Jane Doe v. Va. Dep't of State Police

• Citation: 713 F.3d 745
• Decision Date: 12 April 2013
• Docket Number: No. 11–1841.,11–1841.
• Parties: Jane DOE, Plaintiff–Appellant, v. VIRGINIA DEPARTMENT OF STATE POLICE; W. Steven Flaherty, Colonel, in his official capacity as Superintendent of the Virginia Department of State Police; Spotsylvania County School Board; J. Gilbert Seaux, in his official capacity as the Chairman of the School Board of the Spotsylvania County Schools, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

713 F.3d 745

Jane DOE, Plaintiff–Appellant,

v.VIRGINIA DEPARTMENT OF STATE POLICE; W. Steven Flaherty, Colonel, in his official capacity as Superintendent of the Virginia Department of State Police; Spotsylvania County School Board; J. Gilbert Seaux, in his official capacity as the Chairman of the School Board of the Spotsylvania County Schools, Defendants–Appellees.

No. 11–1841.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 18, 2012.

Decided: April 12, 2013.

ARGUED:Marvin David Miller, Alexandria, Virginia, for Appellant. Charles Antony Quagliato, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellees. ON BRIEF:Kenneth T. Cuccinelli, II, Attorney General of Virginia, Richmond, Virginia, for Appellees Virginia Department of State Police and W. Steven Flaherty; Jennifer Lee Parrish, Parrish, Houck & Snead, PLC, Fredericksburg, Virginia, for Appellees Spotsylvania County School Board and J. Gilbert Seaux.

Before KING, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge DUNCAN wrote the majority opinion, in which Judge KEENAN joined. Judge KEENAN wrote a separate concurring opinion. Judge KING wrote a dissenting opinion.

OPINION

DUNCAN, Circuit Judge:

Jane Doe brought a challenge to Va.Code sections 9.1–900 et seq. and 18.2–370.5, which, together, classify her as a sexually violent offender and prevent her from entering the grounds of a school or daycare without first gaining permission from a Virginia circuit court and the school board or the owner of the daycare. She also challenged the policy of the Spotsylvania County School Board (the “Board”), which she alleges does not allow her to petition anonymously for entry onto school property. The district court dismissed all but one of her claims on the grounds that they were unripe and that she lacked standing. It determined that her remaining claim failed to allege grounds upon which relief could be granted, and dismissed it under Federal Rule of Civil Procedure 12(b)(6).

Doe's complaint includes four counts: she alleges that the defendants have violated her substantive due process, procedural due process, associational, and free exercise rights. The injuries she alleges with respect to the first, third, and fourth of these counts stem from impediments the Virginia statute and the Board policy place on her ability to access school and church property. However, because she has not yet attempted to undertake the requisite steps to access these properties, she cannot demonstrate that these claims are justiciable at this juncture. One component of her second count, her challenge to the law stemming from an alleged denial of procedural due process, on the other hand, is justiciable. However, she fails to state a procedural due process claim upon which relief may be granted. Accordingly, we affirm the district court's dismissal of her claims.

I.

A.

Doe was convicted in 1993 of carnal knowledge of a minor without the use of force in violation of Va.Code section 18.2–63. Under Virginia law, she was required to register on the Virginia Sex Offender and Crimes Against Minors Registry (the “Registry”), Va.Code section 9.1–902 (formerly Va.Code section 19.2–298.1), but she would have been able, after a period of time, to petition a Virginia circuit court to have her name removed from the Registry, Va.Code section 9.1–910. However, a 2008 amendment reclassified Doe's crime as a “sexually violent offense,” 2008 Va. Acts 877; seeVa.Code section 9.1–902(E)(1), and because Virginia law does not provide an avenue for sexually violent offenders to petition for removal from the Registry, Doe must now remain on the Registry for life, Va.Code section 9.1–910(A).

As an individual classified as a sexually violent offender, Doe is required to register with the Virginia Department of State Police (the “Department”), which publishes sex offenders' names, photographs, and certain other personal information on a website accessible to anyone browsing the internet. This information is indexed by the zip codes in which the offenders work and live. In addition, and of more consequence in this case, the law prohibits Doe, as a sexually violent offender, from “entering or being present, during school hours, and during school-related or school-sponsored activities upon any property [s]he knows or has reason to know is a public or private elementary or secondary school or child day center property.” Va.Code section 18.2–370.5(A). She may, however, gain access through a successful petition to both (1) a circuit court and (2) a school board or owner of a private daycare. Va.Code section 18.2–370.5(B).

Doe lives in Spotsylvania County, Virginia with her husband, eleven-year-old stepson, and two children, who are nearing school age. Unless she gains permission from a Virginia circuit court and the Board, she is not able to meet with her stepson's teachers at school, attend his school functions, or drop him off at or pick him up from school. She contends that these restrictions will require her to homeschool her younger children. According to Doe, the Board provides her with no procedure whereby she may request permission for entry onto school property without revealing her identity and her classification as a violent sex offender. As a result, she claims, any petition she would make to the Board would expose her as a sexually violent offender to members of the school community, which would have dire social consequences for her children. Significantly, Doe may apply under an anonymous pseudonym to the circuit court. SeeVa.Code section 8.01–15.1. She acknowledges that “[a]pplication to the courts is not at issue.” Appellant's Br. at 19 n.4. Doe also claims that all the local churches of her faith have Sunday schools, so the prohibition from entering daycare property prevents her from going to church.

It is undisputed that Doe has not attempted to gain permission for entry either from a Virginia circuit court, the Board, or any church or church Sunday school.

B.

Rather than petition any of these entities, Doe brought a complaint under 42 U.S.C. § 1983 against, inter alia, Colonel W. Steven Flaherty, in his official capacity as Superintendent of the Department, and the Board. ¹ She alleged violations of her substantive due process, procedural due process, associational, and free exercise rights. Doe claimed that, by maintaining the Registry with her name and information on it and by failing to provide her with a means of petitioning anonymously for access to school grounds, the defendants infringed upon her fundamental right to raise and educate her children. See Pierce v. Soc'y of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). She also argued that Flaherty violated her right to procedural due process under the Fourteenth Amendment by reclassifying her and by publicizing her status as a sexually violent offender on the Registry without affording her a procedure through which to challenge this action, thereby preventing her from entering school and day center property, and that the Board violated her right to procedural due process by failing to provide her with a procedure by which she may anonymously petition to enter school property. Doe's third claim was that the defendants violated her right under the First and Fourteenth Amendments to associate with members of the school community. Finally, Doe argued that Flaherty violated her right under the First and Fourteenth Amendments to the free exercise of religion, because she is prohibited from entering churches of her faith in her area, all of which have Sunday schools.

She asked the district court to declare unconstitutional Va.Code section 18.2–370.5 governing access to schools and the petition process, the 2008 reclassification, and the Board policy; to order the Board to implement a procedure by which she could anonymously petition to enter and remain on school property; to enjoin the Board from exercising its authority to prevent her from entering school property; to enjoin Flaherty from enforcing Va.Code section 9.1–900 et seq., classifying her as a violent sex offender, and collecting, maintaining, and making publicly available her information in the Registry; and to order Flaherty to provide her with a procedure to prove that she is not a dangerous person and, therefore, should not be classified as a sexually violent offender.²

The district court dismissed all but one of Doe's claims because they were unripe and because Doe lacked standing. It found that her claim against Flaherty challenging her placement on the Registry met the tests for both ripeness and standing, but ultimately dismissed it under Federal Rule of Civil Procedure 12(b)(6).³

II.

A.

We review the district court's dismissal of Doe's claims de novo. See Miller v. Brown, 462 F.3d 312, 316 (4th Cir.2006) (de novo review of dismissal for lack of ripeness or standing); Goldstein v. Moatz, 364 F.3d 205, 211 (4th Cir.2004) (de novo review of dismissal for failure to state a claim under Rule 12(b)(6)). In reviewing the district court's dismissal, we must accept all properly pled factual allegations in the complaint as true and construe all facts in the light most favorable to the plaintiff. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir.2009).

B.

There exist two strands of standing: Article III standing, which ensures that a suit presents a case or controversy as required by the Constitution, and “prudential standing,” which encompasses “judicially self-imposed limits on the exercise of federal jurisdiction.” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).

To have Article III standing, Doe must be able to show that (1) she suffered an actual or threatened injury that is concrete, particularized, and not conjectural; (2) the injury is fairly traceable to the challenged conduct;...