Jane Doe v. Dewine, 17-3857

• Decision Date: 11 December 2018
• Docket Number: No. 17-3857,17-3857
• Parties: Jane DOE, Plaintiff-Appellee, v. Michael DEWINE, Ohio Attorney General, and Tom Stickrath, Superintendent of the Ohio Bureau of Criminal Investigation, in Their Official Capacities, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

910 F.3d 842

Jane DOE, Plaintiff-Appellee,

v.Michael DEWINE, Ohio Attorney General, and Tom Stickrath, Superintendent of the Ohio Bureau of Criminal Investigation, in Their Official Capacities, Defendants-Appellants.

No. 17-3857

United States Court of Appeals, Sixth Circuit.

Argued: July 26, 2018

Decided and Filed: December 11, 2018

ARGUED: Michael J. Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. Alexandra Naiman, OHIO JUSTICE & POLICY CENTER, Cincinnati, Ohio, for Appellee. ON BRIEF: Michael J. Hendershot, Eric E. Murphy, Stephen P. Carney, Thomas E. Madden, Mindy Worly, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. Alexandra Naiman, David A. Singleton, OHIO JUSTICE & POLICY CENTER, Cincinnati, Ohio, for Appellee.

Before: WHITE, DONALD, and LARSEN, Circuit Judges.

OPINION

HELENE N. WHITE, Circuit Judge.

Defendants-Appellants Michael DeWine, Ohio Attorney General, and Tom Stickrath, Superintendent of the Ohio Bureau of Criminal Investigation, appeal the district-court judgment declaring that Ohio’s sexual-offender registration and notification laws violate Plaintiff-Appellee Jane Doe’s procedural due process rights because they subject her to lifetime registration requirements, which rest on an implicit finding that she remains likely to reoffend, without an opportunity to rebut that finding. We REVERSE .

I. BACKGROUND

In 2006, Doe pleaded guilty to unlawful sexual conduct with a minor, in violation of Ohio Rev. Code ("O.R.C.") § 2907.04(A) (2000). She was sentenced to one year of confinement and five years of probation. At the time, Ohio’s Megan’s Law,¹ id. § 2950 et seq. (1996), which governed the classification, registration, and community-notification requirements for Ohio sex offenders, required the sentencing court to determine whether a person convicted of a sexually oriented offense should be classified as a "sexual predator," defined as "a person who ... is likely to engage in the future in one or more sexually oriented offenses." Id. § 2950.01(E)(1). An offender so classified is subject to burdensome housing restrictions and registration and community-notification requirements. See id. §§ 2950.01(G), (E); 2950.07(B). Classification was based on an individualized evaluation of multiple factors set forth in § 2950.09(B)(3), conducted in light of expert-witness testimony and other evidence introduced at the classification hearing. Id. § 2950.09(B)(2).

The sentencing court classified Doe as a sexual predator, and that classification was affirmed on appeal. As a sexual predator, Doe is required to register with the local sheriff and provide her name and any aliases, social-security number, date of birth, current address, name and address of employer, name and address of school, locations where her vehicles are regularly parked, license-plate numbers, driver’s license number, professional or occupational license numbers, email addresses, internet identifiers, and telephone numbers. Id. § 2950.04(C) (2007). She is additionally required to provide written notice of any changes to this information, id. § 2950.05 (1996), and verify, in person, the current address of her residence, school, and place of employment with the sheriff every ninety days. Id. §§ 2950.06(B)(1)(a) (2003); 2950.06(C)(1) (2003). And, because of her sexual-predator designation, Doe must satisfy these requirements for the rest of her life. Id. § 2950.07(B)(1) (2003). Failure to do so is punishable as a felony. Id. § 2950.99(A)(1)(a)(ii) (2011).

Doe is also subject to community-notification requirements. Id. § 2950.11 (2003). Local sheriffs and the Ohio Attorney General are required to disseminate Doe’s registration information to the public through an internet sex-offender database. Id. §§ 2950.081 (2003); 2950.14(D) (2003); 2950.13(1), (11), (13) (2006). Additionally, Doe may not reside within one-thousand feet of any school, id. § 2950.034(A) (2007), and because she is subject to a lifetime-registration requirement under § 2950.09(D)(2) (2003), federal regulations bar her from living in federally subsidized housing. 24 C.F.R. §§ 960.204(a)(4), 982.553(a)(2)(i).

For a period of time before Doe’s offense, persons classified as sexual predators had a statutory right to petition the sentencing court for a hearing to reassess their likelihood of reoffending and change their classification. O.R.C. § 2950.09(D)(1) (1996).² However, the Ohio legislature eliminated that right in 2003. The Ohio sexual-offender registration and notification law applicable to Doe stated that "[i]n no case shall the lifetime duty to comply ... be removed or terminated." Id. § 2950.07(B)(1) (2003). It further stated that "the classification or adjudication of the offender as a sexual predator is permanent and continues in effect until the offender’s death and in no case shall the classification or adjudication be removed or terminated." Id . § 2950.09(D)(2).³

II. PROCEDURAL HISTORY

In 2012, Doe filed this 42 U.S.C. § 1983 action against the Ohio Attorney General (Attorney General), the Superintendent of the Ohio Bureau of Criminal Investigation (Superintendent), and the Sheriff of Hamilton County, Ohio (Sheriff), seeking a declaration that O.R.C. § 2950.07(B)(1) (2003) is unconstitutional because it prevents her from obtaining a hearing to demonstrate that she is no longer "likely to engage in the future in one or more sexually oriented offenses," id. § 2950.01(E), thus violating her procedural and substantive due process rights under the Fourteenth Amendment to the U.S. Constitution. Doe also seeks "an Order that a hearing be scheduled in the sentencing court to determine whether ... Doe is currently dangerous." (R. 1, PID 9.)

In granting in part and denying in part the parties’ cross-motions for summary judgment, the district court first rejected Defendants’ arguments that Doe lacks standing to pursue her claim and that Defendants are entitled to Eleventh Amendment immunity.⁴ The district court then rejected Doe’s substantive due process claim, concluding that Doe "has not established that being subject to Ohio’s sex offender registration and notification provisions violates a fundamental right regardless of the procedural protections provided."⁵ (R. 83, PID 758.) The district court concluded, however, that "the failure to provide Doe with any opportunity during her lifetime to challenge her classification as a sexual predator who currently is likely to reoffend violates her procedural due process rights" because the challenged law implicates Doe’s liberty and property interests in reputation and access to federally subsidized housing and because Ohio lacks a procedural mechanism for Doe to obtain a reclassification hearing to vindicate those interests. (Id. at 752, 755, 756.)

The district court initially ordered additional briefing on the issue of relief because it concluded that it lacked authority to grant the requested injunction ordering a reclassification hearing. However, at a subsequent status conference, the district court determined that further briefing was unnecessary and, without issuing the injunction, struck down O.R.C. §§ 2950.07(B)(1) and 2950.09(D)(2) as unconstitutional "to the extent they forever prohibit the removal or termination of a ‘sexual predator’ classification with its requirements and duties." (R. 85, PID 769.)

Defendants timely appeal.⁶

III. DISCUSSION

A. Standard of Review

This court reviews de novo a district court’s summary judgment order based on purely legal grounds. Black v. Roadway Express, Inc. , 297 F.3d 445, 448 (6th Cir. 2002) (citations omitted). We also review de novo whether the Eleventh Amendment entitles a defendant to sovereign immunity, Price v. Medicaid Dir. , 838 F.3d 739, 746 (6th Cir. 2016) (citation omitted), and whether a plaintiff has Article III standing to bring the action, Murray v. U.S. Dep’t of Treasury , 681 F.3d 744, 748 (6th Cir. 2012) (citation omitted).

B. Jurisdiction

Before reaching the merits, we address Defendants’ contention that the district court lacked subject-matter jurisdiction. Defendants claim that they are "immune from declaratory relief" under the Eleventh Amendment "because they do not enforce the restrictions from which Doe seeks relief," and that "no order against [Defendants] can redress [Doe’s] claimed injury." (Appellants’ Br. at 2.)

1.

Because we have held that "the Eleventh Amendment is a true jurisdictional bar," Defendants’ entitlement to sovereign immunity "must be decided before the merits." Russell v. Lundergan-Grimes , 784 F.3d 1037, 1046 (6th Cir. 2015). The Eleventh Amendment "deprives federal courts of subject-matter jurisdiction when a citizen sues his own State unless the State waives its immunity or Congress abrogates that sovereign immunity." Id . at 1046 (citation omitted). However, under the Ex parte Young exception, "a federal court may, without violating the Eleventh Amendment, issue a prospective injunction against a state officer to end a continuing violation of federal law." Price , 838 F.3d at 746–47 (citing Ex parte Young , 209 U.S. 123, 159, 28 S.Ct. 441, 52 L.Ed. 714 (1908) ).

Defendants contend that Ex parte Young is inapplicable here because, under the relevant Ohio laws, neither the Attorney General nor the Superintendent can enforce Doe’s compliance—or prosecute her noncompliance—with the challenged registration requirements. See O.R.C. § 2950.04(A)(1)(a) (providing that a sex offender must register with the sheriff ); id . § 309.08 (charging local prosecutors with enforcing state criminal laws). Indeed, "[g]eneral authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law." Russell , 784 F.3d at 1048 (quoting 1st Westco Corp. v. Sch. Dist. of Phila. , 6 F.3d 108, 113 (3d Cir. 1993) ). Rather, a state official must possess "some connection with the enforcement of the [challenged law]," Ex parte Young , 209 U.S. at 157, 28 S.Ct....