Aurelio DUARTE; Wynjean Duarte; S.D., a minor, by and through Wynjean Duarte, acting as her next friend; Brandi Duarte, Plaintiffs-Appellants v. CITY OF LEWISVILLE, TEXAS, Defendant-Appellee
No. 15-41456
United States Court of Appeals, Fifth Circuit.
May 30, 2017
858 F.3d 348
STEPHEN A. HIGGINSON, Circuit Judge
William Andrew Messer, Brett Daniel Gardner, Messer, Rockefeller & Fort, P.L.L.C., Frisco, TX, for Defendant-Appellee.
Before DAVIS, ELROD, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Aurelio Duarte together with his wife and two children challenge the constitutionality of a Lewisville, Texas, ordinance (“the Ordinance“) that restricts where certain individuals convicted of sex offenses may live within the city. Specifically, they allege that the Ordinance deprives both Duarte individually and the Duarte Family as a whole of procedural due process and violates Duarte‘s constitutional right to equal protection. The district court granted summary judgment in favor of Lewisville. We affirm.
I.
In 2006, Duarte was found guilty after a jury trial of Online Solicitation of a Minor, in violation of
The collective area covered by the Ordinance encompasses the majority of Lewisville. According to Appellants, of the 39,967 residential housing units in Lewisville in November 2012, only eight were legally available to them for purchase and two for rent, constituting .025 percent of the total housing stock. From approximately 2010 through 2013, the Duartes resided together in a one-bedroom motel room in Lewisville and searched for a residence that complied with the Ordinance to no avail. Ultimately, the Duartes moved to a nearby town.
The Ordinance sets forth a number of affirmative defenses, which essentially establish exemptions for eligible individuals. Relevant to Duarte‘s equal protection claim is an exemption available to certain individuals who are subject to community supervision under Texas law as a result of their sex offense convictions. Under Texas law, individuals sentenced to a term of community supervision following a child sex offense conviction must adhere to a state-imposed condition that they not “go in, on, or within 1,000 feet of a premises where children commonly gather” during the pendency of their community supervision term.
Appellants initially filed this suit on March 26, 2012, seeking compensatory damages, as well as equitable, declaratory, and injunctive relief under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Double Jeopardy Clause of the Fifth Amendment, the Ex Post Facto guarantee, and
II.
We review a grant of summary judgment de novo, applying the same standards as the district court. Am. Home Assurance Co. v. United Space All., LLC, 378 F.3d 482, 486 (5th Cir. 2004). Summary judgment is only appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
III.
Duarte first asserts that the Ordinance violates his right to due process of law under the Fourteenth Amendment, because it deprives him of a constitutionally-protected liberty interest—namely, the ability to reside in the location of his choice—without adequate procedural protection. Duarte seeks a hearing to prove that he is not currently dangerous and therefore should not be deprived of the liberty to live in the areas prohibited by the Ordinance. The district court rejected Duarte‘s procedural due process claim on the ground that the Ordinance did not deprive him of a constitutionally-protected liberty interest. However, we need not reach that question.
As the Supreme Court explained in a similar challenge to a Connecticut sex offender registration law, “even assuming” that the Ordinance deprives Duarte of a liberty interest, “due process does not entitle him to a hearing to establish a fact that is not material under the . . . statute.” Conn. Dep‘t of Pub. Safety v. Doe, 538 U.S. 1, 7, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003); see also Meza v. Livingston, 607 F.3d 392, 401 (5th Cir. 2010) (“When an individual is convicted of a sex offense, no further process is due before imposing sex offender conditions.” (citing Conn. Dep‘t of Pub. Safety, 538 U.S. at 7-8)); Doe v. Miller, 405 F.3d 700, 709 (8th Cir. 2005) (concluding that an “Iowa residency restriction [did] not contravene principles of procedural due process under the Constitution” because “[t]he restriction applie[d] to all offenders who [had] been convicted of certain crimes against minors, regardless of what estimates of future dangerousness might be proved in individualized hearings.“). The fact that Duarte seeks to prove—his current dangerousness—is “of no consequence” under the Ordinance. Conn. Dep‘t of Pub. Safety, 538 U.S. at 7. The sole relevant question is whether Duarte “is required to register on the Texas Department of Public Safety‘s Sex Offender Database . . . because of a conviction involving a minor.” That fact is not in dispute, and Duarte‘s underlying conviction is a fact that he “has already had a procedurally safeguarded opportunity to contest.” Id. As noted, Duarte exercised his constitutional right to a trial by jury, was found guilty of the underlying sex offense, and was ultimately sentenced to three years of imprisonment following revocation of his community supervision term. Thus, the absence of an additional hearing allowing Duarte to contest current dangerousness does not offend
This conclusion applies with equal force to Appellants’ similar claim that the Ordinance deprives the Duarte Family collectively of a constitutionally-protected liberty interest in “family consortium” without procedural due process. The only procedural defect Appellants identify is the Ordinance‘s “complete failure to provide [the Duarte Family] with a pre-deprivation opportunity to be heard on the issue of whether . . . Duarte currently poses (or has ever posed) any threat to anyone by reason of a lack of sexual control.” As is the case with Duarte‘s individual claim, procedural due process does not entitle the Duarte Family to a hearing to “establish a fact that is not material” under the Ordinance. Id.
As the Supreme Court observed in Connecticut Department of Public Safety, “[i]t may be that [Appellants‘] claim is actually a substantive challenge to [the] statute ‘recast in procedural due process terms.‘” Id. at 8 (quoting Reno v. Flores, 507 U.S. 292, 308, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)). However, because Appellants insist that they intend only to bring a procedural due process claim, we do not reach the substantive due process question.3
IV.
Duarte next alleges that the Ordinance deprives him of his constitutional right to equal protection of law in violation of the Fourteenth Amendment. “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982)). To establish an equal protection claim, Duarte must first show that “two or more classifications of similarly situated persons were treated differently” under the statute. Gallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir. 2012); see also Stefanoff v. Hays Cty., 154 F.3d 523, 525-26 (5th Cir. 1998). Once that threshold element is established, the court then determines the appropriate level of scrutiny to apply. “Strict scrutiny is
Notably, Duarte does not challenge the Ordinance‘s classification between child sex offenders and the general population. Instead, he brings a more narrow challenge to the differing treatment of child sex offenders subject to state-imposed community supervision versus those who are not. The Magistrate Judge determined that this classification was subject to rational basis review, because it neither disadvantaged a suspect class nor impinged on a fundamental right. Appellants failed to object to this conclusion below, and, although they now make a cursory argument that strict scrutiny should apply, they fail to explain why, much less show that the Magistrate Judge‘s conclusion constituted plain error. See Douglass, 79 F.3d at 1428-29.4 Therefore, we limit our analysis to whether the Ordinance‘s differing treatment of the two groups identified by Duarte bears a rational relation to a legitimate governmental purpose.
As an initial matter, Lewisville argues that Duarte failed to identify a classification that would allow this court to perform an equal protection analysis at all, reasoning that the Ordinance “does not create multiple classes of child sex offenders,” because the “defense in the Ordinance is equally available to anyone who meets its terms.” We disagree. The Ordinance divides child sex offenders into two categories: (1) those subject to state-imposed community supervision and who are therefore permitted to avail themselves of the exemptions incorporated from state law, and (2) those who are not subject to community supervision and are therefore, by definition, unable to avail themselves of the same exemptions. As a result, the Ordinance provides a form of relief to one category of child sex offenders that is not available to another. This imposition of differing treatment based on delineated categories of sex offenders satisfies the threshold classification requirement. See Sonnier v. Quarterman, 476 F.3d 349, 368-69 (5th Cir. 2007).
We agree, however, that this classification “rationally further[s] a legitimate state interest.” Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). “Rational basis review begins with a strong presumption of constitutional validity.” Malagon de Fuentes v. Gonzales, 462 F.3d 498, 504 (5th Cir. 2006). A court will uphold the classification “if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose.” Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). Because “[r]ational basis scrutiny requires only that the legislative classification rationally promote a legitimate governmental objective[,]” naugh” cite=“814 F.2d 205” pinpoint=“208” court=“5th Cir.” date=“1987“>Williams v. Lynaugh, 814 F.2d 205, 208 (5th Cir. 1987) (emphasis added), we focus on the specific classification challenged by Duarte. In other words, the “appropriate standard of review is whether the difference in treatment between” child sex offenders on community supervision and child sex offenders not on community supervision “rationally furthers a legitimate state interest.” Nordlinger, 505 U.S. at 11 (examining whether the difference of treatment between newer and older homeowners for property tax purposes furthered a legitimate state interest).
Lewisville‘s explanation for the challenged classification is that it “is little more than legislative deference to an existing court order and seeks to avoid potentially conflicting orders.” Duarte complains that this is the first time Lewisville has articulated such a justification. However, “the Equal Protection Clause does not demand for purposes of rational-basis review that a legislature or governing decisionmaker actually articulate at any time the purpose or rationale supporting its classification.” Id. at 15. Instead, the court‘s review merely requires “that a purpose may conceivably or ‘may reasonably have been the purpose and policy’ of the relevant governmental decisionmaker.” Id. (quoting Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 528-529, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959)). “As long as there is a conceivable rational basis for the official action, it is immaterial that it was not the or a primary factor in reaching a decision or that it was not actually relied upon by the decisionmakers or that some other nonsuspect irrational factors may have been considered.” Reid v. Rolling Fork Pub. Util. Dist., 854 F.2d 751, 754 (5th Cir. 1988). The burden is on the challenging party to counter “any reasonably conceivable state of facts that could provide a rational basis for the classification.” Heller, 509 U.S. at 320 (quoting F.C.C. v. Beach Commc‘ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)).
“[C]lassifications serving to protect legitimate expectation and reliance interests do not deny equal protection of the laws.” Nordlinger, 505 U.S. at 13. Indeed, “[t]he protection of reasonable reliance interests is not only a legitimate governmental objective: it provides ‘an exceedingly persuasive justification[.]‘” Heckler v. Mathews, 465 U.S. 728, 746, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984) (quoting Kirchberg v. Feenstra, 450 U.S. 455, 461, 101 S.Ct. 1195, 67 L.Ed.2d 428 (1981)). Here, the affirmative defense provided by the Ordinance—and the classification it creates—is rationally related to a legitimate government interest in deferring to an existing state court judgment and protecting the expectation and reliance interests of those who have already sought and received a judicial determination that they are entitled to relief from geographic restrictions.
Further, the fact that some individuals are eligible for an exemption while others are not is not necessarily fatal under rational basis review. “[L]egitimate public policies [may] justify the incidental disadvantages [laws] impose on certain persons.” Romer v. Evans, 517 U.S. 620, 635, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). “Like all rational actors with limited resources, [a government actor] must reach its abstract goal . . . by a series of practical requirements and easily-administered rules judged to be reasonable surrogates for it.” Brennan v. Stewart, 834 F.2d 1248, 1259 (5th Cir. 1988). As the Supreme Court has explained, “the fact that . . . exemptions exist . . . does not render [a law] violative of equal protection” if there are “valid reasons for [the] exemptions . . . and no evidence to dispel them.” McGow-an v. Maryland, 366 U.S. 420, 427, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).
Because the Ordinance‘s challenged classification “rationally further[s] a legitimate state interest[,]” Nordlinger, 505 U.S. at 10, we conclude that it does not violate the Equal Protection Clause.
V.
For the foregoing reasons, we AFFIRM the district court‘s judgment.
STEPHEN A. HIGGINSON
UNITED STATES CIRCUIT JUDGE