BRIAN HOPE, et al., Plaintiffs-Appellees, v. COMMISSIONER OF INDIANA DEPARTMENT OF CORRECTION, et al, Defendants-Appellants.
No. 19-2523
United States Court of Appeals For the Seventh Circuit
ARGUED JANUARY 14, 2020 — DECIDED JANUARY 6, 2021
Before ROVNER, WOOD, and ST. EVE, Circuit Judges.
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:16-cv-02865-RLY-TAB — Richard L. Young, Judge.
I.
Although sex offender registries had been around for some time prior, they proliferated in the early 1990‘s due to a few high profile and highly publicized heinous crimes against children by repeat sex offenders. We can assume that more widespread access to the internet in the 1990‘s also contributed to the proliferations of these laws. For the first time, anyone with an internet connection could access the information in these registries from their homes with a few mouse clicks and find out the location of convicted sex offenders in their communities. In 1994, Indiana enacted its own version of a sex offender registry, SORA, also called “Zachary‘s Law,” after a 10-year-old boy who was tragically sexually assaulted and murdered by a neighbor with a previous criminal conviction for sexual assault of a child. 1994 Ind. P.L. 11 § 7 (codified as
Around the same time, in the federal arena, Congress was enacting sex offender registration and notification laws, culminating in 2006 with the federal Sex Offender Registration and Notification Act (SORNA),
Those amendments have greatly expanded both the list of persons required to register and the information those registrants are required to provide. The current SORA requirements are many. A person required to register under SORA must report in person at least once annually to the local sheriff‘s office in the county of residence, and if the registrant is employed or attends school in a different county, the registrant must report to the sheriff‘s office in each of those counties as well. Sexual offenders who have committed one of nine specified offenses are considered to be “sexually violent predators” and must report to the local sheriff‘s office every ninety days.
Registration requires more than simply appearing at the sheriff‘s office. The person registering must be photographed and provide information including their name, date of birth, race, height, weight, hair color, eye color, identifying features such as scars and tattoos, social security number, driver‘s license or state identification card number, vehicle description and license plate number of any vehicle the registrant might operate regularly, principal address, name and address of any employer or educational institution, any electronic mail addresses, any instant messaging user names, any social networking website user name and “[a]ny other information required by the [Department of Corrections (DOC)].”
In addition to all of these requirements, a sexually violent predator must inform law enforcement of any absences away
To verify addresses, a local law enforcement officer must visit a registrant‘s home at least once per year, and at least once every ninety days if the offender is a “sexually violent predator.”
After cataloguing the burdens that we have just enumerated, the Indiana Supreme Court concluded that “the Act imposes significant affirmative obligations and a severe stigma on every person to whom it applies. ... [and the] duties imposed on offenders are significant and intrusive.” Wallace v. State, 905 N.E.2d 371, 379 (Ind. 2009). As a result, the Indiana Supreme Court concluded that the Act had the “effect of adding punishment beyond that which could have been imposed when his crime was committed,” and therefore the State could not impose the requirements of SORA on anyone whose offense predated the enactment of that statute. Id. at 384. To do so, it held, would violate the ex post facto clause of the Indiana Constitution. Id. As a result, Indiana does not require any
This case is before us now, however, because, despite the Wallace decision, persons with pre-SORA convictions who relocate to Indiana from another state where registration was required or relocate from Indiana to another state requiring registration and then back again, must register in Indiana, even if Indiana would not have required them to register had they committed their offenses in Indiana and never left.
We must pause here, before getting to the State‘s reasons for requiring these registrations, in order to untangle a Gordian knot in this case. The State has argued in its briefs that there are two situations in which the DOC decides that a person is required to register upon moving to Indiana.6 Those circumstances are as follows:
- The substantial equivalency requirement: If an individual relocates to Indiana after the offense of which that individual was convicted, or its out-of-state-equivalent, became a registrable offense, the DOC requires that individual to register based on its determination that, at the time that the individual relocated to Indiana, he was “on notice” that the offense requires registration. (R. 100-1 at 24–25, R. 100-2 at 15–16). Indiana requires the person to register whether or not that person was obligated to register in the state from which that person came.
The other jurisdiction requirement: If the individual is required to register in another jurisdiction and relocates to Indiana after July 1, 2006, the DOC requires the individual to register pursuant to Indiana Code § 11-8-8-5(b)(1) , which defines a “sex or violent offender” to include an individual “required to register as a sex or violent offender in any jurisdiction.” (R. 100-1 at 24-25, 39; R. 100-2 at 16–17).7 Of course, one can be required to register in another state as a result of one‘s employment or school enrollment in that state, even if he does not live there. E.g.,730 ILCS 150/3(a-5) . Thus, the State points out that “[a] lifelong Indiana resident who would otherwise fall within the Wallace rule will be required to register if he works in another state that requires him to register;” State Br. at 5. But that particular application of the other jurisdiction requirement is not at issue here: So far as the briefing reveals, none of the six plaintiffs was subject to registration in another jurisdiction as a result of work, study, or some conduct apart from residence in that jurisdiction.
In its fact section generally, and in the description of each plaintiff, and throughout its brief, the State maintains that all of the plaintiffs must register because of both of the statutory requirements we have just identified. State‘s Brief at 22, 23, 24, 25. As an example, the State asserts in its brief that Gary Snider must register because of both the substantial equivalency requirement (the crime he committed in Michigan in 1988 is substantially equivalent to an Indiana registrable offense), and because of the other jurisdiction requirement (he
Part of this confusion stems from the odd manner in which Indiana describes the operation of SORA. It refers to the statutory requirements of SORA as one aspect of the law, and then distinguishes the statutory law from the rulings by the Indiana Supreme Court invalidating certain applications of
From this we can make several brief conclusions before continuing on with the facts, with the promise for more analysis later. First, the decision in Wallace prevents the State from requiring new (or returning) residents to Indiana to register under the substantial equivalency prong alone, if their crime occurred before the date that SORA would have required registration for the substantially equivalent crime in Indiana. The State concedes this in its brief, at oral argument, and in a supplemental filing. See State‘s brief at 21 (“[A]n offender who committed his registrable offense prior to the adoption of SORA and who would not have any registration obligations but for SORA cannot be required to register; under Wallace, the marginal effects of such an application would be punitive.); id. at 38 (“[A] pre-SORA offender who moves to Indiana from a State where he was not required to register will also not be required to register in Indiana.“); State‘s Reply Brief at
Second, as we will explain later, Wallace also prevents the State from requiring registration under the other jurisdiction prong alone if the new (or returning) resident relocated to Indiana before 2006, when the other jurisdiction requirement was added to SORA. With this in mind, we can continue with the remaining facts.
The plaintiffs maintain that five of them have been required to register as sex offenders in Indiana because of both the substantial equivalency determination and the other jurisdiction requirement, and that Snider had to register solely because of the substantial equivalency requirement.8 As we
As we shall see, ultimately these distinctions about why an offender was required to register are not relevant to the outcome of this case. Instead, our outcome depends on the fact that two people who committed the same crime at the same time have different registration requirements depending on their history of residency in Indiana. Nevertheless, because the State has created much confusion with its bifurcation of the “statutory law” and the “constitutional law,” we will make clear that we are proceeding with our analysis of the case with the understanding that the State cannot apply the substantial equivalency registration requirement to any plaintiff who committed his offense before that offense became registrable in Indiana.9 As a matter of Indiana law, it may only require registration of pre-SORA offenders by those who were required to register in another jurisdiction.10 This
Before we turn to the individual circumstances of the plaintiffs, we can describe the generalized facts that apply to all of them. As a historical matter, it appears that all six of the plaintiffs were required to register in Indiana based on a determination by the DOC and local sheriff‘s departments that they had committed a registrable offense or the out-of-state equivalent to such an offense and that they had been required to register in another jurisdiction. Although they committed their offenses before SORA was amended to require registration on these grounds, the State deemed the amendments applicable to the plaintiffs because they had relocated (or returned) to Indiana after SORA was revised to include these registration requirements. Indiana would not have required them to register on these grounds had they been living in the State at the time they committed their offenses and remained there continuously thereafter. The State now concedes that, as a matter of Indiana law (including the Indiana Supreme Court‘s decision in Wallace), the plaintiffs can only be compelled to register based on the other jurisdiction requirement—that is, because they were required to register in another state. (We will discuss below why this theory is problematic as it relates to Snider and Bash, who moved to Indiana before the other jurisdiction requirement was enacted). All of the plaintiffs committed their crimes a long time ago—between approximately twenty-five to thirty-five years ago. All have fully served their sentences resulting
Brian Hope pled guilty to child molestation in 1996 for a crime that occurred in 1993 (twenty-seven years ago). He completed his probation in 2000 and has not been under any form of supervised release since then. In 2004 he left Indiana and relocated to California and then Texas, where he was required to register as a sex offender.12 He returned to Indiana in 2013 to help care for a sick grandfather. Hope is the only plaintiff who committed his offense in Indiana before the
A Michigan jury convicted Gary Snider in 1994 of criminal sexual conduct in the first degree. Snider continues to deny liability for his offense but stated in his affidavit that it was his recollection that, at trial, the victim did not have a precise memory of when the offense took place but testified that it occurred in the first half of 1988 (thirty-two years ago). R. 100-4 at 1. He married his wife while in prison, and the day he completed his prison term in 2003, he moved to Indiana where his wife lived and worked—three years before the Indiana legislature added the other jurisdiction requirement to SORA. Prior to the decision in Wallace, Snider was registered as a sex offender. In 2006, he moved away from his wife because their home was located within 1,000 feet of a daycare. In 2010, the Huntington County Sheriff‘s Department informed him that he was no longer required to register because of the decision in Wallace (his offense predated the enactment of that statute). In 2016, the DOC told him that Wallace no
In 1996, Joseph Standish pleaded no contest to attempted criminal sexual conduct which occurred in Michigan in 1995 (25 years ago). He completed his probation in 2001, and, when his wife received a job in Indiana in 2013, he moved with her. Initially DOC did not require him to register but changed course in 2016. He is now required to register as an “offender against children” and a “sexually violent predator,” and must do so at least every ninety days. Mr. Standish cannot watch his children participate in school activities and cannot take them to and from school.
In 1989, an Illinois court convicted and sentenced Patrick Rice for an aggravated criminal sexual assault that took place that year (31 years ago). Lacking a home or resources after his release from prison in 2017, he relocated to Indiana to live with his sister. Although Illinois required that Rice register only for ten years, Indiana requires him to register for life because he qualifies as a “sexually violent predator.” The registration process for Madison County, where he first settled, required him to pay an initial registration fee of fifty dollars and to make multiple trips within a seventy-two-hour period. Shortly after he was released from prison and arrived in Indiana, he had to make eight to ten trips to the local sheriff‘s office—to register initially, to provide a copy of his newly obtained government identification, then his newly obtained social security card, his new telephone number, a new e-mail address, and a Facebook account. He must repeat
In 1990, Adam Bash pleaded guilty but mentally ill to the Kentucky crime of rape in the first degree and sodomy in the first degree for crimes committed in the mid-1980s, when he was somewhere between a pre-teen and an early teen. In 1998, he completed his prison sentence—which he spent mostly in psychiatric or medical facilities—without any required parole or probation. Upon his release, he relocated to Ohio, where he was required to register, before settling in Indiana around 1999 or 2000, about six years before SORA‘s other jurisdiction requirement was enacted. Nevertheless, he is required to register in Indiana annually as an “offender against children.” Bash subsists on social security benefits, and because of his conviction, does not qualify for any public housing assistance. His housing options also have been limited by the prohibition on living within 800 feet of certain facilities. All of this makes it difficult for him to pay the fifty-dollar registration fee and the five-dollar change-of-address fee, the latter of which, despite its name, has been imposed when he registered a change in car and haircut. Because of his precarious financial situation, he sometimes has to go on a payment plan. Bash has full legal custody of his young son, but he cannot enter school property for his activities or for parent-teacher conferences.
Hope and Snider filed suit for declaratory and injunctive relief against the Commissioner of the DOC, their respective county prosecutors’ offices and respective county sheriffs challenging the constitutionality of the statute, later adding Standish as a plaintiff. The district court entered a preliminary injunction on April 6, 2017, enjoining Indiana‘s enforcement of SORA against all three plaintiffs. A few months after Hope and Snider filed their complaint, Rice, Bash, and Rush filed a similar complaint. By agreement, the cases were consolidated, and the preliminary injunction was extended to the new plaintiffs. On July 9, 2019, the district court issued its Entry on Cross-Motions for Summary Judgment holding that “SORA violates Plaintiffs’ fundamental right to travel, Plaintiffs’ right to equal protection of the laws, and the Constitution‘s prohibition against retroactive punishment.” R. 118 at 36.
Indiana‘s rule that those moving into the state must register while similarly situated residents do not have to register violates Plaintiffs’ fundamental right to travel and guarantee to equal protection of the laws. The application of SORA‘s requirements retroactively also violates the Constitution‘s prohibition against retroactive punishment. That means the registration requirements as applied here cannot stand.
Id. at 2. The State defendants appealed. We now affirm the district court‘s finding that application of SORA to this class of offenders violates their fundamental right to travel in that it treats them less favorably than Indiana citizens with comparable criminal histories who lived in Indiana before the other jurisdiction requirement of SORA was enacted.
II.
We review the district court‘s summary judgment decision de novo. E.g., Johnson v. Enhanced Recovery Co., 961 F.3d 975, 982 (7th Cir. 2020). Because we conclude that the State‘s application of SORA to the plaintiffs impermissibly interferes with their right to travel, we do not reach the district court‘s alternative finding that it also violates their rights under the ex post facto clause of the United States Constitution.
Although all six of the plaintiffs were convicted of sex offenses before SORA would have required them to register for those offenses, Indiana nonetheless requires each of them to register based on subsequent amendments to SORA. As we have noted, throughout this litigation, Indiana has represented that each of the plaintiffs is required to register on either of two independent grounds: (1) he relocated to Indiana
As to the plaintiffs’ claim that Indiana has interfered with their right to travel by requiring them to register, the State‘s legal theory is that SORA does not make the sort of distinction between newer and more longstanding citizens that the pertinent line of Supreme Court right-to-travel cases forbids. What triggers SORA‘s application to the plaintiffs, the State emphasizes, is not the timing of their arrival in Indiana but rather the fact that they were subject to a registration requirement in another jurisdiction. Thus, someone relocating to Indiana today will have no obligation to register there if he was under no such obligation in his former state of residence, whereas a lifelong Indiana citizen will incur an obligation to register in Indiana if he becomes obligated to register in another state by virtue of taking a job or enrolling in school in that state. Our dissenting colleague makes essentially the same point: Application of the other jurisdiction requirement turns not on whether or when an offender moved to Indiana from another state but rather on another state‘s imposition of a duty to register, period. Indiana is not intentionally treating newly arrived offenders differently and thus burdening their
Whatever superficial appeal this line of reasoning might have in the abstract, it does not defeat the plaintiff‘s right-to-travel claim. Indiana is not contending that the plaintiffs must register because they committed a registrable offense or its equivalent, nor is Indiana relying on some other aspect of the plaintiffs’ conduct in another state signaling a danger that warrants the plaintiffs’ registration in Indiana. It instead relies solely on the fact that another state, in the exercise of its independent judgment, required each of the plaintiffs to register, although Indiana itself would not have required the plaintiffs to do so in the first instance. Because Indiana is placing exclusive reliance upon another state‘s decision to require an offender to register, it is necessarily (if implicitly) using an offender‘s travel as the trigger for its own registration requirement. It is true that there are two types of travel implicated by the other jurisdiction requirement: relocation to Indiana from another state and commuting from Indiana to another state for work or study. All six of the plaintiffs have relocated to Indiana, and it is that particular type of travel, and its unique place in the Supreme Court‘s right-to-travel jurisprudence, that is at issue here. Indiana commuters who have picked up registration obligations elsewhere may or may not have their own constitutional claim—theirs is a different form of travel for constitutional purposes—but no such claim has been raised or briefed in this case. For the plaintiffs, all of whom committed sex offenses before those offenses became registrable in Indiana, it is the fact of their subsequent relocation that gives rise to a duty to register in Indiana; had they lived in Indiana at the time of their offenses and never left, they would not be required to register today. True enough, their former
Although a right to travel is not expressly mentioned in the
As the cases have defined it, the right to travel encompasses at least three distinct, but related, components: (1) the right of a citizen of one state to enter and leave another state; (2) the right of a citizen of the first state to be treated as a welcome visitor rather than an unfriendly alien by the second state; and (3) the right of a traveler who elects to settle in and become a permanent resident of another state to be treated on par with other citizens of that state. Saenz, 526 U.S. at 500, 119 S. Ct. at 1525.
The parties agree it is the third right, if any, that is implicated here. So far as the plaintiffs in this case are concerned, whether or not SORA imposes a duty to register depends upon whether one settled (or re-settled) in Indiana after the relevant provision of SORA was enacted: A sex offender who lived in Indiana before the other jurisdiction requirement was adopted and has remained a citizen of Indiana since that time, without taking a job or engaging in some other activity in another state that triggers a duty to register in that state, is exempt from SORA’s other jurisdiction requirement, whereas an individual with the identical criminal history who relocated to Indiana after that requirement was adopted in 2006, from a state that compelled him to register there, is subject to SORA’s registration requirement.
Historically, there has been some uncertainty as to the constitutional underpinning of the right to travel and thus as to the appropriate framework for evaluating claims that a state provision like SORA intrudes upon that right. The right to
But the Court’s decision in Saenz placed the third component of the right to travel squarely within the domain of the Privileges or Immunities Clause of the Fourteenth Amendment, which provides:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; . . . .
Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the Slaughter-House Cases, 16 Wall. 36, 21 L. Ed. 394 (1872), it has always been common ground that this Clause protects the third component of the right to travel. Writing for the majority in the Slaughter-House Cases, Justice Miller explained that one of the privileges conferred by this Clause “is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a
bona fide residence therein, with the same rights as other citizens of the State. Id., at 80. Justice Bradley, in dissent, used even stronger language to make the same point: The states have not now, if they ever had, any power to restrict their citizenship to any classes or persons. A citizen of the United States has a perfect constitutional right to go to and reside in any State he chooses, and to claim citizenship therein, and an equality of rights with every other citizen; and the whole power of the nation is pledged to sustain him in that right. He is not bound to cringe to any superior, or to pray for any act of grace, as a means of enjoying all the rights and privileges enjoyed by other citizens. Id., at 112–113.
That newly arrived citizens “have two political capacities, one state and one federal,” adds special force to their claim that they have the same rights as others who share their citizenship. Neither mere rationality nor some intermediate standard should be used to judge the constitutionality of a state rule that discriminates against some of its citizens because they have been domiciled in the State for less than a year. The appropriate standard may be more
Insofar as the plaintiffs here are concerned, Indiana’s SORA creates two classes of Indiana citizens, with the 2006 adoption of the other jurisdiction requirement marking the dividing line between the two classes: those who resided in Indiana prior to the enactment of SORA’s other jurisdiction requirement (and remained residents thereafter without incurring a registration obligation in any other state), and those who arrived later. The former enjoy the full protection of Indiana’s ex post facto clause as interpreted by Wallace and may not be burdened with the various aspects of the duty to register that Wallace deemed to be penalties, so long as they do not venture out of the State to engage in activity that might subject them to a registration requirement elsewhere. If, however, they settled in Indiana after the other jurisdiction provision of SORA was enacted, they may be subject to those very penalties, regardless of when they committed their offenses.
This sets up the very sort of multi-tiered state citizenship that the Supreme Court’s right-to-travel cases prohibit. See Saenz, 526 U.S. at 507, 119 S. Ct. at 1528 (“Neither the duration of respondents’ California residence, nor the identity of their prior States of residence, has any relevance to their need for benefits. Nor do those factors bear any relationship to the State’s interest in making an equitable allocation of the funds
Just as in those cases, Indiana’s decision to make the applicability of SORA dependent upon the date of a citizens’ arrival to the State (before or after the relevant statutory provision took effect) implicates the right to travel by imposing greater burdens on newly arrived residents. In this respect, newer citizens of Indiana—including the plaintiffs—are not accorded the same rights as more longstanding residents who are otherwise similarly situated in terms of their criminal history. This discriminatory classification is a penalty in and of itself and can only survive if it satisfies strict scrutiny. See Saenz, 526 U.S. at 504–05, 119 S. Ct. at 1527. Accordingly, the State must demonstrate that its differential treatment of Indiana citizens is necessary to promote a compelling governmental interest. Id. at 499, 119 S. Ct. at 1524 (citing Shapiro, 394 U.S. at 634, 89 S. Ct. at 1331).
We recognize, as the district court did, that the Indiana legislature may have wished to avoid this discriminatory classification and instead apply SORA’s requirements to all sex offenders residing in Indiana, regardless of the date of their convictions, but that it was precluded from doing so by Wallace’s holding that imposing a registration requirement on offenders whose convictions pre-dated SORA’s regulatory requirements violated Indiana’s ex post facto provision. So the distinction may well be driven more by the Indiana Supreme Court’s holding in Wallace than by any legislative judgment
Against all of this, the State as noted argues that the right to travel as recognized in cases like Saenz is, in reality, not burdened here, in that the applicability of SORA is tied not to the duration of one’s residency in Indiana but rather to the SORA-like requirements to which arriving citizens were subject in their former states of residence. In other words, from the State’s point of view, what triggers SORA is not the recency of one’s arrival to Indiana but the registration requirement to which the new resident was subject in his former state; and in that respect, Indiana is simply choosing to leave in effect (or reimpose) the very requirement that would have burdened the offender had he never traveled across state lines at all. And if the new arrival was not subject to a registration requirement in his former state of residence, Indiana will not impose one. The fact that the other jurisdiction requirement can also apply to a lifelong Indiana resident who becomes subject to a registration requirement in another state by virtue of his work, study, or other activity in that state reinforces the State’s point.
But for at least three reasons, the argument is unavailing. First, notwithstanding Indiana’s insistence that its scheme is not tied to the duration of one’s residency, for individuals like the plaintiffs, the fact of one’s relocation from another jurisdiction is necessarily and implicitly an element of the other jurisdiction requirement, as one cannot become subject
Second, to the extent the State’s theory presumes that the other jurisdiction requirement applies to plaintiffs Bash and Snider, who relocated to Indiana before that requirement was added to SORA in 2006, a few additional words are in order. The State’s counsel has insisted that the other jurisdiction requirement applies to them as it does to the other plaintiffs because Snider and Bash were required to register in their former states of residence (Ohio in Bash’s case, Michigan in Snider’s). This is obviously consistent with the State’s broader point that the timing of one’s arrival in Indiana does not matter. Our dissenting colleague shares this understanding. But we cannot see any possible reason why the Indiana Supreme Court’s Wallace decision permits this application given the timing of Bash’s and Snider’s arrival in Indiana. When Bash and Snider arrived in Indiana pre-2006, the other jurisdiction requirement was not yet in effect and, of course, that is the only provision on which the State now relies to justify their obligation to register. So, at the time they relocated to Indiana, they were in the same position as a lifelong resident of Indiana with a similar criminal history: there was no provision requiring them to register (at least not one the State is willing to rely upon now, or one that the Indiana Supreme Court has not found to be unconstitutional).15 Whatever registration
Even if the State and the dissent are correct that, as a matter of state law, the other jurisdiction requirement is fully retrospective and can properly apply to individuals like Bash and Snider, there remains a dichotomy among Indiana residents based on the date of their arrival in Indiana. One who was a resident of Indiana before SORA required registration for his offense and remains so thereafter is not subject to a duty to register, period (Wallace leaves no doubt in that regard at all), whereas one who arrived in Indiana later may be subject to registration pursuant to the other jurisdiction requirement. In that respect, the timing of one’s relocation to Indiana still matters.
Third, although the applicability of SORA as relevant here depends on whether or not a new citizen was subject to comparable requirements elsewhere, the State’s theory that it is merely recognizing and choosing to continue a burden imposed by another jurisdiction cannot somehow obviate the effect that its actions have on the right to travel. Indiana may not be burdening newly-arrived sex offenders vis-à-vis the requirements that their former states of residence imposed on
Were we concerned solely with actual deterrence to migration, we might be persuaded that a partial withholding of benefits constitutes a lesser incursion on the right to travel than an outright denial of all benefits. See Dunn v. Blumstein, 405 U.S. 330, 339, 92 S. Ct. 995, 31 L.Ed.2d 274 (1972). But since the right to travel embraces the citizen’s right to be treated equally in her new State of residence, the discriminatory classification is itself a penalty.
Saenz, 526 U.S. at 504–05, 119 S. Ct. at 1527. That is precisely the problem here: As to relocating individuals, Indiana has established a two-tiered system of regulating offenders that is tied in the first instance to when the individual became a citizen of Indiana. For constitutional purposes, the relevant comparison is not how Indiana treats an offender versus how his former state of residence treated him, but rather how Indiana distinguishes among its own citizens based on whether they arrived pre- or post-enactment of SORA’s other jurisdiction provision. Indiana grants the former the full protection of its ex post facto clause but deprives newer arrivals of the same protection. See Saenz, 526 U.S. at 502, 119 S. Ct. at 1526 (third aspect of the right to travel encompasses “the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State“); Soto-Lopez, 476 U.S. at 904, 106 S. Ct. at 2322 (“the right to migrate protects residents of a State from being disadvantaged, or from being treated differently, simply because of the timing of their migration, from other similarly situated residents“). And, unlike the California scheme at issue in Saenz, the burden that one incurs by arriving in Indiana after the enactment of SORA is not temporary, insofar as the plaintiffs here are concerned,
To return to a key point of the dissent: No, the overlap between the set of offenders whom SORA burdens with a registration requirement and the set of offenders who relocate to Indiana is not complete. Some number of relocating individuals will not be affected by the other jurisdiction requirement because their former domiciles did not require them to register. And some number of offenders will be required to register not because they are relocating from other states where they registered but because they have commuted from Indiana for work or study to other states that mandated their registration. The latter group, as we have noted, has still engaged in interstate travel, but not the sort of travel for relocation to another state that Saenz and the other residency cases address. Members of that group may have their own constitutional claim, but it is not one that is presented here. But the fact that relocation from one state to another is not the exclusive means of triggering the other jurisdiction requirement and does not invariably result in a registration obligation in Indiana does not
Our dissenting colleague cites Connelly v. Steel Valley Sch. Dist., 706 F.3d 209 (3d Cir. 2013), in an effort to demonstrate that it is not the plaintiffs’ travel that explains their differential treatment by Indiana. But key distinctions between Connelly and this case actually demonstrate the opposite.
In Connelly, a Pennsylvania school district gave less credit to its teachers for prior out-of-state teaching experience than it did for in-state experience in establishing starting salaries. The plaintiff, who had lived and taught in Maryland before relocating to Pennsylvania, argued that he was being treated differently based on his former domicile in Maryland, in violation of his right to travel. In rejecting that claim, the court emphasized that the school district was not treating its teacher-citizens differently based on where they came from. Rather, what mattered was where they gained their prior experience. As a result, a former Maryland citizen whose prior teaching experience was in neighboring Pennsylvania (the two states share a border along the Mason-Dixon line) would receive full credit for his experience, whereas a lifelong Pennsylvania citizen who previously taught in Maryland would receive only partial credit. 706 F.3d at 214–15. “[O]nly the teacher’s lack of Pennsylvania teaching experience—not his residency—would adversely affect his starting pay.” Id. at 215. Any burden this scheme imposed on interstate travel was, at most, “incidental.” Id. The court went on to hold that the school district had a rational basis for paying its teachers
Our colleague analogizes the registration obligation that an offender has borne in another state to the teaching experience that the plaintiff in Connelly acquired in another state: both are historical facts, on their face unconnected to an individual’s travel, that may legitimately inform a state’s judgment as to how the individual should be treated as a newly arrived citizen.
The difference is that when other states required the plaintiffs to register, they did so based on the very same criminal history that Indiana itself would not treat as sufficient to require registration. Individual states are, of course, free to reach different conclusions about what offenses require registration—that is a feature of our federalist system of government. And just as states may compile their own lists of registrable offenses, they may (and do) reach different conclusions as to whether the ex post facto provisions in their own constitutions permit the retrospective imposition of a duty to register. Indiana has conceded that its own ex post facto provision, as construed by Wallace, prohibits the application of the Indiana SORA’s substantial equivalence requirement to the plaintiffs: they were all convicted before their offenses were identified as registrable offenses by the Indiana Legislature. Had they been Indiana citizens at the time of
So unlike the school district in Connelly, which relied on the mise en scène of one’s prior experience and the perceived qualitative differences between in-state and out-of-state teaching experience, Indiana is not relying on something that any of the plaintiffs did in another state that distinguishes him from an otherwise similarly-situated Indiana sex offender—e.g., commit another offense, violate the terms of his probation, or fail to comply with his registration and reporting obligations. No plaintiff did anything outside of Indiana that would have triggered an obligation to register under SORA had he done it in Indiana. Indiana is relying solely on another state’s judgment that registration was required in that other state, so long as the offender was present in that state. Upon his relocation to Indiana, the State requires each plaintiff to carry that obligation with him, notwithstanding the fact that Indiana itself would not have imposed that obligation in the first instance.
A simplified hypothetical helps to make clear why it is the offender’s relocation to Indiana from another state that is the real trigger for the mandate that he register in Indiana. Consider two offenders, A and B, who are similar in all respects but for the fact that A lives in Indiana and B lives in Illinois. In 1993, both commit the same sex offense, are convicted in their respective states, and commence six-year prison terms. In 1994, both states enact laws requiring lifetime registration for the sex offense that A and B committed; but the Indiana legislature makes its registration obligation prospective only, whereas Illinois makes the obligation fully retrospective. Thus, when A is released from prison in 2000, he is not
The point is more clearly made if we assume that both A and B were Indiana citizens from the beginning and committed the same sex offense in Indiana in 1993 and that B in 2008 relocated briefly to (and established residency in) Illinois, which required him to register, before returning to Indiana the following year. Indiana, relying on the other jurisdiction provision, now requires B to register in Indiana as well. Has B’s criminal history changed? No. Did he do anything that materially changed the risk that he might pose to his fellow Indiana citizens? No. All that occurred was his move to another state that required him to register before he returned to and re-established residency in Indiana.
But however small in number the plaintiffs may be, Indiana has assigned them to a class of citizenship that is inferior to that enjoyed by other, similarly situated Indianans, and for the plaintiffs, it is their relocation from other states that has resulted in that second-class status. Indiana, as a matter of its own statutes and judicial precedents, would not have required the plaintiffs to register had they lived in Indiana prior to 2006, when the other jurisdiction requirement was enacted. Only their travel from states that did require them to register has triggered this burden. The Supreme Court’s right-to-travel jurisprudence instructs that this two-tiered model of state citizenship is not permissible under the
Indiana nonetheless argues that because it is not denying newer arrivals a public benefit, a tax exemption, or the right
Finally, Indiana posits that any understanding that a state cannot classify its citizens differently depending on whether they have engaged in interstate travel is inconsistent with the many federal criminal laws that apply precisely on that basis. This is a misguided argument. First, the sort of interstate
III.
The other jurisdiction requirement of Indiana’s SORA imposes a duty to register and its attendant burdens upon a relocating citizen that it would not impose upon a lifelong Indiana resident. The Privileges or Immunities Clause of the
AFFIRMED
I.
A.
Addressing the plaintiffs’ federal claims requires a deep dive into Indiana law and the reasons for Indiana’s complex rules surrounding SORA. The majority starts off on the wrong foot by misunderstanding those rules.
Like other states, Indiana requires persons convicted of sex offenses to register as sex offenders.
As a statutory matter, SORA is fully retrospective and does not depend on when someone was convicted of an offense. And as a federal constitutional matter, this retrospective application is not inherently suspect under the Federal Ex Post Facto Clause. See Smith v. Doe, 538 U.S. 84, 90 (2003). The Indiana Supreme Court, however, has interpreted its state constitution’s Ex Post Facto Clause such that persons who
Even after Wallace, however, not all applications of SORA to prior convictions offend the Indiana Constitution. On the same day as Wallace, the Indiana Supreme Court decided Jensen v. State, 905 N.E.2d 384 (Ind. 2009). Jensen was convicted of a sex offense in 2000, and at the time, SORA required him to register as a sex offender for ten years. Id. at 389. Before Jensen’s ten years were up, the Indiana General Assembly amended SORA in 2006 to mandate that he now register for life. He argued that this extension violated the state’s Ex Post Facto Clause, but the Indiana Supreme Court disagreed. Unlike Wallace, who had no obligations before SORA was amended to cover him, the “‘broad and sweeping’ disclosure requirements were in place and applied to Jensen at the time of his guilty plea in January 2000. Nothing in that regard was changed by the 2006 amendments.” Id. at 394. The marginal effect of increasing only the length of an existing registration obligation did not rise to the level of “punishment” such that it violated the Indiana constitution. Id. at 391–93.
After Jensen, the Indiana Supreme Court continued to focus on the marginal effects of SORA and its amendments. In State v. Pollard, 908 N.E.2d 1145 (Ind. 2009), it said that a new residency restriction was “adding punishment.” Id. at 1154. The court’s decision in Lemmon v. Harris, 949 N.E.2d 803 (Ind. 2011), though, concluded that an amendment that reclassified
Up to this point, however, each case had asked whether the Indiana SORA had a marginal punitive effective compared to those requirements already imposed by Indiana law. In 2016, the Indiana Supreme Court encountered three cases challenging SORA’s effect on those who had been required to register under another state’s laws.
Applying the same marginal-effects test, the Indiana Supreme Court concluded that the effect of maintaining an out-of-state registration in Indiana was not punitive, regardless of when or where the registrable crime had been committed. First, in Tyson v. State, 51 N.E.3d 88 (Ind. 2016), the court upheld registration for a man obligated to register under Texas law at the time of his conviction, before Indiana’s SORA covered his offense. Id. at 92. The court concluded that the marginal effect of “maintaining a registry requirement across state lines does not amount to a punitive burden” in violation of the state constitution. Id. at 90.
The court extended this reasoning in State v. Zerbe, 50 N.E.3d 368 (Ind. 2016). Zerbe was convicted in Michigan in 1992, before either Michigan or Indiana had enacted sex offender registration laws. Id. at 369. Zerbe was nevertheless required to register under Michigan law upon release from prison because Michigan did not share Indiana’s stricter Ex Post Facto Clause. Id. at 371. This twist changed nothing; the marginal effect of maintaining that registration was not punitive. Id. at 370–71. As the court clarified, “it is not Zerbe’s crime that triggers his obligation to register as a sex offender in
In sum, the question under SORA and Indiana’s Ex Post Facto Clause is always whether SORA’s marginal effect is punitive. Maintaining, extending, or modifying a duty under SORA generally is not punitive, but imposing a new duty is. It is immaterial to the analysis whether Indiana law is maintaining, extending, or modifying its own duties or those of another state. Likewise, it is immaterial where or when the conviction occurred, as long as some state imposed a lawful registration obligation on the offender and SORA does not so significantly alter that obligation to result in added punishment.
B.
Plaintiffs argue that the Indiana Supreme Court’s marginal-effects rule violates their right to travel under the Federal Constitution. While the majority aptly summarizes the development of the law regarding this right, it overreads the right to travel as articulated by the Supreme Court.
The U.S. Supreme Court has identified three components to the right to travel: (1) “the right of a citizen of one State to enter and to leave another State,” (2) “the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State,” and (3) “for those
In Saenz, the plaintiffs challenged the constitutionality of a California statute that limited new residents to only the welfare benefits to which they would have been entitled in their prior state of residence. 526 U.S. at 492. The Supreme Court held that this rule violated the third aspect of the right to travel. The Court was not concerned with whether California was trying to penalize or deter travel or even if it was succeeding. Id. at 504. Instead, the Court found that “the right to travel embraces the citizen’s right to be treated equally in her new State of residence” and that “the discriminatory classification is itself a penalty.” Id. at 505. In addressing this discrimination, the Court applied strict scrutiny, which California’s law failed. Id. at 504–05. The duration of a citizen’s residency and the location of his or her prior residence had no relevance to the citizen’s welfare needs, and the bare desire to reduce the state’s budget was not compelling enough to justify a complex layered hierarchy among bona fide California residents. Id. at 507.
Saenz broadly stands for the proposition that durational residency requirements violate the right to travel unless they pass strict scrutiny. The full scope of that right, however, is uncertain. There have been no Supreme Court decisions interpreting the right to travel after Saenz. Decisions before it held other durational residency requirements unlawful but did so
I agree with the majority, however, that the right to travel should be understood to go beyond prohibiting only durational residency requirements that place a waiting period on benefits. It seems unlikely that a permanent distinction between bona fide residents would be any more lawful than a temporary one. The Supreme Court’s cases illustrate this point, though a majority of the Court has yet to endorse it. In Zobel v. Williams, 457 U.S. 55 (1982), Alaska implemented a natural resource dividend statute that created “fixed, permanent distinctions between an ever-increasing number of perpetual classes of concededly bona fide residents, based on how long they have been in the State.” Id. at 59. The Supreme Court held that this scheme was improper even under rational-basis review. Id. at 64. The Court did the same thing with a New Mexico tax exemption for Vietnam veterans who were state residents before a specific date. Hooper v. Bernalillo Cty. Assessor, 472 U.S. 612, 624 (1985).
Although the Supreme Court did not directly hold that the laws at issue in Zobel and Hooper implicated the right to travel,
All of the Supreme Court’s decisions in this area have something in common. Each involved a rule that explicitly discriminated between old and new residents. As the Court noted, the challenged classifications in Saenz were “defined entirely by (a) the period of residency in California and (b) the location of the prior residences of the [plaintiffs].” 526 U.S. at 505 (emphasis added). Likewise, in Soto-Lopez, the plurality emphasized that New York was depriving the plaintiffs “of a significant benefit, based only on the fact of nonresidence at a past point in time.” 476 U.S. at 909 (emphasis added). In each case, there was a direct causal connection between a person’s status as a new resident and the deprivation of a benefit. In legal parlance, each was a “disparate treatment” claim.
II.
The question in this case is whether Indiana’s registration requirement, as applied through the marginal-effects test, violates the right to travel identified by the Supreme Court. In other words, does the marginal-effects test treat bona fide residents differently based on when they became residents.
I part ways with the majority because I conclude it does not. Neither SORA nor Indiana’s Ex Post Facto Clause discriminates based on residency. Neither even mentions
The majority offers two theories to support its view that Indiana violated the plaintiffs’ right to travel. The primary argument is that the other-jurisdiction provision in SORA “creates two classes of Indiana citizens”: those who were Indiana residents prior to the provision’s enactment on July 1, 2006, and those who moved to Indiana after that date. Because the provision applies only to newer Indiana residents who moved to the state after July 1, 2006, the argument goes, the provision impermissibly classifies Indiana residents based on the length of their residency in the state and generally treats newer residents worse than long-term Indianans. I disagree because the underlying premise to this conclusion is incorrect—the other-jurisdiction provision does apply retroactively to offenders who became Indiana residents prior to July 1, 2006.
The majority’s conclusion to the contrary is rooted in its narrow reading of Indiana caselaw applying the state’s Ex Post Facto Clause to SORA. It suggests that any gap in time between the placement of an initial registration requirement
The majority’s second, more implicit argument is that as a practical effect of Indiana’s SORA, out-of-state residency is a determinative factor in the plaintiffs’ case and that of other offenders like them. Undoubtedly having a registration obligation in another state is correlated with changing one’s state
The majority acknowledges this but suggests that the fact that some new residents are not adversely affected by SORA’s requirements does not immunize the law from unconstitutionality. For support, the majority points to Saenz. There, the Supreme Court struck down the law, even though some of the new residents experienced more favorable welfare benefits than long-term Californians. Saenz, 526 U.S. at 497. What mattered, the Court concluded, was that California explicitly based its provision of benefits to new Californians—favorable or not—on the duration of their residence in California. Id. at 497, 505. The implication of the majority’s citation to Saenz is that SORA likewise cannot be saved by the fact that some new Indianans may not be subject to the registration requirements while some lifelong Indianans may be covered. That is a false equivalence. California employed an express, durational-
Prior, out-of-state residency represents neither causation nor perfect correlation for the application of SORA’s registration requirements, and there is no evidence that anyone in Indiana intended to deter travel through the other-jurisdiction provision. The result? A disparate-treatment claim under the right to travel necessarily must fail. All that is left is a disparate-impact claim—an argument that, as a practical matter, more new residents than old residents must register under the law. The Supreme Court, though, has never extended the right to travel this far. Cf. Washington v. Davis, 426 U.S. 229, 239 (1976) (holding that only disparate treatment or discriminatory purpose violates the Equal Protection Clause). Nor, to my knowledge, has any other court of appeals before today.
The Third Circuit has actively refused to take this step, and I would follow its lead. In Connelly v. Steel Valley Sch. Dist., 706 F.3d 209 (3d Cir. 2013), a Pennsylvania school district set its teachers’ salaries based on years of teaching experience but gave full credit for years teaching in the district, partial credit for years teaching in Pennsylvania, and reduced credit for years teaching elsewhere. Id. at 211–12. A teacher who taught
There are good reasons for limiting the right to travel to actual discrimination, as we recognized more than a decade before Saenz. In Sklar v. Byrne, 727 F.2d 633 (7th Cir. 1984), we considered a right-to-travel objection to an ordinance banning unregistered handguns in the City of Chicago. Because one needed to be a Chicago resident to register a handgun for lawful possession—and Chicago stopped new registrations after 1982—Sklar argued that the ordinance violated the right to travel. Id. We recognized then that this could not be how the right to travel functions, for applying strict scrutiny “based merely on a showing that newer residents would not benefit” would make huge swaths of the law vulnerable. Id. at 639. Like in Sklar, the plaintiffs here want to apply strict scrutiny on the showing that they, as new residents, are “merely one group among several who do not benefit” from the protections of Indiana’s Ex Post Facto Clause. Id. at 639. We refused the invitation in 1984, and I would refuse it again now.
III.
Because Indiana’s law does not implicate a fundamental right, it is subject to rational basis review. To survive this level of scrutiny, the Supreme Court has required that there be a rational basis for the classification. See FCC v. Beach Commc’ns Inc., 508 U.S. 307, 313 (1993) (stating that a statutory classification will survive rational-basis scrutiny “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification”). Because the district court did not undertake a rational-basis review, I would remand this case to the district court to determine whether this level of scrutiny has been met.