by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit reversed the U.S. District Court for the District of Idaho’s dismissal of a lawsuit challenging Idaho’s Sexual Offender Registration Notification and Community Right-to-Know Act, Idaho Code § 18-8301 et seq. (“SORA”).

In July 1993, Idaho initially passed a law requiring persons convicted of specific sex crimes to register with their local sheriff. In 1998, SORA was passed that extensively expanded that law. It added crimes to the list of offenses for which registration was required. SORA also created a central registry of sex offender information made available to the public. And it required all registrants to undergo a psychosexual evaluation. Registrants convicted of specific enumerated offenses and found to pose a risk were deemed “violent sexual predators” (“VSP”). All registrants, except for those designated VSP, could petition a district court after 10 years for exemption from SORA’s requirements. After a hearing, the petitions are granted unless cause is shown to extend the registration period.

Violations of SORA’s requirements are felony offenses punishable by up to five years in prison and a $5,000 fine. If the noncompliant registrant was on some form of supervised release, the violation can result in revocation and return to confinement to serve the underlying sentence.

SORA is applied retroactively to any person convicted of a newly eligible offense after July 1, 1993. With the exception of the years 2003 and 2007, Idaho’s legislature expanded SORA via amendments each year until 2013 and retroactively applied those amendments.

Amendments included increasing the number of offenses requiring compliance; a new list of aggravated offenses that barred a registrant from petitioning for removal; creating a misdemeanor offense for any registrant found within 500 feet of school buildings or grounds when minors are present (this prohibition also applies to the location of any registrant’s residence and to registrants’ churches if the church is used as a school and posts a notice it is used as such); and requiring registrants to provide advance notice of any travel lasting longer than seven days in addition to notifying law enforcement of their presence within the jurisdictions they travel to. The 2011 amendment is particularly onerous. This amendment made registration for life the default or standard and removal after 10 years became the exception.

134 men and women, identified as John and Jane Does 1 - 134 (“Plaintiffs”), who either previously had not been required to register or were previously eligible to petition to be released from SORA’s requirements, filed suit against several state officials, including Lawrence Wasden, the Attorney General of Idaho (“Defendants”). The suit alleged, inter alia, that retroactive application of the amendments violate the ex post facto clause, the free exercise of religion, the Eighth Amendment, and the double jeopardy clause.

The Defendants filed a Rule 12(b) motion to dismiss, which the district court granted. The court determined that a facial ex post facto challenge is foreclosed by Smith v. Doe, 538 U.S. 84 (2003). And an “as applied” challenge also failed because the judge determined that Plaintiffs failed to meet the “clearest proof” standard since Smith also held SORA was civil, not punitive, in nature. On these grounds, the district court also dismissed the Eighth Amendment and double jeopardy claims. Finally, the judge determined that even though Plaintiffs alleged they were prevented from attending religious services because their churches also operated as a schools, Plaintiffs failed to allege that the churches posted the requisite notice stating the church was used as a school. Consequently, Plaintiffs failed to state a free exercise claim. Plaintiffs appealed.

The Ninth Circuit observed that the district court erred because ex post facto claims based on the punitive effect of purportedly civil statutes cannot be construed as “as applied” challenges. Seling v. Young, 531 U.S. 250 (2001). Instead, courts must evaluate the law’s punitive effect based on a variety of factors – such as the terms of the statute, the obligations it imposes, and the foreseeable consequences of those obligations – in relation to the statute on its face. Young v. Weston, 344 F.3d 973 (9th Cir. 2003). A plaintiff need not present evidence regarding the statute as applied to him. Id.

The district court also erred in finding that Plaintiffs failed to meet the “clearest proof” standard, according to the Court. When a statute is expressly civil in intent, only the clearest proof is sufficient to override the legislature’s intent and render the putatively civil regulation a criminal penalty. Smith. But to survive a motion to dismiss, the Plaintiffs need only to plausibly allege that the statute is punitive in effect. Ashcroft v. Iqbal, 556 U.S. 662 (2009). Accepting all of the Plaintiffs’ allegations as true – as courts must do in a motion to dismiss proceeding – SORA’s restrictions on housing, employment, and travel, as well as criminal sanctions for violations demonstrated that Plaintiffs plausibly alleged the statute was punitive in nature.

Further, the Court ruled that the district court erred in finding that Smith foreclosed a finding that SORA was punitive in nature. Smith dealt only with the most common provisions of registration and notification. Neither Smith nor circuit precedent relied upon by the district court (see opinion for list of citations) considered retroactive application of requirements like those found in SORA’s amendments. Notably, the Sixth Circuit sustained an ex post facto challenge, holding that Smith doesn’t apply to Michigan’s sex offender law. Does #1 - 5 v. Snyder, 834 F.3d 696 (6th Cir. 2016). Michigan’s law had provisions similar to Idaho’s that were “something altogether different from and far more troubling than Alaska’s first-generation registry law.” Id. Because the district court’s erroneous ex post facto analysis was incorporated into its dismissal of the Eighth Amendment and double jeopardy claims, the Ninth Circuit concluded those dismissals were equally in error.

Finally, the Court concluded the dismissal of the free exercise claim was in error. When the district court found that Plaintiffs failed to allege their churches posted the requisite notice, the court failed to accept their allegations as true and construe all facts in the light most favorable to them. Because Plaintiffs alleged that attending church placed them in jeopardy of violating SORA, the district court was to infer, at this stage of the proceedings, that the requisite notices were posted.

The Ninth Circuit concluded that the district court’s order granting Defendants’ motion to dismiss as to these claims was in error. Accordingly, the Court reversed and remanded. See: Doe v. Wasden, 982 F.3d 784 (9th Cir. 2020). 

Subscribe today

Already a subscriber? Login

Related legal case