Menges v. Wasden

• Decision Date: 08 September 2021
• Docket Number: Case No. 1:20-cv-00452-BLW
• Citation: 558 F.Supp.3d 892
• Parties: John DOE and Randall Menges, Plaintiff, v. Lawrence WASDEN, Attorney General of the State of Idaho; Kedrick Wills, Colonel of the Idaho State Police, Leila McNeill, Bureau Chief of the Idaho State Police Bureau of Criminal Investigation; and the Individual Members of the Idaho Code Commission, all of the above in their official capacities, Defendants.
• Court: U.S. District Court — District of Idaho

558 F.Supp.3d 892

John DOE and Randall Menges, Plaintiff,

v.Lawrence WASDEN, Attorney General of the State of Idaho; Kedrick Wills, Colonel of the Idaho State Police, Leila McNeill, Bureau Chief of the Idaho State Police Bureau of Criminal Investigation; and the Individual Members of the Idaho Code Commission, all of the above in their official capacities, Defendants.

Case No. 1:20-cv-00452-BLW

United States District Court, D. Idaho.

Signed September 8, 2021

Debra Anne Groberg, Nevin, Benjamin, McKay & Bartlett LLP, Richard Alan Eppink, American Civil Liberties Union of Idaho Foundation, Boise, ID, Matthew Daniel Strugar, Pro Hac Vice, Law Office of Matthew Strugar, Los Angeles, CA, for Plaintiff John Doe.

Matthew Daniel Strugar, Law Office of Matthew Strugar, Los Angeles, CA, for Plaintiff Randall Menges.

Leslie Marie Hayes, Stephanie Nemore, Office of the Attorney General State of Idaho, Boise, ID, for Defendants.

AMENDED MEMORANDUM DECISION AND ORDER (REDACTED)

B. Lynn Winmill, United States District Court Judge

INTRODUCTION

John Doe¹ and Randall Menges challenge the requirement that they register for the Idaho Sex Offender Registry because of their Doe's conviction under [redacted]’s Crime Against Nature statute and Menges's conviction under Idaho's Crime Against Nature statute respectively. Defendants have filed a motion to dismiss for failure to state a claim and lack of jurisdiction.² Plaintiffs have filed a motion for a preliminary injunction. The Court held a hearing on April 7, 2021. For the reasons that follow the Court will grant Defendants’ motion to dismiss in part, deny it in part, grant Plaintiffs’ motion for preliminary injunction, and enjoin the state from requiring Doe or Menges from registering as sex offenders in Idaho.

BACKGROUND

A. John Doe

In [redacted] John Doe pled guilty to a charge filed under [redacted]’s Crime Against Nature statute.³ The Information charging John Doe stated that Doe "unlawfully, willfully, and feloniously did commit a crime against nature on [his wife], to wit: oral sex."

Doe subsequently moved to Idaho and was arrested on charges unrelated to this current action. When Doe was released from custody in 2020, Idaho State Police, Bureau of Criminal Identification notified him that he was required to register as a sex offender pursuant to Idaho's Sex Offender Registration Notification and Community Right to Know Act (SORA), I.C. § 18-8301 et seq. , due to his prior conviction in [redacted].

It is not entirely clear how the ISP determined Doe's [redacted] conviction was substantially equivalent to Idaho's crime against nature. Pursuant to the Idaho Administrative Procedure Act (IDAPA) Rule 11.10.03.012 and Idaho Code § 18-8304(1)(b), the Bureau of Criminal Identification, Idaho Sex Offender Registry (SOR) has the authority to conduct a criminal history search to determine whether the statute that Doe was previously convicted under was "substantially equivalent" to an offense in Idaho that would require him to register. Defendants suggest that Bureau Chief of SOR, Leila McNeil, obtained judgments, convictions, charges, and police reports related to Doe's [redacted] conviction. However, none of the underlying documents were referenced in the notice sent to Doe. Instead, the notice simply states that "[t]he criminal elements contained in [redacted]’s crime against nature statute] are substantially equivalent to those found in Idaho Code § 18-6605,⁴ Crime Against Nature." Based on ISP's determination, Doe was ordered to register as a sex offender in Idaho for life pursuant to Idaho Code § 18-8304(1)(b).

B. Randall Menges

In 1993, Randall Menges was living at a 12-bed youth foster ranch in Gem County, Idaho. At the age of 18, Menges engaged in consensual sexual intercourse with two other male residents of the ranch. Both were 16 years old at the time. Gem County then charged Menges with three violations of Idaho's crime against nature statute. Menges pled guilty to one count of committing a crime against nature, I.C. § 18-6605. As a result of his conviction, Menges is required to register as a sex offender for life pursuant to Idaho Code § 18-8304(1)(a).

C. Statutory Structure

1. History of I.C. § 18-6605

Idaho's Crime Against Nature statute, a relic of the common law, has been in existence since Idaho was a territory. The revised codes of 1887 held that "[e]very person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the Territorial prison not less than 5 years."⁵ Ex parte Miller , 23 Idaho 403, 405, 129 P. 1075 (1913) (quoting sec. 6810, Rev. Stats. of 1887). In 1913, the Idaho Supreme Court made its first foray into limiting the effect of the law when it found that the punishment for having oral or anal sex could not include the death penalty but could include life imprisonment. Id. at 406, 129 P. 1075.

Codified in the early 1970s, the current version of the Crime Against Nature statute, I.C. § 18-6605, is identical to its territorial predecessor aside from updating the word "Territorial" to "state" prison. However, the Idaho Supreme Court has limited the application of the statute to ensure that its enforcement complies with the United States Supreme Court's decision in Lawrence v. Texas , 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).

In May 2020, the Idaho Supreme Court noted that section 18-6605 does not contain an express requirement that the prohibited sexual contact be non-consensual. State v. Gomez-Alas , 167 Idaho 857, 864, 477 P.3d 911 (2020). Nonetheless, in order to comply with Lawrence , the court proceeded to judicially impose a consent requirement. Id. , at 864-65, 477 P.3d 911 ("Thus, Idaho's statute ‘prohibiting the infamous crime against nature may not be constitutionally enforced to prohibit private consensual [sexual] conduct.’ ") (alteration in original) (emphasis in original) (quoting State v. Holden , 126 Idaho 755, 761, 890 P.2d 341 (Ct. App. 1995) ). Therefore, the Idaho Supreme Court now reads § 18-6605 to apply only to non-consensual sexual conduct.

2. Idaho's Sexual Offender Registration Notification and Community Right-to-Know Act

Idaho passed its initial sex offender registration law, the Sex Offender Registration Act, in 1993. I.C. § 18-8301 et seq. (1993). In 1998, the Legislature repealed that act and replaced it with the Sexual Offenders Registration Notification and Community Right-to-Know Act, which, in amended form, continues to operate today. I.C. § 18-8301 et seq.

a. Determining "substantial equivalence" under § 18-8304(1)(b)

SORA applies to any persons convicted in Idaho of a laundry list of sexual crimes, including Idaho's Crime Against Nature statute. I.C. § 18-8304(1)(a). In addition to the specifically enumerated Idaho crimes that require registration, section 18-8304(1)(b) requires any person to register who moves to Idaho and has been convicted of an out-of-state sex crime that is "substantially equivalent" to an offense listed in section 18-8304(1)(a). See Doe v. State , 158 Idaho 778, 782–83, 352 P.3d 500 (2015).

Responsibility for determining whether an out-of-state sex crime conviction is "substantially equivalent" to an 18-8304(1)(a) crime falls on ISP's Bureau of Criminal Identification. IDAPA 11.10.03.012. In order to determine substantial equivalence, the Bureau is permitted to use "the police report (of the incident related to the sex offense), indictment or information or other lawful charging document, judgment or order (of sex offense conviction), psychosexual evaluation report, and order of probation." Id. The Bureau must make a substantial equivalency determination within sixty days of receiving the required documents. Id. The determination is considered a declaratory ruling under state law and judicial review of the decision is available in state court. Id. If a positive finding is made, the Bureau sends a Notice of Duty to Register to the relevant person, and that person has two working days to report to the County Sheriff for the county in which they reside.

b. Registration Requirements

Registration under SORA carries with it significant requirements and restrictions. The information that a registrant must provide to the State includes current and former names, including nicknames, pseudonyms, and ethnic or tribal names; email addresses, "instant messaging" addresses, and any other online identity or screen name used for electronic communications; complete physical description including scars and tattoos; date of birth; social security number; residential address and a physical description of the residence; name and address of any school the registrant attends; description and license plate number of any vehicle used for personal or employment use; telephone number; addresses of employment and volunteer positions; information related to any professional licenses; passport information; a photocopy of any driver's license or identification card; fingerprints; and a photograph. I.C. § 18-8305(1)(a–p). The Idaho State Police disseminate information collected from each registrant to the United States Attorney General, schools and public housing agencies in the area where the registrant resides, volunteer organizations that work with kids or vulnerable adults in the area where the registrant resides, and publishes it on a publicly accessible website. I.C. § 18-8324(1).

Restrictions on a registrant's individual freedoms include prohibitions on gaining employment at a day care center, group day care facility, or family day care home, I.C. § 18-8327(1) ; absent certain limited exceptions, from living within five hundred of a school used by children, I.C. § 18-8329(1)(d) ; and from picking up or dropping off their own children at school without prior notification and annual written approval of the school, I.C. § 18-8329(2).

Further, the registrant must pay an $80 annual fee. I.C. § 18-8307(2). And, failure to register is punishable by up to 10 years of...