Does v. Lee

• Docket Number: Case No. 3:21-cv-00590,Case No. 3:21-cv-00593,Case No. 3:21-cv-00594,Case No. 3:21-cv-00595,Case No. 3:21-cv-00596,Case No. 3:21-cv-00597,Case No. 3:21-cv-00598,Case No. 3:21-cv-00624,Case No. 3:21-cv-00671
• Decision Date: 02 March 2023
• Citation: 659 F.Supp.3d 865
• Parties: John DOES #1-9, Plaintiffs, v. William LEE, in his capacity as Governor of the State of Tennessee, and David Rausch, in his capacity as Director of the Tennessee Bureau of Investigation, Defendants.
• Court: U.S. District Court — Middle District of Tennessee

659 F.Supp.3d 865

John DOES #1-9, Plaintiffs, v.William LEE, in his capacity as Governor of the State of Tennessee, and David Rausch, in his capacity as Director of the Tennessee Bureau of Investigation, Defendants.

Case No. 3:21-cv-00590

Case No. 3:21-cv-00593

Case No. 3:21-cv-00594

Case No. 3:21-cv-00595

Case No. 3:21-cv-00596

Case No. 3:21-cv-00597

Case No. 3:21-cv-00598

Case No. 3:21-cv-00624

Case No. 3:21-cv-00671

United States District Court, M.D. Tennessee, Nashville Division

Filed March 2, 2023

Edward M. Yarbrough, Bone, McAllester & Norton, PLLC, Nashville, TN, Jonathan P. Farmer, Walter Justin Adams, Spencer Fane LLP, Nashville, TN, for Plaintiffs.

Cody N. Brandon, Office of the Attorney General and Reporter, Nashville, TN, Courtney Orr, Mallory K. Schiller, Miranda H. Jones, Robert W. Mitchell, Tennessee Attorney General's Office, Nashville, TN, for DefendantsWilliam B. Lee, David B. Rausch.

MEMORANDUM

ALETA A. TRAUGER, United States District Judge

Governor William Lee and Director David Rausch of the Tennessee Bureau of Investigation ("TBI") have filed a Motion for Summary Judgment(Doc. No. 115), to which the nine John Doeplaintiffs have jointly filed a Response (Doc. No. 126), and the Governor and Director have filed a Reply (Doc. No. 129).The plaintiffs also have filed a Motion for Summary Judgment(Doc. No. 121), to which the Governor and Director have filed a Response (Doc. No. 127), and the plaintiffs have filed a Reply (Doc. No. 130).One plaintiff, Doe #9, has filed a Renewed Motion for Preliminary Injunction.(Doc. No. 102.)For the reasons set out herein, the plaintiffs' Motion for Summary Judgment will be granted, the defendants' motion will be denied, and Doe #9's motion will be denied as moot.

I.BACKGROUND¹

A.The Constitutional Prohibition on Ex Post Facto Punishments

The United States Constitution presupposes that the government may punish people for actions that have been deemed criminal.However, the government's authority to impose criminal punishment is subject to certain special constraints that may not apply to the government's other powers.One such constraint is the Constitution's ban on the adoption of "ex post facto Laws," set out in its Ex Post Facto Clauses, one of which applies to the federal government and one to the states.U.S. Const., art I, §§ 9, cl.3, 10, cl. 1.²

"[E]x post facto law" is "a term of art" that, consistently with its "established meaning at the time of the framing," has been construed to refer to criminal, but not civil, laws that are retroactive in effect.Cal. Dep't of Corr. v. Morales,514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588(1995)(quotingCollins v. Youngblood,497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30(1990)).But seeCollins,497 U.S. at 41, 110 S.Ct. 2715(acknowledging that a literal reading of the language would reach all, not merely criminal, laws).

In its most straightforward formulation, the Ex Post Facto Clause dictates that "[l]egislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts."Collins,497 U.S. at 43, 110 S.Ct. 2715."Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed."Weaver v. Graham,450 U.S. 24, 28-29, 101 S.Ct. 960, 67 L.Ed.2d 17(1981)(citingDobbert v. Florida,432 U.S. 282, 298, 97 S.Ct. 2290, 53 L.Ed.2d 344(1977);Kring v. Missouri,107 U.S. 221, 229, 2 S.Ct. 443, 27 L.Ed. 506(1883);Calder v. Bull,3 U.S. 386, 387, 3 Dall. 386, 1 L.Ed. 648(1798)).

The Ex Post Facto Clause, on its face, contains no exceptions and makes no reference to the severity of either the crime committed or the punishment at issue.That is because the core interest protected by the Clause "is not an individual's right to less punishment," but rather the "lack of fair notice" given by the government.Weaver,450 U.S. at 30, 101 S.Ct. 960.Accordingly, even a scrupulously proportionate punishment can violate the Ex Post Facto Clause if it was not authorized at the time that the underlying wrongful act was committed, and even a manifestly unjust and disproportionate punishment will not violate the Clause, as long as that punishment was authorized ahead of time.The Ex Post Facto Clause is concerned with timing and notice, not reasonableness in a larger sense.

While the core prohibition of the Ex Post Facto Clause is straightforward, courts have long struggled with its outer boundaries.For example, it is accepted as axiomatic that the Clause "forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer."Lindsey v. Washington,301 U.S. 397, 401, 57 S.Ct. 797, 81 L.Ed. 1182(1937)(citingKring,107 U.S. at 228-29, 2 S.Ct. 443;Thompson v. Utah,170 U.S. 343, 351, 18 S.Ct. 620, 42 L.Ed. 1061(1898);In re Medley,134 U.S. 160, 171, 10 S.Ct. 384, 33 L.Ed. 835(1890)).Accordingly, a state could not retroactively turn a crime with a ten-year minimum sentence into one with a twenty-year minimum sentence.The actual practice of criminal punishment, however, involves more than merely imposing a sentence dictated by statute.The punishment that a convicted defendant will actually receive involves an array of judicial and administrative determinations, including the selection of a sentence from a range of possible options, the calculation of actual days to serve, the availability of "good time" or other post-conviction reductions in time to serve, and, of course, the availability of parole.The procedures and substantive principles governing these secondary determinants of punishment are often amended as well, raising the question of whether those changes can be applied retroactively.

Faced with these issues, the Supreme Court's "cases'have not attempted to precisely delimit the scope of'" the term "ex post facto Law,""but have instead given it substance by an accretion of case law."Peugh v. United States,569 U.S. 530, 538-39, 133 S.Ct. 2072, 186 L.Ed.2d 84(2013)(quotingDobbert,432 U.S. at 292, 97 S.Ct. 2290);see, e.g., id. at 544, 133 S.Ct. 2072(holding that retroactive application of change in Sentencing Guidelines violated the Ex Post Facto Clause);Lynce v. Mathis,519 U.S. 433, 446, 117 S.Ct. 891, 137 L.Ed.2d 63(1997)(holding that retroactive cancellation of provisional early release credits violated the Ex Post Facto Clause);Morales,514 U.S. at 514, 115 S.Ct. 1597(holding that retroactive application of law allowing for deferral of parole hearings did not violate the Ex Post Facto Clause);Weaver,450 U.S. at 36, 101 S.Ct. 960(holding that retroactive application of statute reducing availability of good time credits violated the Ex Post Facto Clause).

B.Tennessee's Sexual Offender Registry and Restrictions on Registrants

Prior to 1995, individuals in Tennessee convicted of sexual offenses faced formal consequences that were mostly similar to those borne by individuals convicted of similarly serious non-sexual offenses.There may have been unique collateral consequences for sexual offenses in some areas—such as in family law proceedings—and defendants convicted of sexual crimes may have suffered especially severe extralegal reputational harms in their communities.For the most part, however, the path of a person convicted of a sexual offense was a familiar one: he³ would be convicted and serve punishment, often in the form of incarceration, after which he might be paroled or, if not paroled, released when his sentence was completed.Then, if there were no other sentences or charges awaiting him related to other crimes, he would attempt to reintegrate into society.

In 1994, however, the Tennessee General Assembly, concerned with the potential actions of sexual offenders after they had served their sentences, adopted legislation requiring the TBI to "establish, maintain, and update a centralized record system of sexual offender registration and verification information."1994 Tenn. Pub. Laws, ch. 976 § 7(a).That statute went into effect on January 1, 1995.(Doc. No. 128 ¶ 1.)Although the details, and even the name, of Tennessee's registration statutes have changed significantly over time, the court will refer to them generally as "the Act."The Act, in its original form, required registration for all individuals convicted of any one of a number of identified sexual offenses, "unless the offender had been wholly released without supervision from incarceration, probation, or parole prior to January 1, 1995."Doe v. Haslam,No. 3:16-CV-02862, 2017 WL 5187117, at *1(M.D. Tenn.Nov. 9, 2017)(Crenshaw, C.J.)(citing1994 Tenn. Pub. Laws, ch. 976 § 3(2)-(3)).Accordingly, there existed a subset of defendants who were required to register based on crimes they committed before the registry was in place: namely, (1) convicted defendants who were still in the process of incarceration, parole, or supervision for a crime committed prior to 1995; and (2) individuals who committed crimes prior to 1995 but would only go on to be convicted at a later date.

The initial registration system was relatively undemanding and mostly concerned with ensuring the accuracy of registry information.A person convicted of a covered offense was required to register with the TBI by paper form within ten days of release without supervision from probation, parole, or incarceration.1994 Tenn. Pub. Laws, ch. 976 § 4.The TBI would then send the registrant a fresh verification form every ninety days, which the registrant was required to return within ten days of receipt.Id.§ 5.The registrant also had an ongoing duty to complete a new form within ten days of any change of residence.Id.§ 4.The information in the registry was generally considered confidential, but the TBI or a local law enforcement agency could "release relevant information deemed necessary to protect the public...