL, Scott L. Rouse, Office of the Attorney General, Montgomery, AL, for Mike Sullivan, defendant.

Constance Caldwell Walker, Thomas T. Gallion, III, Haskell, Slaughter, Young & Gallion, Montgomery, AL, for D.T. Marshall, in his official capacity as Sheriff of Montgomery County, Alabama, defendant.

George B. Azar, Azar & Azar, Montgomery, AL, for John Wilson, in his official capacity as Chief of Police of the City of Montgomery, Alabama, defendant.

OPINION

MYRON H. THOMPSON, District Judge.

Pseudonymous plaintiff John Doe claims in this lawsuit that the 1996 Alabama Community Notification Act, as amended, 1975 Ala.Code §§ 15-20-20 to 15-20-24, is unconstitutional on its face and as applied to him. The plaintiff was convicted of the federal offense, committed at the age of 19, of receiving in interstate commerce a videotape depicting child pornography in violation of 18 U.S.C.A. § 2252(a)(2). The Notification Act did reach certain child pornography offenses until it was amended in 1998, two years after his federal offense. He names as defendants the Attorney General of the State of Alabama, the Director of the Alabama Department of Public Safety, and the Chief of Police of the City of Montgomery, Alabama. Jurisdiction is proper under 28 U.S.C.A. §§ 1331, 1343(a)(3).

The lawsuit is currently before the court on the plaintiff's motion for a preliminary injunction prohibiting enforcement of the Act's community-notification provisions against him pending resolution of this lawsuit. For the reasons set forth below, the motion will be granted. The court does not reach at this time the issues of the constitutionality of the Act on its face or as applied to the plaintiff in all respects but rather makes the limited preliminary holding that the process by which state officials found the plaintiff (who was convicted of a federal and not an Alabama offense) to be covered by the Act lacked the safeguards necessary to assure that the Act is not being applied to him in error.

I. BACKGROUND
A. The Act

The Community Notification Act is Alabama's version of `Megan's Law.'1 It is among the broadest and most restrictive of such laws in the nation.2 It requires individuals convicted of certain offenses to register with law enforcement officials, and it requires those officials to notify members of the public whenever a registrant moves into their community. It also places significant restrictions on where and with whom a registrant may live and work.

The Alabama Legislature first passed the Community Notification Act in 1996 and has since amended it twice. The original Act went into effect on May 29, 1996. See Ala. Act No. 96-793. The first amendment went into effect on August 1, 1998. See Ala. Act No. 98-489. The 1998 amendments expanded the Act to reach certain child pornography offenses. The second amendment, passed earlier this year, will go into effect on September 1, 1999. See Ala. Act No. 99-572. Except as otherwise noted below, no differences between the 1998 and 1999 amendments are relevant here.

1. Persons to Whom the Act Applies

Any person convicted of a "criminal sex offense" as defined by the Act is a "criminal sex offender" subject to the Act's registration, notification, residency, and employment provisions. "Criminal sex offense" includes rape, sodomy, sexual torture, sexual abuse, incest (when the offender is an adult and the victim is a minor), enticement and promoting prostitution. See 1975 Ala.Code § 15-20-21(a)(5). "Criminal sex offense" also includes kidnapping (if the victim is a minor) and violations of the Alabama Child Pornography Act.3 Id. Any solicitation, attempt or conspiracy to commit these offenses is a "criminal sex offense" under the Act as well, as is any crime, committed in another jurisdiction, which would constitute one of the enumerated offenses if committed in Alabama. Id. The Act does not indicate who determines whether it applies to a person convicted in another jurisdiction or how that determination is to be made, but the Alabama Attorney General has declared that "authorities charged with the implementation of the Community Notification Act" should examine whether "the elements of the crime for which the person was convicted correspond to the elements of a crime listed in section 15-20-21(5)a-k...." Op.Ala. Att'y Gen. No. 99-00082, at 2 (Jan. 13, 1999).4 The Act provides no process by which an individual deemed to be a "criminal sex offender" may challenge that determination.

Although the Community Notification Act is not expressly retroactive, it contains no language limiting its application to those convicted of a criminal sex offense after the Act was passed. The Alabama Attorney General has interpreted it to apply to individuals convicted prior to the Act whenever they establish a new residence within the State. See Op.Ala. Att'y Gen. No. 99-00040 (Nov. 16, 1998); Op.Ala. Att'y Gen. No. 99-00029 (Oct. 29, 1998); Op.Ala. Att'y Gen. No. 99-00011 (Oct. 19, 1998); Op.Ala. Att'y Gen. No. 98-00164 (June 16, 1998); Op.Ala. Att'y Gen. No. 97-00255 (Aug. 11, 1997) (overruled in part). The 1999 amendment codifies these opinions. See Ala. Act No. 99-572, § 3 (to be codified at 1975 Ala.Code §§ 15-20-33(c)). Thus, a person who completed his or her sentence for a criminal sex offense in 1975, for example, will be required to register only if he or she wishes to establish a new residence.

The Act is also unlimited in duration. The current version contains no language limiting its prospective or retrospective application to a specified length of time. Thus, the Act applies with equal force to a person convicted of a criminal sex offense in 1999 as it does to a person convicted in 1909, and a person subject to the Act today is subject to it for life. The 1999 amendment limits the scope of the Act to 25 years from the date of release unless the person was convicted of more than one criminal sex offense or a criminal sex offense involving more than one victim. See id. § 3 (to be codified at 1975 Ala.Code § 15-20-33(a)).

2. Residency and Employment Restrictions

The Act prohibits criminal sex offenders from establishing a residence or accepting employment "within 1,000 feet of the property on which any public school, private or parochial school, licensed daycare center, or any other child care facility is located." 1975 Ala.Code § 15-20-22(e). The current version of the Act does not define these terms, but the Alabama Attorney General has interpreted "child care facility" to mean "facilities that are required to be licensed or certified by the Department of Human Resources or other agency, or those facilities specifically exempted by section 38-7-3 of the Code of Alabama." Op.Ala. Att'y Gen. No. 99-00039, at 3 (Nov. 13, 1998). Such facilities include daycare homes, group homes, foster-family homes, and church-based pre-schools. Id. at 2. The 1999 amendment defines the term "child care facility" in a manner consistent with this interpretation and clarifies the meaning of "school." See Ala. Act No. 99-572, § 3 (to be codified at 1975 Ala.Code § 15-20-21(2), 15-20-21(9)).

The Act also prohibits criminal sex offenders from establishing a residence "or any other living accommodation" where a minor resides unless the offender is the minor's parent. 1975 Ala.Code § 15-20-22(g); see also Op.Ala. Att'y Gen. No. 98-00214 (Sept. 9, 1998) (stating that the term "parent" as used in the Act does not include a step-parent). The parental exception does not apply, however, if the offender's parental rights have been or are in the process of being terminated, or if the offender's victim was his or her minor or adult child. See 1975 Ala.Code § 15-20-22(g); see also Op.Ala. Att'y Gen. No. 99-00034 (Nov. 3, 1998) (stating that the term "child" as used in the act does not include a step-child).

The Act places additional limitations on the criminal sex offender's contact with his or her former victims. First, it prohibits criminal sex offenders from establishing a residence or any other living accommodation "within 1,000 feet of the property on which any of his or her former victims, or the victims' immediate family members reside. ..." 1975 Ala.Code § 15-20-22(f). Second, it provides that an offender may not "willfully or knowingly come within 100 feet of any of his or her former victims, except as elsewhere provided by law, or make any visual or audible sexually suggestive or obscene gesture, sound, or communication at or to a former victim." Id. § 15-20-22(f).

Finally, the Act prohibits an offender from changing his or her name. See id. § 15-20-22(i).

Any knowing violation of the residency restrictions is a Class C felony. See id. § 15-20-24.

3. Registration

Thirty days prior to release from state or local custody, criminal sex offenders must declare in writing the address at which they intend to reside upon release. See 1975 Ala.Code § 15-20-21(b). The Act requires the relevant correctional officials then to register this address with law enforcement officials. See id. Registration must also include a description of the offense, the offender's fingerprints, a current photograph and other information needed to identify and trace him or her. See id.

The Act requires the...

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