After years of legal wrangling, there has been a favorable decision in an important case in Tennessee (see previous WVRSOL post). The case was initiated on November 8, 2016, along with a motion for a protective order. At that time the governor of Tennessee was named William Haslam, so he was the defendant in his official capacity along with the director of the Tennessee Bureau of Investigation (TBI) whose name was Mark Gwyn. It was two separate, but identical complaints filed by the same attorney. The two cases were consolidated for the purposes of case management, discovery, and pretrial motions. And of course, the state tried every conceivable avenue to get the complaints dismissed, and they failed. They failed because the landscape has changed due to the ruling from the Sixth Circuit in Does v. Snyder. Tennessee is in the Sixth Circuit, which makes Does v. Snyder controlling case law.
The two John Doe plaintiffs each brought a separate action against the governor of the state of Tennessee and the director of the Tennessee Bureau of Investigation, each in their official capacity only. In their respective complaints, plaintiffs alleged that the retroactive application of the Tennessee Sexual Offender and Violent Sexual Offender Registration Verification and Tracking Act of 2004 (1) is an unconstitutional violation of the Ex Post Facto Clause of the United States Constitution, (2) violates the right to free speech guaranteed by the First Amendment, and (3) imposes oppressive restrictions in violation of the rights to parent, work, and travel under the Due Process Clause of Fourteenth Amendment.
Quoting from the opinion, the court stated, “Indeed, the Sixth Circuit’s decision in Snyder I has reshaped how district courts in this Circuit analyze challenges to sex offender registration laws under the Ex Post Facto Clause. In their Partial Summary Judgment Motion, Plaintiffs rely heavily on the ruling in Snyder I, arguing essentially that SORA is substantially identical to the Michigan law at issue in Snyder I and is in violation of the Ex Post Facto Clause.” See Opinion at 19. In Snyder I, the Sixth Circuit held that Michigan’s Sex Offenders Registration Act imposed punishment and that therefore the retroactive application of MSORA’s 2006 and 2011 amendments was unconstitutional as violative of the Ex Post Facto Clause. Does #1-5 v. Snyder, 834 F.3d 696, 699 (6th Cir. 2016). The court in Snyder I took issue with three parts of the statute, which cumulatively made the statute unconstitutional under the Ex Post Facto Clause: (1) the prescription of restricted zones where plaintiffs could not loiter, live, or work, (2) the public classifications to which plaintiffs were subject, and (3) the reporting obligations under MSORA.