Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Does v. Wasden

United States District Court, D. Idaho

May 17, 2018

JOHN and JANE DOES 1-134, Plaintiffs,
LAWRENCE WASDEN, Attorney General of the State of Idaho, et al., Defendants.




         Pending before the Court is Defendants'[1] Motion to Dismiss. Dkt. 15. Once the parties briefed the Motion, the Court held oral argument and took the matter under advisement. After fully considering the arguments presented by the parties, for the reasons set forth below, the Court finds good cause to GRANT the Motion and dismiss the Complaint. However, the Court will grant Plaintiffs leave to amend their complaint to cure deficiencies outlined in this decision. Simply put, Plaintiffs must identify actual harms suffered by one or more “Does” and present sufficient facts upon which the Court can make a reasoned decision.


         Plaintiffs, Does 1-134, filed this lawsuit challenging the constitutionality of Idaho's Sexual Offender Registration Notification and Community Right-to-Know Act (“SORA”);[2] namely, the 2001, 2009, and 2011 amendments.

         Plaintiffs are all individuals required to register under SORA. Specifically, it appears that all Does 1-134 are required to register for life under the Act because of their classification as recidivist, or because their underlying crimes have been classed as “aggravated offenses.”

         In their Complaint, Plaintiffs do not list particular causes of action as to specific individuals, but merely state that all plaintiffs suffer from a wide variety of constitutional depravations SORA has created, from which they request relief. Plaintiffs' causes of action are:

1. Due process violations under the Fourteenth Amendment because of SORA's vagueness, because it subjects sexual offenders “to new restrictions and requirements, regardless of any actual risk to society and without the possibility of any hearing and without any requirement by the State of Idaho to provide offenders with any notice of their classification or any new prohibitions or requirements, ” and because it “fails to further any legitimate governmental purpose.” Dkt. 4 ¶¶ 236, 237.
2. Free exercise of religion violations under the First Amendment, “[b]ecause churches and other places of worship fall within the places certain sex offenders may not ‘knowingly be' within five hundred (500) feet of under [SORA], regardless of the actual known risk posed by these offenders[.]” Id. ¶ 241.
3. Substantive due process violations under the Fourteenth Amendment, because SORA “impinges on their fundamental rights to free association, [to] travel, and to raise their children without undue governmental interference.” Id. ¶ 245.
4. Equal protection violations under the Fourteenth Amendment, because “the Idaho legislature has created two (2) separate but similarly situated groups, one (1) between fourteen (14) and eighteen (18) years of age [subject to the Juvenile Sex Offender Registration Notification and Community Right-to-Know Act (JSORA), Idaho Code §§ 18-8401 to -8414], and one (1) eighteen (18) years of age and older, members of each group having committed and been found guilty of one (1) or more of a group of included criminal offenses.” Id. ¶ 252.
5. Cruel and unusual punishment violations under, the Eighth Amendment, because “anyone convicted of a crime with any ‘sexual element' or any crime that is considered an ‘aggravated' offense, no matter when they were convicted, is considered a sex offender under [SORA] and is subject to community notification and registration requirements.” Id. ¶ 259.
6. Ex Post Facto Clause violations under Article I, Section 9, Clause 3, because “[t]he effect and intent of [SORA] are punitive and impose new punishments, including but not limited to the affirmative disability of having to register in person every twelve (12) months, banishment from their families and communities, on offenders convicted before their enactment.” Id. ¶ 263.
7. Double Jeopardy Clause violations under the Fifth Amendment, because SORA “impose[s] new punishments on persons previously convicted, and impose registration duties, community notification, and movement and residence restrictions based on the crime originally committed, rather than any actual risk of recidivism.” Id. ¶ 267.
8. Contracts Clause violations under Article I, Section 10, Clause 1 of the United States Constitution and Article I, Section 16 of the Idaho Constitution, [3] because SORA “operates as a substantial impairment to the preexisting contractual relationship between the state and Plaintiffs Guilty Plea Agreements by imposing new terms not negotiated which drastically increase, and, or require lifetime supervision, registration and community notification.” Id. ¶ 271.
9. Takings Clause violations under the Fifth Amendment, because SORA places “residential and movement restrictions on Plaintiffs, [and] unconstitutionally restricts Plaintiffs' property rights to the point that constitutes a regulatory taking requiring just compensation.” Id. ¶ 279.
10. Separation-of-powers violations under Article XI, Section 1 of the Idaho Constitution, because SORA “limits the judicial power of sentence finality as the law vacates existing court judgments regarding sex offenders' classifications, and community notification and reverses final court judgments setting the length of time that sex offenders must register.” Id. ¶ 283.
11. Police power violations under Article XI, Section 8 of the Idaho Constitution, because John Does 4, 7, 18, 53, 62, 80, 85, 100, 105 and 132 “had been unconditionally released from custody, probation/parole and any sex offender registration requirements prior to the enactment of Idaho SORNA 2001, 2009, 2011” and “were, therefore, not in any special relationship with the government of the State of Idaho at the time of the enactment of SORNA 2001, 2009, 2011.” Id. ¶ 287.

         Defendants filed the instant Motion to Dismiss seeking outright dismissal of some of Plaintiffs' claims on legal and statutory grounds. As to the remaining claims, Defendants ask the Court to require Plaintiffs to amend their Complaint to list more “as-applied” challenges so that Defendants know which individual plaintiffs actually suffered from which of the alleged constitutional violations.


         A motion to dismiss for failure to state a claim challenges the legal sufficiency of the claims stated in the complaint. Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011). “A complaint generally must satisfy the notice pleading requirements of Federal Rule of Civil Procedure 8(a)(2) to avoid dismissal under a Rule 12(b)(6) motion.” Id. (citing Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003)). “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests, '” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

         To sufficiently state a claim for relief and survive a 12(b)(6) motion, the pleading “does not need detailed factual allegations;” however, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Mere “labels and conclusions” or a “formulaic recitation of the elements of a cause of action will not do.” Id. Rather, there must be “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. In other words, the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In light of Twombly and Iqbal, the Ninth Circuit summarized the governing standard as follows: “In sum, for a complaint to survive a motion to dismiss, the nonconclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

         In deciding whether to grant a motion to dismiss, the court must accept as true all well-pleaded factual allegations in the pleading under attack. Iqbal, 556 U.S. at 663. A court is not, however, “required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

         When ruling on a motion to dismiss, the court must normally convert a Rule 12(b)(6) motion into one for summary judgment under Rule 56 if the court considers evidence outside of the pleadings. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). A court may consider certain materials, such as documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice, without converting the motion to dismiss into a motion for summary judgment. Id. at 908.

         In cases decided after Iqbal and Twombly, the Ninth Circuit has continued to adhere to the rule that a dismissal of a complaint without leave to amend is inappropriate unless it is beyond doubt that the complaint could not be saved by an amendment. See Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009).

         IV. ANALYSIS

         The Court will first address two topics of concern in this case: the distinction between facial and as-applied challenges and the legal doctrine of standing. Next, the Court will analyze the merits of each of Plaintiffs' claims under a facial theory and an as-applied theory. Finally, the Court will outline the claims it is dismissing, as well as the claims the Court will grant Plaintiffs leave to amend.


         When a petitioner seeks to challenge a statute as unconstitutional there are two types of challenges: “facial challenges” and “as-applied” challenges.

         Facial challenges seek to have a statute declared unconstitutional “on its face.” This standard presents an extremely high bar because a plaintiff must show that the statute is unconstitutional in all possible applications and situations. See Diaz v. Paterson, 547 F.3d 88, 101 (2d Cir. 2008) (finding “a facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”).

         In United States v. Salerno, 481 U.S. 739 (1987), the United States Supreme Court concluded that facial challenges are extremely difficult to prove and ought to be rare. Id. The justices, however, were deeply divided on what types of constitutional claims would warrant a facial challenge, when a facial challenge becomes ripe, and the level of scrutiny that should be applied to the challenged statute. Id.; See also, Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 236 (1994); Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1322 (2000).

         While courts and commentators have developed various opinions on how to approach facial challenges-including what degree of deference is given to Salerno-it is clear that in order to succeed on a facial challenge, a plaintiff must show that the law is unconstitutional in not just some, but in all situations:

Under United States v. Salerno, 481 U.S. 739 (1987), a plaintiff can only succeed in a facial challenge by “establish[ing] that no set of circumstances exists under which the Act would be valid, ” i.e., that the law is unconstitutional in all of its applications. . . . While some Members of the Court have criticized the Salerno formulation, all agree that a facial challenge must fail where the statute has a “‘plainly legitimate sweep.'”

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (citation omitted) (finding that “[i]n determining whether a law is facially invalid, we must be careful not to go beyond the statute's facial requirements and speculate about ‘hypothetical' or ‘imaginary' cases.”).

         As-applied challenges, on the other hand, do not look at the text, or face, of the statute, but rather argue that even if a law is valid on its face, it may nonetheless-as the name suggests-be unconstitutionally applied. The question in an as-applied challenge is whether the statute is unconstitutional when applied in a particular case. See Tsirelman v. Daines, 19 F.Supp.3d 438, 447-48 (E.D.N.Y. 2014), aff'd, 794 F.3d 310 (2d Cir. 2015). Specific facts are critical. As-applied challenges, however, are somewhat of a catch 22.

         One commentator explains why:

Sometimes it is said of a statute which is not void ‘on its face' that it nevertheless is invalid as applied. This is a malapropism, however, for a provision which is only invalid as applied in the facts of a particular case is possibly capable of valid application in another fact situation. In reality, it is only the implementing action which purports to apply the legislation and not the provision itself which is invalid in such cases.

         1 Sutherland, Statutory Construction (Sands, 4th ed. 1985) § 2.06, pp. 31-32 (footnote omitted).[4] This very dichotomy is what puzzles the Court at the outset of this case.

         Here, Plaintiffs cannot establish a facial challenge to SORA generally because the law has a “plainly legitimate sweep” and is applicable to thousands of Idahoans who are required to register for a time, but then in due course are no longer required to register. In other words, there are numerous circumstances under which the Act is valid and constitutional. Plaintiffs in this case make up the limited group of offenders who have underlying “aggravated offenses, ” or who have been designated recidivists by statute, and thus must register for life. It is only as to these individuals that Plaintiffs' challenges could apply.[5] Plaintiffs, unfortunately, have not pleaded any specific as-applied challenges.[6] Therefore, amendment is necessary for the Court to make an appropriate determination as to those claims.

         B. STANDING

         Fundamentally intertwined with this discussion regarding as-applied challenges is the legal topic of standing. This too is of great concern to the Court.

         Article III, Section 2 of the United States Constitution “confines the judicial power of federal courts to deciding actual ‘Cases' or ‘Controversies.'” Hollingsworth v. Perry, 570 U.S. 693, 704 (2013). The United States Supreme Court has long held that

[t]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61(1992) (internal quotation marks and citations omitted). Here, Plaintiffs have failed to meet the first requirement of standing. As currently pleaded, Plaintiffs have not suffered any injury in fact. With the exception of Plaintiffs' twelfth cause of action, Plaintiffs have not tied any particular Doe to any particular alleged harm. This is not appropriate. One cannot simply name a large group of Plaintiffs, allege a dozen causes of actions, and expect the Court to figure out which plaintiffs have suffered which harms.[7]

         Plaintiffs allege that all of them have suffered from certain aspects of SORA generally-such as the reporting requirements, or the negative aspects of public registration-however, these generalizations only give Plaintiffs standing for facial challenges, if even that. As currently pleaded, Plaintiffs' do not have standing for any as-applied challenges.[8]

         The broad allegations of Plaintiffs' Complaint fail as a matter of law-most have already been litigated and denied in prior cases-and without any as-applied challenges, the Court can only speculate as to what harms have actually occurred in this case. This is one of the main reasons the Court will dismiss with leave to amend. Plaintiffs have set this case up as a quasi-class action by listing 134 plaintiffs. While possibly done for emphasis, the Court instead needs accuracy.

         As outlined below, the Court will dismiss all of Plaintiffs' facial challenges to SORA. Plaintiffs cannot meet their burden of proving that SORA is unconstitutional in all its applications-or that any of the identified provisions or requirements are unconstitutional in all circumstances. Additionally, the Court will dismiss some claims without leave to amend because they fail to state a valid as-applied challenge, or no as-applied challenge is legally cognizable.

         Finally, the Court will dismiss the remaining claims in order for Plaintiffs to amend their Complaint and state valid as-applied challenges tying specific Plaintiffs to specific causes of action. After amendment, the Court will be able to concretely determine standing and assess whether the amended complaint can survive a Rule 12(b)(6) motion.

         The Court next turns to the merits of Plaintiffs' Complaint.


         There is no shortage of United States Supreme Court cases, Ninth Circuit Cases, Federal District Cases, and (for the purposes of this case) Idaho State cases that discuss the constitutionally of sex offender registration acts. Although there have been minor deviations for certain fact specific circumstances, the vast majority of these opinions have upheld the various acts as constitutional.

         Plaintiffs and Defendants have taken different approaches on how they elected to group the claims in this case. To avoid confusion, the Court will simply address each claim one by one and discuss its validity as a facial challenge and then as an as-applied challenge.

         The outcome of Claim 6 is determinative as to several of the other “punishment” based claims; therefore, the Court will address it first. The Court will then take up the remaining claims in numerical order.

         CLAIM 6 - EX POST FACTO

Ex Post Facto Clause violations under Article I, Section 9, Clause 3, because “[t]he effect and intent of [SORA] are punitive and impose new punishments, including but not limited to the affirmative disability of having to register in person every twelve (12) months, banishment from their families and communities, on offenders convicted before their enactment.” Dkt. 4, ¶ 263.

         1. Facial Challenge

         In this cause of action, Plaintiffs' state that SORA violates the Ex Post Facto Clause of the United States Constitution (Article I, Section 9, Clause 3) because the law is retroactive and punishment based. The United States Supreme Court in Smith v. Doe, rejected this exact ex post facto challenge to the Alaska Sex Offender Registration Act and courts have relied on its analysis in virtually all subsequent cases that have dealt with sex offender registration act challenges.

The framework for our inquiry . . . is well established. We must “ascertain whether the legislature meant the statute to establish ‘civil' proceedings.” If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is “ ‘so punitive either in purpose or effect as to negate [the State's] intention' to deem it ‘civil.' ”

538 U.S. 84, 92 (2003) (internal citations omitted). Ultimately in Smith, the Court found that creating a law that alerts the public to the risk of sex offenders in their community is legitimate and nonpunitive in nature. Neither the purpose, nor the effect, was unconstitutional. See generally id.

         Like Plaintiffs in this case, the Plaintiff in Smith argued that the state cannot group people together to make blanket determinations. Id. at 102-03. The Supreme Court disagreed. In response to the argument that specific classes of individuals, such as those convicted of certain offenses, were targeted by Alaska's SORA and subjected to unfair treatment, the Supreme Court reasoned that “the Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences.” Id. at 103-04. The Court also reiterated that “the State's determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment under the Ex Post Facto Clause.” Id.

         Following Smith v. Doe, numerous Circuits have taken up related issues regarding the constitutionality of sex offender registration acts and various tangential arguments put forth by various plaintiffs in an effort to distinguish Smith and have their particular state's act deemed unconstitutional as an ex post facto violation. Effectively, all of these arguments have failed. Two of particular note-because plaintiffs raise the same arguments here-are Litmon v. Harris and U.S. v. Elk Shoulder.

         In Litmon v. Harris, the Ninth Circuit rejected an ex post facto challenge to a California statute which required lifetime in-person reporting by sexually violent predators. 768 F.3d 1237, 1243 (9th Cir. 2014). The Litmon Court explained “[t]here is no reason to believe that the addition of such a requirement would have changed the outcome [of Smith]. In fact, we held in ACLU of Nevada v. Masto, that an in-person, 90- day, lifetime ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.