John Doe v. Kerry

Decision Date23 September 2016
Docket NumberCase No. 16-cv-0654-PJH
PartiesJOHN DOE, TWO, et al., Plaintiffs, v. JOHN KERRY, et al., Defendants.
CourtU.S. District Court — Northern District of California

JOHN DOE, TWO, et al., Plaintiffs,
JOHN KERRY, et al., Defendants.

Case No. 16-cv-0654-PJH


September 23, 2016


Defendants' motion for an order dismissing the above-entitled action for lack of subject matter jurisdiction and for failure to state a claim came on for hearing before this court on July 27, 2016. Plaintiffs appeared by their counsel Janice Bellucci, and defendants appeared by their counsel Kathryn Wyer. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS the motion.


This case involves a constitutional challenge to the implementation of the International Megan's Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders ("IML"), Pub. L. No. 114-119, 130 Stat. 15 (Feb. 8, 2016).

A. Legislative and Administrative Background

The IML is the latest in a series of legislative attempts to reign in sex offenders and slow or halt sex trafficking across state lines and national borders.

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1. State and Federal Sex Offender Registration/Notification Programs

Sex offender registration and notification programs have been in place in the United States for more than 25 years. States began to develop sex offender registration programs in the late 1980s in an attempt to protect the public, especially children, from repeat offenders. See H.R. Rep. 109-218(I) at 28 (Sept. 9, 2005), 2005 WL 2210642 (Leg. Hist.).

Congress enacted the first federal standards to set minimum criteria for sex offender registration in 1994. See Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act ("Wetterling Act"), Pub. L. No. 103-322, § 170101, 108 Stat. 1796 (1994); see also H.R. Rep. 103-392 at 6, 1993 WL 484758 (Leg. Hist.). The Wetterling Act used the federal spending power to encourage states to adopt sex offender registration laws. See U.S. v. Kebodeaux, 133 U.S. 2496, 2501 (2013). It also established guidelines for states to track sex offenders, particularly when they moved to another jurisdiction. See Pub. L. No. 103-322, § 170101(b)(4)-(5); see also H.R. Rep. 103-392 at 6. By May 1996, all 50 states and the District of Columbia had registration systems for released sex offenders in place. See H.R. Rep. 105-256 at 6 (1997), 1997 WL 584298 (Leg. Hist.).

In the early 1990s, states began enacting registry and community-notification laws to monitor the whereabouts of individuals previously convicted of sex crimes. See Nichols v. U.S., 136 S.Ct. 1113, 1116 (2016); see also U.S. v. Crowder, 656 F.3d 870, 872 (9th Cir. 2011). In particular, during the mid-1990s, every state plus the District of Columbia passed a "Megan's Law" (named after 7-year-old Megan Kanka, who was raped and murdered by a neighbor). See, e.g., Cal. Pen. Code § 290.46 (requiring California Department of Justice to make available, on an Internet web site, certain information about persons who are required to register as sex offenders); see also Doe v. Brown, 177 Cal. App. 4th 408 (2009).

In January 1996, Congress enacted the federal Megan's Law, Pub. Law 104-145, 110 Stat 1345 (1996) (codified at 42 U.S.C. § 14071), which provided for dissemination of

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information from state sex offender registries, and required state and local law enforcement agencies to release information necessary to protect the public to federal, state, and local officials responsible for law enforcement activities or for running background checks pursuant to the National Child Protection Act, 42 U.S.C. § 5119, et seq.

Also in 1996, Congress enacted the Pam Lyncher Sex Offender Tracking and Identification Act of 1996 ("Lyncher Act"), Pub. L. 104-236, 110 Stat. 3093 (1996) (codified at 42 U.S.C. § 14072), which required the Attorney General to establish a national database (the National Sex Offender Registry or "NSOR") by which the Federal Bureau of Investigation ("FBI") could track certain sex offenders, and which allowed for dissemination of information collected by the FBI as necessary to protect the public, and provided for notification of the FBI and state agencies when certain sex offenders moved to other jurisdictions.

In 1997, Congress enacted the Jabob Wetterling Improvements Act, Pub. Law No. 105-119, 111 Stat. 2441 (1997), which amended the Wetterling Act, the Lyncher Act, and other federal statutes, by adding requirements regarding sex offender registration and tracking.

Both the Supreme Court and the Ninth Circuit have upheld sex offender registry and notification requirements against various constitutional challenges. See, e.g., Smith v. Doe, 538 U.S. 84, 105-06 (2003); Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 7 (2003); Litmon v. Harris, 768 F.3d 1237 (9th Cir. 2014); U.S. v. Juvenile Male, 670 F.3d 999, 1012 (9th Cir. 2014); Am. Civ. Liberties Union of Nev. v. Masto, 670 F.3d 1237 (9th Cir. 2012); Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir. 2004).


In 2006, Congress moved towards a comprehensive set of federal standards to govern state sex offender registration and notification programs by enacting the Sex Offender Registration and Notification Act ("SORNA"), part of the Adam Walsh Child Protection and Safety Act. Pub. L. No. 109-248, §§ 102-155, 120 Stat. 587 (codified in

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part at 42 U.S.C. §§ 16901 et seq.); see H.R. Rep. 109-218(1), at 27 (emphasizing "gaps and problems with existing Federal and State laws" due to "lack of uniformity" in state registration requirements and notification obligations); see also Nichols, 136 S.Ct. at 1119 (SORNA was intended to "make more uniform what had remained 'a patchwork of federal and 50 individual state registration systems,' with 'loopholes and deficiencies' that had resulted in an estimated 100,000 sex offenders becoming 'missing' or 'lost[ ]'") (citation omitted).

Congress enacted SORNA (which replaced the Wetterling Act in part) "[i]n order to protect the public from sex offenders and offenders against children . . . ." 42 U.S.C. § 16901. To this end, SORNA established "a comprehensive national system for the registration of those offenders." Id. SORNA "requires those convicted of certain sex crimes to provide state governments with (and to update) information, such as names and current addresses, for inclusion on state and federal sex offender registries." Reynolds v. U.S., 132 S.Ct. 975, 978 (2012). SORNA also makes it a crime for a person who is "required to register" under the Act and who "travels in interstate or foreign commerce" to knowingly fail to register or update a registration. Id. (citing 18 U.S.C. § 2250(a)).

As spending clause legislation, SORNA conditions full Byrne Justice Assistance Grant funding on a state's substantial implementation of certain requirements. See 42 U.S.C. § 16925(a) (states that fail to substantially implement the federally mandated requirements, as determined by the Attorney General each year, "shall not receive 10 percent of the [criminal justice funding from the federal government] that would otherwise be allocated for that fiscal year . . . .").

SORNA requires state registries to collect specific information, such as names, addresses, physical descriptions, criminal history information, and photographs of offenders. Id. § 16914(a), (b). It also sets minimum periods of registration based on the nature and seriousness of the sex offense and the offender's history of recidivism, see id. §§ 16911(2)-(4), 16915, and requires that a state notify certain federal agencies and

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other jurisdictions regarding its registrants, id. § 16921. In addition, SORNA provides for public dissemination of certain information on Internet sites. Id. § 16918.

At the federal level, SORNA directs the Attorney General, Secretary of State, and Secretary of Homeland Security to "establish and maintain a system for informing the relevant jurisdictions about persons entering the United States who are required to register." 42 U.S.C. § 16928. SORNA also reauthorized the NSOR, which includes information about all individuals required to register in any state registry, id. § 16919, and the National Sex Offender Public Website that allows anyone to search for such information by name or within specified areas, id. § 16920; see SORNA identified USMS as the federal agency primarily responsible for enforcing sex offender registration requirements.

3. SORNA Guidelines and USMS International Notification Efforts

Pursuant to Congress' directive in SORNA, 42 U.S.C. § 16912(b), the Attorney General issued National Guidelines for Sex Offender Registration and Notification ("SORNA Guidelines") in July 2008. See 73 Fed. Reg. 38030 (July 2, 2008), 2008 WL 2594934 (F.R.)1. In issuing these Guidelines, the Attorney General noted that the effectiveness of registration and notification systems in states and other non-federal jurisdictions "depends on . . . effective arrangements for tracking of registrants as they move among jurisdictions," and that without such tracking, a registered sex offender could "simply disappear from the purview of the registration authorities by moving from one jurisdiction to another." 73 Fed. Reg. at 38045. The original SORNA Guidelines were in large part aimed at strengthening the nationwide network of registration programs in order to avoid that result. Id.

Moreover, while "[a] sex offender who moves to a foreign country may pass beyond the reach of U.S. jurisdictions," including any jurisdiction's registration requirements, "effective tracking of such sex offenders remains a matter of concern to the

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United States." Id. at 38066. Not only may such sex offenders return to the United States, but, as part of any "cooperative efforts between the Department of Justice" (including the USMS) and agencies of foreign countries, "foreign authorities may expect U.S. authorities to inform...

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