by Sam Rutherford

The U.S. Court of Appeals for the Sixth Circuit overturned a ruling by the U.S. District Court for the Middle District of Tennessee, enjoining enforcement of Tennessee’s 2004 Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act (“Act”) in its entirety. Instead, the Court held that retroactive application of the Act’s most restrictive residency, travel, and in-person reporting requirements violate the Ex Post Facto Clause of the U.S. Constitution.

Background

Tennessee’s sex offender registration laws have gone through multiple iterations over the years. Originally enacted in 1994, the Sexual Offender Registration and Monitoring Act (“SORMA”) required individuals convicted of certain sexual offenses to register with the Tennessee Bureau of Investigation (“TBI”) within 10 days of release without supervision from probation, parole, or incarceration and to update essential information with the TBI regularly thereafter.

SORMA imposed basic reporting and registration requirements on most prior sexual offenders, all information was kept confidential with the TBI, and reporting was done by mail. SORMA was amended over the years several times and for the first time in 2003, began restricting registrants from living or working within 1,000 feet of a school or other childcare facility or the home of their victims or victims’ family members.

In 2004, however, the Tennessee General Assembly repealed SORMA and replaced it with the Act. This law has also been amended numerous times over the past 20 years to make it more restrictive. The Act as currently written requires registrants to: (1) register in person every quarter and to report any travel or change of address within 48 hours, (2) provide the TBI with their name, address, phone number, email address, place of employment, and vehicle information, which are then made available to the public, (3) always carry photo ID, (4) not live with more than one other registered individual, and (4) not live or work within 1,000 feet of a school or other children’s facilities.

The Act also permits law enforcement to notify residents when a registrant lives within the area and allows libraries to ban all registrants. Finally, the Act excludes all registrants, regardless of offense type, from schools, playgrounds, and other public facilities if the registrant has reason to believe that children are present and prohibits them from standing or sitting idly within 1,000 feet of such locations without a legitimate reason.

Plaintiffs in this case, eight men convicted of sex offenses between 1982 and 1994, filed suit in the U.S. District Court for the Middle District of Tennessee for declaratory and injunctive relief against Governor William Byron Lee and TBI Director David B. Rausch, contending that enforcement of the Act against them violates the Ex Post Facto Clause. The District Court agreed and granted plaintiffs’ motion for summary judgment, permanently enjoining enforcement of the Act against them. The District Court concluded that retroactive application of the Act to registrants convicted before its enactment violates the Ex Post Facto Clause because its “‘basic mechanism and effects’” are similar to parole or probation and therefore amounts to punishment.

Analysis

The first issue the Court addressed was whether the plaintiffs possessed standing to sue the governor and TBI director. To establish standing to sue, plaintiffs had to show that: “(1) they suffered an ‘injury in fact,’ (2) the injury is ‘fairly … trace[able]’ to conduct of Governor Lee and Director Rausch, and (3) the court’s powers of decision would provide them redress.” Quoting Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992). Relying on Universal Life Church Monastery Storehouse v. Nabors, 35 F.4th 1021 (6th Cir. 2022), the Court concluded that plaintiffs lacked standing to sue the governor because his general duty to enforce criminal laws consistent with his executive powers is insufficient to invoke federal jurisdiction. However, they did possess standing to sue Director Rausch because state law tasks him with “the administration of Tennessee’s sex offender statutes,” which “serves to fulfill all three elements of standing; a potential injury-in-fact flowing from his administration of the statute, which is traceable to him through his responsibility, and redressable by a court order.”

The Court next addressed the merits of plaintiffs’ Ex Post Facto claim. The U.S. Constitution provides that “No State shall … pass any … ex post facto Law.” U.S. Const. art. I, § 10, cl. 1. A law qualifies as ex post facto if it “changes the legal consequences of acts committed before its effective date.” Doe v. Bredesen, 507 F.3d 998, 1003 (6th Cir. 2007). But not all retroactive laws violate the Ex Post Facto Clause. Only a retroactive law that imposes punishment as opposed to “a regulatory scheme that is civil and nonpunitive” is prohibited. Bredesen; see also Kansas v. Hendricks, 521 U.S. 346 (1997). The legislative designation of a law is given significant deference and can only be overcome if “the plaintiff can show ‘by the clearest proof’ that ‘what has been denominated a civil remedy’ is, in fact, ‘a criminal penalty.’” Doe v. Snyder, 834 F.3d 696 (6th Cir. 2016) (quoting Smith v. Doe, 538 U.S. 84 (2003)).

The Court explained that determining whether a law designated as civil is nonetheless punitive requires an evaluation of the so-called Mendoza-Martinez factors. See Smith (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)). These factors require a reviewing court to analyze whether the challenged law (1) “has been regarded in our history and traditions as a punishment,” (2) “imposes an affirmative disability or restraint,” (3) “promotes the traditional aims of punishment,” (4) “has a rational connection to a nonpunitive purpose,” and (5) “is excessive with respect to this purpose.”

Courts have repeatedly upheld retroactive application of sex offender registration laws that require registrants to provide personal information that is then made publicly available by concluding that they are non-punitive. See Smith; Bredesen; Cutshall v. Sundquist, 193 F.3d 466 (6th Cir. 1999). But none of these laws restricted where registrants could live, work, or move, noted the Court. In contrast, the Snyder Court concluded that portions of a Michigan registration law were punitive under the Mendoza-Martinez factors because it prohibited registrants from living, working, or loitering within 1,000 feet of a school and required all registrants to appear in person immediately to update information such as new vehicles or internet identifiers (e.g., a new email account). This law was deemed punitive and therefore could not be applied retroactively to registrants who committed crimes before its enactment because it amounted to “banishment and public shaming, and [had] a number of similarities to parole/probation.” Snyder.

Plaintiffs in this case contended that the Act should be struck down under Snyder because it also retroactively imposes significant restrictions on where they may live, work, and travel. The Court partially agreed with plaintiffs but refused to strike all provisions of the Act as violating the Ex Post Facto Clause. The provisions requiring registrants to report their personal information to law enforcement, which is then made publicly available may be retroactively applied to registrants who committed crimes before the Act became law because under Smith, Bredesen, and Cutshall, they are considered non-punitive.

However, under Snyder, portions of the Act that restrict where registrants can live, work, and loiter, that categorize them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that require time-consuming and cumbersome in-person reporting are considered punitive and therefore may not be applied retroactively to the plaintiffs.

The Court explained, “Tennessee’s sex-offender registration laws are broad and complicated, regulating offenders in many ways previously endorsed by the courts, but also in ways thrown into question by Snyder.” Because the District Court failed to analyze each provision of the Act to determine which portions are and are not punitive and instead struck the entire Act as ex post facto, the Court was compelled to reverse and remanded for the District Court to apply the holding in Snyder on a provision-by-provision basis with respect to the Act.

Conclusion

Accordingly, the Court reversed the District Court’s grant of summary judgment and permanent injunction enjoining enforcement of the Act against the plaintiffs and remanded the case for further proceedings consistent with its opinion. See: Doe v. Lee, 102 F.4th 330 (6th Cir. 2024).   

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