Formaro v. Polk County

• Citation: 773 N.W.2d 834
• Decision Date: 04 September 2009
• Docket Number: No. 08-0255.,08-0255.
• Parties: Robert Paul FORMARO, Appellant, v. POLK COUNTY, Iowa; City of Ankeny, Iowa and State of Iowa, Appellees.
• Court: Iowa Supreme Court

773 N.W.2d 834

Robert Paul FORMARO, Appellant, v. POLK COUNTY, Iowa; City of Ankeny, Iowa and State of Iowa, Appellees.

No. 08-0255.

Supreme Court of Iowa.

September 4, 2009.

Alfredo Parrish of Parrish Kruidenier Dunn Boles Gribble Parrish Gentry & Fisher, L.L.P., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Forrest Guddall, Assistant Attorney General, for appellee State.

John P. Sarcone, Polk County Attorney, and Michael B. O'Meara and Roger J. Kuhle, Assistant Polk County Attorneys, for appellee Polk County.

Harry Perkins, III and Jason W. Miller of Patterson Law Firm, L.L.P., Des Moines, for appellee City of Ankeny.

APPEL, Justice.

In this case, we are again called upon to consider constitutional challenges to Iowa Code section 692A.2A (2005),¹ commonly known as the 2000-foot rule, which limits places where certain sex offenders may reside within the state. The appellant sought a declaratory judgment that Iowa Code section 692A.2A violates his state and federal constitutional rights because it: (1) infringes upon his right to travel and freedom of association, (2) utilizes terms that are impermissibly vague or overbroad in violation of due process, (3) is an unconstitutional bill of attainder, and (4) is an ex post facto law. For the reasons expressed below, the district court judgment dismissing each of these claims is affirmed.

I. Factual and Procedural Background.

At age fifteen, Robert Formaro was found as a juvenile to have committed sexual abuse in the second degree against another minor. The Polk County Juvenile Court ordered Formaro not be placed on the sex offender registry for the offense because the court found that there was a low risk that Formaro would reoffend.

Two years later, the plaintiff participated in a burglary of a home. While an adult resident of the burglarized home was sexually assaulted, Formaro did not participate directly in the assault. Formaro pled guilty to burglary, received an indeterminate sentence of ten-years imprisonment, and was incarcerated at the Mt. Pleasant Correctional Facility. While at Mt. Pleasant, Formaro was not required to participate in sex offender treatment programs, but was placed upon the sex offender registry.

When Formaro was paroled in November 2004, he lived with his parents in Ankeny with the approval of his probation officer. In September 2005, however, David Lockridge, Formaro's new parole officer, discovered that Formaro's parents' home was within 2000 feet of an elementary school. As a result, Lockridge informed Formaro that by living at his parents' home he was in violation of the 2000-foot rule. In October, Formaro was served with a notice of violation under Iowa Code section 692A.2A and given five days to move out of his parents' home. After receiving the notice, Formaro's mother, Barbara Leonard, began to search for alternative housing while Formaro himself continued to work at the family's restaurant, where he earned between $600 and $1200 per month.

After searching for eight to twelve hours for a residence in Ankeny, Leonard located only one apartment that fell outside the 2000-foot limitations, but there were no vacancies. She then began to search in Altoona, but after eight hours of effort could find no available rental properties that were outside the 2000-foot limitations. Leonard then turned to Des Moines, where she found one acceptable rental property. Formaro's application, however, was rejected because the landlord considered Formaro to be an undesirable tenant due to his burglary conviction. She did not look in unincorporated areas of Polk County because "they just don't have apartments in these unincorporated areas much. . . ." Finally, Leonard looked in West Des Moines, but was also unable to find a rental property that complied with that city's restrictions for persons listed on the sex offender registry.

While Leonard was unable to secure housing for Formaro, Lockridge found him a place to live in a Des Moines motel for $800 a month. After the evidentiary hearing in this matter, Formaro secured housing at an apartment in Des Moines for $400 per month.

In November 2005, Formaro filed a four-count petition in district court against the State of Iowa, Polk County, and the City of Ankeny. In Count I, Formaro sought a declaration that he was not subject to the 2000-foot rule. In Count II, he sought a declaration that the 2000-foot rule was unconstitutional on its face and as applied to him. In Count III, Formaro sought monetary relief under federal law. In Count IV, Formaro sought injunctive relief and requested an emergency hearing to address his residency restrictions. Each defendant filed a motion to dismiss the petition.

After a hearing in December, the district court denied Formaro's application for injunctive relief. The district court noted that Formaro had found a permissible residence. The fact that Formaro might have to pay more than he would like was not sufficient irreparable harm. Further, based on legal precedents from this court and the Eighth Circuit, the district court concluded that Formaro had not shown a strong likelihood of success on the merits of his claims. The district court, however, denied the motions to dismiss Polk County and the City of Ankeny.

The State filed a motion to reconsider, noting that the district court failed to address its separate motion to dismiss. The district court in January entered an order dismissing count I against all defendants and count III against the State, but allowing the remaining claims to go forward.

With the consent of the parties, the case was submitted to the district court on the record established at the December hearing on the application for a temporary injunction. The district court held that Formaro's constitutional claims were without merit. Formaro filed a timely notice of appeal.

II. Standard of Review.

The issues remaining on appeal concern the constitutional application of sexual offender residency restrictions to Formaro. The court reviews constitutional claims de novo. State v. Groves, 742 N.W.2d 90, 92 (Iowa 2007).

III. Discussion.

A. Right to Travel and Freedom of Association. Almost half a century ago, the United States Supreme Court recognized a federal constitutional right to interstate travel. United States v. Guest, 383 U.S. 745, 758, 86 S.Ct. 1170, 1178, 16 L.Ed.2d 239, 249 (1966). The textual source for the fundamental right, however, is uncertain. At times, it has been attributed to the Privileges and Immunities Clauses of Article IV and the Fourteenth Amendment and to the Commerce Clause or has been inferred from the federal structure of government created by the Federal Constitution. Att'y Gen. v. Soto-Lopez, 476 U.S. 898, 902, 106 S.Ct. 2317, 2320, 90 L.Ed.2d 899, 905 (1986).

The fundamental right to travel has three recognized components. Saenz v. Roe, 526 U.S. 489, 500, 119 S.Ct. 1518, 1525, 143 L.Ed.2d 689, 702 (1999). First, a citizen of one state may enter and leave another state. Id. Second, a citizen of one state has "the right to be treated as a welcome visitor rather than as an unfriendly alien when temporarily present" in another state. Id. Third, a citizen of one state who elects to become a permanent resident of another state has the right to be treated like other citizens of the second state. Id. In addition, the freedom to travel is sometimes seen as an essential means of effectuating other rights, such as freedom of association and freedom of speech. Aptheker v. Sec'y of State, 378 U.S. 500, 517, 84 S.Ct. 1659, 1670, 12 L.Ed.2d 992, 1004 (1964).

Recognition of the fundamental right to interstate travel has led to wide speculation regarding the existence of a corresponding right to intrastate travel. This court, however, has not yet expressly embraced such a right. In City of Panora v. Simmons, 445 N.W.2d 363 (Iowa 1989), this court declined to strike down a municipal juvenile curfew law, with the majority concluding that the "right of intracity travel is not a fundamental right. . . ." Simmons, 445 N.W.2d at 369 (emphasis added). Justice Lavorato dissented, noting, "A hallmark of a free society, the right to travel, is perhaps the most cherished of all our fundamental rights." Id. at 371 (Lavorato, J., dissenting).

Several federal circuit courts after Simmons, however, have recognized a fundamental right to intrastate travel under the federal constitution. Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002); Spencer v. Casavilla, 903 F.2d 171, 174 (2d Cir.1990); Lutz v. City of York, 899 F.2d 255, 268 (3d Cir.1990). The United States Supreme Court has yet to explicitly weigh in on the issue, though some jurists have found support for a federal right to intrastate travel in its precedent, especially Justice Douglas's concurrence in Aptheker. See Simmons, 445 N.W.2d at 371 (Lavorato, J., dissenting).

This court revisited the constitutionality of juvenile curfew statutes three years after Simmons in City of Maquoketa v. Russell, 484 N.W.2d 179 (Iowa 1992). While this court unanimously found that curfew ordinance unconstitutional, the holding was based on the ordinance's impermissible infringement on First Amendment freedoms and not exclusively on a right to intrastate travel. Russell, 484 N.W.2d at 183-86. Russell stands for the proposition that an ordinance may infringe on First Amendment freedoms, including the freedom of association, by restricting intrastate travel. Id. The existence and breadth of a federal and state constitutional right to intrastate travel thus remains a live wire.

Formaro invites us to recognize those rights here and argues that Iowa Code section 692A.2A on its face violates his state and federal right to intrastate travel and freedom of association. He claims that the statute effectively prohibits him from traveling to any location where he may fall asleep within the 2000-foot zone, bars him from participating in overnight political...