JANE DOE v. MICHAEL DEWINE, Ohio Attorney General, and TOM STICKRATH, Superintendent of the Ohio Bureau of Criminal Investigation, in their official capacities
No. 17-3857
United States Court of Appeals for the Sixth Circuit
December 11, 2018
18a0265p.06
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Argued: July 26, 2018.
Plaintiff-Appellee,
v.
Defendants-Appellants.
Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:12-cv-00846–Susan J. Dlott, District Judge.
Before: WHITE, DONALD, and LARSEN, Circuit Judges.
COUNSEL
ARGUED: Michael J. Hendershot, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. Alexandra Naiman, OHIO JUSTICE & POLICY CENTER, Cincinnati, Ohio, for Appellee. ON BRIEF: Michael J. Hendershot, Eric E. Murphy, Stephen P. Carney, Thomas E. Madden, Mindy Worly, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. Alexandra Naiman, David A. Singleton, OHIO JUSTICE & POLICY CENTER, Cincinnati, Ohio, for Appellee.
HELENE N. WHITE, Circuit Judge. Defendants-Appellants Michael DeWine, Ohio Attorney General, and Tom Stickrath, Superintendent of the Ohio Bureau of Criminal Investigation, appeal the district-court judgment declaring that Ohio‘s sexual-offender registration and notification laws violate Plaintiff-Appellee Jane Doe‘s procedural due process rights because they subject her to lifetime registration requirements, which rest on an implicit finding that she remains likely to reoffend, without an opportunity to rebut that finding. We REVERSE.
I. BACKGROUND
In 2006, Doe pleaded guilty to unlawful sexual conduct with a minor, in violation of
The sentencing court classified Doe as a sexual predator, and that classification was affirmed on appeal. As a sexual predator, Doe is required to register with the local sheriff and provide her name and any aliases, social-security number, date of birth, current address, name and address of employer, name and address of school, locations where her vehicles are regularly parked, license-plate numbers, driver‘s license number, professional or occupational license numbers, email addresses, internet identifiers, and telephone numbers.
Doe is also subject to community-notification requirements.
For a period of time before Doe‘s offense, persons classified as sexual predators had a statutory right to petition the sentencing court for a hearing to reassess their likelihood of reoffending and change their classification.
In 2012, Doe filed this
In granting in part and denying in part the parties’ cross-motions for summary judgment, the district court first rejected Defendants’ arguments that Doe lacks standing to pursue her claim and that Defendants are entitled to
The district court initially ordered additional briefing on the issue of relief because it concluded that it lacked authority to grant the requested injunction ordering a reclassification hearing. However, at a subsequent status conference, the district court determined that further briefing was unnecessary and, without issuing the injunction, struck down
III. DISCUSSION
A. Standard of Review
This court reviews de novo a district court‘s summary judgment order based on purely legal grounds. Black v. Roadway Express, Inc., 297 F.3d 445, 448 (6th Cir. 2002) (citations omitted). We also review de novo whether the
B. Jurisdiction
Before reaching the merits, we address Defendants’ contention that the district court lacked subject-matter jurisdiction. Defendants claim that they are “immune from declaratory relief” under the
1.
Because we have held that “the
Defendants contend that Ex parte Young is inapplicable here because, under the relevant Ohio laws, neither the Attorney General nor the Superintendent can enforce Doe‘s compliance—or prosecute her noncompliance—with the challenged registration requirements. See
But Defendants’ lack of direct criminal enforcement authority does not foreclose Doe‘s reliance on Ex parte Young. In Russell, we explained that “[e]njoining a statewide official under Young . . . is appropriate when there is a realistic possibility the official will take legal or administrative
Applying Russell, both the Attorney General and the Superintendent fall within the Ex parte Young exception to
2.
Defendants also contend that Doe lacks standing to assert her challenge. “Article III of the Constitution limits the judicial power of the United States to the resolution of ‘Cases’ and ‘Controversies,’ and ‘Article III standing . . . enforces the Constitution‘s case-or-controversy requirement.‘” Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 597-98 (2007) (alteration in original) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006)). “[T]he irreducible constitutional minimum of standing contains three elements.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “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.” Id. (internal quotation marks and citations omitted). “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
Defendants argue that Doe fails to satisfy the third standing requirement, redressability.7 An injury is redressable if a judicial decree can provide “prospective relief” that will “remove the harm.” Warth v. Seldin, 422 U.S. 490, 505 (1975). The relevant standard is likelihood—whether it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 181 (2000). However, “the judicial decree is not the end but the means. At the end of the rainbow lies not a judgment, but some action (or cessation of action) by the defendant that the judgment produces. . . .” Hewitt v. Helms, 482 U.S. 755, 761 (1987). “Redress is sought through the court, but from the defendant. . . . The real value of the judicial pronouncement—what makes it a proper judicial resolution of a ‘case or controversy’ rather than an advisory opinion—is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff.” Id. Thus, “[r]edressability is typically more difficult to establish where the prospective benefit to the plaintiff depends on the actions of independent actors.” Parsons v. U.S. Dep‘t of Justice, 801 F.3d 701, 715 (6th Cir. 2015) (citation omitted).
Doe requests several forms of relief, including (1) “a declaration that [the challenged statutes] are unconstitutional for failure to provide her with a [reclassification] hearing,” (Appellee‘s Br. at 35), (2) “an Order that a hearing be scheduled in the sentencing court to determine whether [Doe] is currently dangerous,” and (3) “any and all other relief this Court finds appropriate.” (R. 1, PID 9.) She argues that these remedies would redress her injuries, which she summarizes as:
Defendants publically[sic] disseminate false information that Doe is currently dangerous, while she could prove that she is not; Doe and her children are barred from public housing because of Defendant‘s dissemination of this false information; Doe is also subject to community notification and must register more often than appropriate for her risk-level.
(Appellee‘s Br. at 34.)
We recognize that the two Defendants, the Attorney General and the Superintendent, have no power to hold a reclassification hearing for Doe or force a court to hold one. But, in addition to striking the laws as unconstitutional, the district court could order Defendants to remove Doe‘s information from the state-wide registry and public-facing sex-offender database they maintain,
To be sure, this remedy would not remove Doe‘s judicially imposed sexual-predator classification, nor guarantee her a hearing in state court to remove the classification, but it would remove one barrier to the hearing—the law barring it—and would remove the stigmatizing information from the Attorney General‘s publicly available website. See Larson v. Valente, 456 U.S. 228, 243 n.15 (1982) (“[A] plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury.“). Doe would thus “personally . . . benefit in a tangible way from the court‘s intervention,” which is sufficient to confer standing. Warth, 422 U.S. at 508 (footnote omitted).
C. Procedural Due Process
1.
The
The Supreme Court addressed a procedural due process challenge to a sex-offender registration law in Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003) (”DPS“). There, the plaintiff claimed that Connecticut‘s failure to provide a pre-deprivation hearing to determine a sex offender‘s current dangerousness before the offender‘s inclusion in a publicly disseminated sex-offender registry violated procedural due process. Id. at 3. The Supreme Court rejected the challenge:
In cases such as Wisconsin v. Constantineau, 400 U.S. 433 [] (1971), and Goss v. Lopez, 419 U.S. 565 [] (1975), we held that due process required the government to accord the plaintiff a hearing to prove or disprove a particular fact or set of facts. But in each of these cases, the fact in question was concededly relevant to the inquiry at hand. Here, however, the fact that respondent seeks to prove—that he is not currently dangerous—is of no consequence under Connecticut‘s Megan‘s Law. As the DPS Website explains, the law‘s requirements turn on an offender‘s conviction alone[.]
The Court thus concluded that “because due process does not require the opportunity to prove a fact that is not material to the State‘s statutory scheme,” a plaintiff who asserts a right to a hearing under the Due Process Clause must show that the fact the plaintiff seeks to establish in that hearing is relevant under the statutory scheme. Id. at 4, 8.
2.
Doe argues that her procedural due process claim is distinguishable from the claim rejected in DPS because Connecticut‘s classification is based solely on the fact of an offender‘s conviction, while Ohio‘s is based on present dangerousness, and that
Doe is correct that unlike the Ohio law applicable here, the Connecticut scheme did not provide an offender with a hearing at sentencing (or immediately after sentencing) to assess the offender‘s likelihood of reoffending; instead, the classification flowed from the conviction itself and was automatic. But this distinction is of no consequence. DPS‘s holding is clear: “Plaintiffs who assert a right to a hearing under the Due Process Clause must show that the facts they seek to establish in that hearing are relevant under the statutory scheme.” Id. at 8. Doe is unable to make that showing.
Ohio defines “sexual predator” as “a person who has been convicted of, or has pleaded guilty to, committing a sexually oriented offense and is likely to engage in the future in one or more sexually oriented offenses.”
The statute unambiguously provides that the sentencing judge‘s determination that a person convicted of a sexually oriented offense “is likely to engage in the future in one or more sexually oriented offenses” is “permanent and continues in effect until the offender‘s death.”
Thus, Doe‘s current sexual-predator classification is based on her likelihood of reoffending as of the time of the classification hearing because under Ohio‘s scheme, that assessment operated to require that her name be placed in the sex-offender registry permanently. As in DPS, no fact other than that assessment is relevant to Doe‘s present classification. 538 U.S. at 7. In other words, Doe‘s duty to register and the attendant restrictions stem not from her current dangerousness, but from the assessment of her dangerousness at her classification hearing, which resulted in a permanent sexual-predator classification. Therefore, she has not been deprived of constitutionally guaranteed process because “due process does not require the opportunity to prove a fact that
We note that the legislative history of Ohio‘s sexual-offender registration and notification laws, relied on by Doe, provides her no support. Doe argues that “[s]tatutory intent/history shows [the] relevance of present risk,” because “[w]hen creating [the sex-offender] classifications, Ohio‘s legislature expressed its intention to build a risk-based system to ensure public safety.” (Appellee‘s Br. at 8–9 (citing
As in DPS, the state “has decided that the registry information of all sex offenders—currently dangerous or not—must be publicly disclosed,” 538 U.S. at 7 (emphasis added), and “States are not barred by principles of ‘procedural due process’ from drawing such classifications.” Id. at 8 (citations omitted).
Absent a claim (which respondent has not made here) that the liberty interest in question is so fundamental as to implicate so-called “substantive” due process, a properly enacted law can eliminate it. That is ultimately why . . . a convicted sex offender has no more right to additional “process” enabling him to establish that he is not dangerous than . . . a 15-year-old has a right to “process” enabling him to establish that he is a safe driver.
Id. at 8-9 (Scalia, J., concurring). Doe‘s extensive discussion of scientific scholarship declaring that “[t]he likelihood that a sex offender will reoffend declines with time, treatment, and other factors,” suggests that reassessment of risk should be material under Ohio‘s statutory scheme, but it does not show that it is material. And Ohio‘s failure to consider changes to an offender‘s likelihood of reoffending does not implicate procedural due
In sum, because Doe‘s registration requirement stems from the determination of her likelihood of reoffending at the time of her classification hearing and is not dependent on her current dangerousness, she has no procedural due process right to a reclassification hearing. Further, the wisdom of Ohio‘s decision to make the determination of a sexual offender‘s future dangerousness permanent is not subject to a procedural due process challenge.
IV. CONCLUSION
We REVERSE the judgment of the district court holding