John v. State

• Decision Date: 16 August 2010
• Docket Number: Nos. 4:10CV3004,Nos. 8:09CV456,Nos. 4:10CV3005,Nos. 4:09CV3266,s. 8:09CV456,s. 4:09CV3266,s. 4:10CV3004,s. 4:10CV3005
• Citation: 734 F.Supp.2d 882
• Parties: John and Jane DOE 1-36, et al., Plaintiffs, v. State of NEBRASKA, et al., Defendants. John Doe, Plaintiff, v. Nebraska State Patrol, et al., Defendants. John Doe, Plaintiff, v. State of Nebraska, et al., Defendants. John Doe, Plaintiff, v. State of Nebraska, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

734 F.Supp.2d 882

John and Jane DOE 1-36, et al., Plaintiffs,

v.State of NEBRASKA, et al., Defendants.

John Doe, Plaintiff,

v.Nebraska State Patrol, et al., Defendants.

John Doe, Plaintiff,

v.State of Nebraska, et al., Defendants.

John Doe, Plaintiff,

v.State of Nebraska, et al., Defendants.

Nos. 8:09CV456, 4:09CV3266, 4:10CV3004, 4:10CV3005.

United States District Court, D. Nebraska.

Aug. 16, 2010.

Jason E. Troia, Joshua W. Weir, Rodney C. Dahlquist, Jr., Stuart J. Dornan, Thomas J. Monaghan, Dornan, Lustgarten Law Firm, Omaha, NE, for Plaintiff.

Corey M. O'Brien, David D. Cookson, Katherine J. Spohn, Nebraska Attorney General's Office, Michael E. Thew, Lincoln, NE, Kimberly M. Watson, Dakota City, NE, Jeffrey J. Lux, Timothy K. Dolan, Omaha, NE, Todd D. Wilson, Todd Wilson, P.C., Elwood, NE, Michael A. Smith, Papillion, NE, for Defendant.

MEMORANDUM AND ORDER

RICHARD G. KOPF, District Judge.

At issue in these consolidated cases is the constitutionality of amendments to Nebraska's Sex Offender Registration Act that became operative January 1, 2010.¹On cross-motions for summary judgment, I find there are genuine issues of material fact regarding three new sections of the Act which will necessitate a trial, but in all other respects I find as a matter of law that the legislation does not violate either the United States Constitution or the Nebraska Constitution.

BACKGROUND

Case No. 8:09CV456 was filed in this court on December 16, 2009, by twenty convicted sex offenders (John and Jane Does 1-20) and thirteen of their spouses, children, parents, and employers (John and Jane Does A-K).In an amended complaint filed on March 15, 2010, sixteen additional convicted sex offenders (John Does 21-36) were added as Plaintiffs.All Plaintiffs allegedly reside in Nebraska.Named as Defendants are the State of Nebraska, the Nebraska Attorney General, the Nebraska State Patrol and its Superintendent, county attorneys and sheriffs for each of Nebraska's ninety-three counties, and police chiefs for the cities of Lincoln, Omaha, Papillion, Fremont, Bennington, Ralston, Columbus, and York, Nebraska.Individual Defendants are only sued in their official capacity.

Plaintiffs in Case No. 8:09CV456 allege that Nebraska's Sex Offender Registration Act (SORA), as amended, violates several provisions of the United States Constitution, including: (1) the Ex Post Facto Clause of Article I, § 10;(2) the Fifth Amendment's Double Jeopardy Clause; (3) the Eighth Amendment's prohibition against cruel and unusual punishment; (4) the Fourth Amendment's prohibition against unreasonable searches and seizures; (5) the Fourteenth Amendment's Due Process Clause; (6) the Fourteenth Amendment's Equal Protection Clause; (7) the First Amendment's guarantee of free speech; and (8) the Contracts Clause of Article I, § 10.Plaintiffs also allege violations of eight corresponding provisions of the Nebraska Constitution, plus violations of Article III, § 18, which prohibits special legislation, and Article II, § 1, which mandates the separation of powers.

Case No. 4:09CV3266 was filed in the District Court of Douglas County, Nebraska, on December 24, 2009, by a convicted sex offender (John Doe) who allegedly isemployed in Douglas County.On December 28, 2009, the action was removed to federal court by Defendants, who include the Nebraska State Patrol and its Superintendent, the Nebraska Attorney General, the Douglas County Attorney, the Douglas County Sheriff, and the Omaha Police Chief.

Plaintiff's complaint in Case No. 4:09CV3266 is substantially similar to the amended complaint filed in Case No. 8:09CV456, except that it does not include claims that the amended Act violates the Equal Protection Clause, constitutes special legislation, or violates the Contracts Clause.

Case No. 4:10CV3004 was filed in the District Court of Lincoln County, Nebraska, on January 4, 2010, by an individual (John Doe) who allegedly is required by the amended Act to register as a sex offender in Lincoln County.On January 7, 2010, the action was removed to federal court by Defendants, who include the State of Nebraska, the Nebraska Attorney General, the Nebraska State Patrol and its Superintendent, the Lincoln County Attorney, the Lincoln County Sheriff, and the Chief of Police for the City of North Platte, Nebraska.

Plaintiff in Case No. 4:10CV3004 does not claim any violations of the United States Constitution, but he alleges the amended Act violates the same eight provisions of the Nebraska Constitution that are involved in Case No. 4:09CV3266, namely: (1)Article I, § 16(ex post facto law);(2)Article I, § 12(double jeopardy);(3)Article I, § 9(cruel and unusual punishment);(4)Article I, § 7(unreasonable search and seizure);(5)Article I, § 3(due process);(6)Article I, § 5(free speech);(7)Article II, § 1(separation of powers); and (8)Article I, § 16(contracts clause).

Case No. 4:10CV3005 was filed in the District Court of Sarpy County, Nebraska, on December 31, 2009, by a convicted sex offender who allegedly resides in Sarpy County.Defendants removed the action to federal court on January 8, 2010.Defendants include the State of Nebraska, the Nebraska Attorney General, the Nebraska State Patrol and its Superintendent, the Sarpy County Attorney, and the Sarpy County Sheriff.

As in the preceding case, Plaintiff in Case No. 4:10CV3005 only alleges violations of the Nebraska Constitution.His complaint contains seven causes of action which are identical to the first seven claims alleged in Case No. 4:10CV3004.

These four cases were consolidated for all purposes, including trial and discovery, on January 21, 2010.²Case No. 8:09CV456 was designated as the "lead case."Because the amended complaint filed in Case No. 8:09CV456 contains every constitutional claim that is alleged in the other three cases, in my discussion of those claims I will cite only to that pleading.

Plaintiffs in Case Nos. 8:09CV456, 4:09CV3266, and4:10CV3005 are represented by the same counsel, and have filed a joint response to Defendants' motion for summary judgment.³They have also jointly filed a motion for summary judgment against Defendants.Plaintiff inCaseNo. 4:10CV3004 is represented by different counsel, who has neither responded to Defendants' motion for summary judgment nor filed a cross-motion.⁴

The Challenged Legislation

Plaintiffs seek to prohibit enforcement of parts of Legislative Bills 97 (LB 97) and 285 (LB 285), which were passed by the Nebraska Legislature and approved by the Governor in May 2009.LB 97 was enacted first.

Among other things, LB 97 amended Sections 29-4001,29-4003,29-4006,29-4007, and29-4008 of Nebraska's Sex Offender Registration Act (SORA).SeeNebraska Laws 2009, LB97 §§ 23, 25, 26, 27, 28.LB 97 also created two new statutes, which are codified as Neb.Rev.Stat. §§ 28-322.05and29-4001.01.SeeNebraska Laws, LB 97, §§ 14, 24.Section 28-322.05 is a new criminal statute(unlawful use of the Internet by a prohibited sex offender), while Section 29-4001.01 is a new definitional statute for SORA.

LB 285 made further amendments to SORASections 29-4003(applicability of the Act), 29-4006 (registration format), and 29-4007 (notification), and also amended SORASections 29-4004(registration procedure), 29-4005 (registration duration), 25-4009 (information not confidential), 29-4011 (violation penalties), and 29-4013 (rules and regulations).SeeNebraska Laws 2009, LB 285, §§ 4 through 11.In addition, LB 285 amended Sections 14and24 of LB 97.SeeNebraska Laws 2009, LB 285, §§ 1, 3.Finally, LB 285 outright repealed SORASection 29-4010(expungement procedure).SeeNebraska Laws 2009, LB 285, § 17.

Appended to Defendants' brief is a table ("Appendix II, Sex Ofeender [sic] Registration Law Comparison") that summarizes the amendments made to SORA by LB 97 and LB 285.(Filing 339-2)For ease of reference, I have attached the table to this opinion as Attachment B.⁵Defendants have also appended to their brief a table comparing Nebraska's registration requirements to federal requirements established by Title I of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, also known as the Sex Offender Registration and Notification Act ("SORNA").⁶This detailed and helpful table ("Appendix I, Sex Ofeender [sic]Registration Law Comparison-Adam Walsh Act") is attached to this opinion as Attachment C.⁷

SORNA, which was enacted on July 27, 2006, requires every jurisdiction to maintain a sex offender registry conforming to federal requirements or else lose federal funding.See42 U.S.C. §§ 16912,16925.As also required by SORNA, 42 U.S.C. § 16912(b), the Attorney General of the United States has published guidance to interpret and implement the law.SeeThe National Guidelines for Sex Offender Registration and Notification,73 Fed. Reg. § 38030-01(July 2, 2008).The National Guidelines make it clear that SORNA sets a floor and not a ceiling for the states.That is, while the states must enact the minimum federal requirements, "SORNA does not bar jurisdictions from adopting additional regulation of sex offenders for the protection of the public, beyond the specific measures that SORNA requires."National Guidelines,at 38034.

The Attorney General has also made it clear that SORNA applies to sex offenders whose convictions occurred prior to the adoption of SORNA, stating:

The applicability of the SORNA requirements is not limited to sex offenders whose predicate sex offense convictions occur following a jurisdiction's implementation of a conforming registration program.Rather, SORNA's requirements took effect when SORNA was enacted on July 27, 2006, and they have applied since that time to all sex offenders, including those whose convictions predate SORNA's enactment.See72 FR 8894, 8895-96(Feb. 28, 2007);28 CFR 72.3.The application of the SORNA standards to sex offenders whose convictions predate SORNA creates no ex post facto problem "because

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