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Does v. Wasden

United States District Court, D. Idaho

April 5, 2019

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




         This represents Plaintiffs, Does 1-134 (hereinafter “Plaintiffs” or “Does”), second attempt to challenge the constitutionality of Idaho's Sexual Offender Registration Notification Act (“SORA” or the “Act”). The Court dismissed Plaintiffs' complaint in May, 2018. Dkt. 32. While the Court granted Plaintiffs leave to amend some of their as-applied challenges to SORA, it dismissed all facial challenges without leave to amend. The Court also held Plaintiffs could not amend certain causes of action because even as-applied challenges to such claims would fail. The Court allowed Plaintiffs to amend the rest of their constitutional claims to state appropriate as-applied challenges with specific plaintiffs and specific facts.

         In their new complaint, Plaintiffs add facts with respect to twelve defendants, but fail to tie such facts to specific constitutional violations, and also fail to allege essential details which would allow the Court to evaluate whether any of the as-applied challenges are plausible. In their briefing, Plaintiffs do not cite a single Idaho, District Court within the Ninth Circuit, Ninth Circuit, or Supreme Court case which would support an as-applied challenge to SORA, and also ignore most of the arguments raised in Defendants' Motion to Dismiss. Finally, at oral argument, Plaintiffs' attorney did not address any of Plaintiffs' as-applied challenges. Instead, Counsel exclusively argued an ex post facto challenge to SORA, despite the Court's previous holding that any facial ex post facto claim fails as a matter of law. The Second Amended Complaint does not plausibly allege any as-applied challenge to SORA and, therefore, must be dismissed.

         II. FACTS

         On September 22, 2016, Plaintiffs filed the instant suit to challenge the constitutionality of the 2001, 2009, and 2011 amendments to SORA. Idaho Code § 18-8301 et. seq. Among other things, the 2001 amendments to SORA ended the right of offenders who had been convicted of an “aggravated offense” to petition for release from registration requirements. At the time, the definition of “aggravated offense” included various sexual offenses committed against a victim less than twelve years old. The 2001 amendments also empowered the Idaho State Police to make the sex offender registry available to the public via the internet. In 2009, the definition of “aggravated offense” was expanded to include certain offenses against any child under the age of sixteen years old, as well as to cover a number of additional sexual crimes.

         In 2011, SORA was amended so that, inter alia, any offense under the laws of another jurisdiction that is substantially similar to an “aggravated offense” in Idaho is an “aggravated offense” for purposes of registration requirements. The 2011 amendments also increased the information required to be included for each sex offender in the digital registry; required an offender to register within two days of entry of conviction or prior to release from incarceration; required offenders to report any changes to their address, name or employment status within two working days of such change; required offenders to notify the police department of any lodging that would last longer than a period of seven days, and also to notify the jurisdiction of the location where they would be lodging; and required offenders to give notice of any vehicle changes. Finally, the 2011 amendments stated registration under SORA is for life, but allowed any offender other than a recidivist, offender convicted of an aggravated offense, or an offender designated as a violent sexual predator, to petition for release from the registration requirement within ten years of release from prison or parole.

         Plaintiffs are all individuals required to register under SORA. Due to the aforementioned amendments to SORA, it appears that all Does are required to register for life under the Act because of their classification as recidivist, or because their underlying crime has been classed as an “aggravated offense.” Plaintiffs amended their initial complaint on April 26, 2017. Dkt. 4 (hereinafter “First Amended Complaint”). In their First Amended Complaint, Plaintiffs did not associate particular causes of action with specific individuals, but instead generally stated that all 134 Does suffered from a wide variety of constitutional deprivations as a result of SORA. Plaintiffs' claims under the United States Constitution included Procedural and Substantive Due Process violations under the Fourteenth Amendment, Free Exercise of Religion violations under the First Amendment, Equal Protection violations under the Fourteenth Amendment, Cruel and Unusual Punishment violations under the Eighth Amendment, Ex Post Facto Clause violations, Double Jeopardy Clause violations under the Fifth Amendment, Contracts Clause violations, and Takings violations under the Fifth Amendment. Plaintiffs also included claims for Contracts Clause, Separation of Powers, and Police Power violations under the Idaho Constitution.

         Defendants[1] filed a Motion to Dismiss Plaintiffs' First Amended Complaint on November 17, 2017. The Court held oral argument on March 6, 2018, and subsequently issued its Memorandum Decision and Order granting Defendants' Motion to Dismiss. Dkt. 32. In its Order, the Court held Plaintiffs could not establish any facial challenges to SORA because there are numerous circumstances under which the Act is valid and constitutional. Dkt. 32, at 8-9 (citing Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (“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.”) (quoting U.S. v. Salerno, 481 U.S. 739, 745 (1987)). Because it could not find as a matter of law that SORA, either in whole or in part, was facially unconstitutional, the Court dismissed all facial challenges without leave to amend.

         The Court could not determine whether Plaintiffs stated any valid as-applied challenges to SORA because Plaintiffs did not plead any as-applied challenges in their First Amended Complaint. The Court dismissed Plaintiffs' First Amended Complaint but permitted Plaintiffs to amend certain claims to allege facts-tying specific Plaintiffs to specific causes of action-to allow the Court to assess standing and determine whether Plaintiffs could state plausible causes of action. However, the Court dismissed some of Plaintiffs' claims without leave to amend because even any as-applied challenges would fail.

         First, the Court denied leave to amend all but one aspect of Plaintiffs' Procedural Due Process claim. Specifically, Plaintiffs alleged SORA subjected sexual offenders to “new restrictions and requirements, regardless of any actual risk to society and without the possibility of any hearing[.]” Dkt. 4, at ¶¶ 236, 237. The Court explained the Supreme Court, in Connecticut Dep't of Public Safety, and the Ninth Circuit, in Doe v. Tandeske, already ruled upon this very issue. See generally, Connecticut Dep't of Public Safety v. Doe, 538 U.S. 1 (2003); Doe v. Tandeske, 361 F.3d 594 (9th Cir. 2004). In both cases, the Courts held classification-based registration requirements were valid, that registrants were not entitled to an opportunity to be heard on an individual basis, and that this type of regulatory structure does not violate Procedural Due Process rights. Under such precedent, a state can enforce specific registration requirements based upon a group classification without making individualized assessments. The Court accordingly denied Plaintiffs' leave to amend their general Procedural Due Process claim.

         Plaintiffs also alleged SORA's reporting requirements for students, and use of the term “loiter, ” were unconstitutionally vague and discriminatory. The Court reviewed SORA's student reporting requirements and use of the term loiter, determined neither provision was unconstitutionally vague, but allowed Plaintiffs to amend their Complaint only to allege specific reporting provisions or other terms within SORA are unconstitutionally vague as applied to a particular Doe. Dkt. 32, at 39 n. 17.

         The Court did not grant Plaintiffs leave to amend their Equal Protection claim because sex offenders are not a protected class, and because there is a valid reason for treating age groups differently, [2] so even as-applied Equal Protection challenges are barred. The Court also denied leave to amend any takings challenge under the Fifth Amendment unless a particular Doe could allege compliance with the exhaustion criteria of Williamson Cty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). Finally, the Court dismissed Plaintiffs' state police powers claim without leave to amend because a state can enact and enforce its own statutes and the Supreme Court has held that a state can apply sexual registration laws retroactively, so requiring Does already released from probation to re-register after SORA was amended does not violate Idaho's police powers.

         Following the Court's dismissal, Plaintiffs filed a new complaint on August 30, 2018. In their new complaint, Plaintiffs provide allegations in support of as-applied claims of twelve Does. Such allegations illustrate the twelve Does have faced significant hardships related to the registration requirements under SORA. These challenges can be generally categorized as difficulties finding employment or disruption of business opportunities, burdens upon travel, problems maintaining familial, social, or personal relationships, trouble finding a place to live, and difficulties attending church. Although the Court sympathizes with the Does and recognizes they have endured substantial obstacles, the challenges the Does allege are the same as those raised by sexual offenders in as-applied constitutional challenges to sexual offender registration laws across the country that have already been considered and rejected by the Ninth Circuit and Supreme Court. Without any allegations to distinguish Plaintiffs' harms from those foreclosed under binding precedent, the Court must dismiss the Second Amended Complaint.


         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). To sufficiently state a claim to 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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 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. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556. The plausibility standard is not akin to a “probability requirement, ” but does require more than a sheer possibility that a defendant acted unlawfully. Id.

         In Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the Supreme Court identified two “working principles” that underlie Twombly. First, although a court must accept as true all factual allegations in a complaint when ruling on a motion to dismiss, the court need not accept legal conclusions as true. Id. “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79. Second, only a complaint that states a plausible claim for relief will survive a motion to dismiss. Id. at 679. “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

         In light of Twombly and Iqbal, the Ninth Circuit has 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 Service, 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation marks and citation omitted). Apart from factual insufficiency, a complaint is also subject to dismissal under Rule 12(b)(6) where it lacks a cognizable legal theory, Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990), or where the allegations on their face show that relief is barred for a legal reason. Jones v. Bock, 549 U.S. 199, 215 (2007).

         A dismissal without leave to amend is improper unless it is clear that the complaint “could not be saved by any amendment.” Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009). The Ninth Circuit has held that “in dismissals for failure to state a claim, a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. N. California Collection Serv., Inc., 911 F.2d 242, 247 (9th Cir. 1990).

         IV. ANALYSIS


         Plaintiffs captioned their new complaint, “Amended Complaint for Injunctive and Declaratory Relief Part II.” Dkt. 36. Plaintiffs also claim to “reincorporate and reallege all allegations contained in the Amended Complaint as if fully set forth in this Amended Complaint Part II.” Id., at 3. However, “an amended complaint supersedes the original complaint” and renders the latter “without legal effect.” Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). The Court accordingly rejects Plaintiffs' proposed “Amended Complaint Part II” title and will instead refer to Plaintiffs' new complaint as the “Second Amended Complaint.”

         Plaintiffs suggest they did not “incorporate the prior Complaint with the intent of having this Court re-litigate the legal claims that have already been decided.” Dkt. 43, at 1. Yet, the Second Amended Complaint's prayer for relief seeks a declaration that the 2001, 2009, and 2011 amendments violate, both facially and as applied to Plaintiffs, each of the twelve causes of action alleged in the First Amended Complaint. Four of these claims, and all facial challenges, have already been dismissed without leave to amend. The Court adopts the analysis outlined in its Memorandum Decision and Order, Dkt. 32, and notes it will not repeat or reconsider its rejection of any facial challenges, or as-applied Procedural Due Process, Equal Protection, takings, or police powers challenges.[3]

         The Court has already explained that Plaintiffs must establish standing as to each as-applied challenge they seek to raise. Although the Second Amended Complaint provides a litany of specific harms suffered by twelve Does, it still fails to tie each Doe to a particular constitutional violation. The Second Amended Complaint instead generally asserts all Plaintiffs “jointly allege” violation of their constitutional rights. Dkt. 36, at 39-42. Even with the detail added for each of the twelve Does, it is clear not all twelve Does can state an as-applied challenge for each surviving cause of action.[4]

         Like the Amended Complaint, the Second Amended Complaint still requires the Court to parse through pages upon pages of allegations to attempt to determine the relationship between any particular Doe and a specific cause of action. As the Court has already noted, this approach is not appropriate. Dkt. 32, at 10; see also Indep. Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). However, to the extent the Court can infer an individual Doe has standing to allege an as-applied challenge to a ...

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