Doe et al v. Mayes et al

Filing 132

ORDER denying Plaintiffs' Motion (Doc. 14 ). FURTHER ORDERED lifting the 9/13/24, Temporary Restraining Order (Doc. 42 ). FINALLY ORDERED affirming the schedule for Defendants to answer or otherwise respond to Plaintiffs' First Amended Complaint (Doc. 82 ) as 12/13/24, as stated in the Court's 10/30/24, Minute Entry (Doc. 121 ). See order for complete details. Signed by Judge Michael T. Liburdi on 11/22/24. (NKS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jane Doe, et al.,
Plaintiffs,

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v.

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Kris Mayes, et al.,

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No. CV-24-02259-PHX-MTL
ORDER

Defendants.

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Pending before the Court is Plaintiffs’ Motion for Preliminary Injunction (Doc. 14).

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The Court previously granted an agreed-upon temporary restraining order to preserve the

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status quo while Defendants prepared an opposition to Plaintiffs’ Motion. (Docs. 35, 36,

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42.) The Motion now being fully briefed, with oral argument held on October 30, 2024,

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the Court will now address the Motion’s merits. (Docs. 14, 86, 95.) For the foregoing

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reasons, the Motion will be denied.

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I.

BACKGROUND

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During the 2024 legislative session, the Arizona Legislature passed, and the

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Governor signed, Senate Bills 1236 and 1404—the subject matter of this litigation. Senate

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Bill 1236 adds information to Arizona’s sex offender website. 2024 Ariz. Sess. Laws ch.

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158 § 1 (hereinafter “S.B. 1236”); see also A.R.S. § 13-3827 (2021). More specifically, it

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adds the information of any offender eighteen years of age or older who commits sexual

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assault, commercial sexual exploitation of a minor, and child prostitution. See S.B. 1236

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§ 1. As well as the information of any offender twenty-one years of age or older who

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commits an offense listed in A.R.S. § 13-3827(A)(2)(b), (d)-(f), (h)-(m)1 and is sentenced

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pursuant to A.R.S. § 13-705.2 See id. § 1.

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These changes to Arizona’s sex offender website will impact certain level one sex

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offenders.3 Prior to the enactment of Senate Bill 1236, level one offenders had their

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information published on Arizona’s website if they committed an offense listed in A.R.S.

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§ 13-3827(A)(2)(b), (d)-(f), (h)-(m) against a child under twelve years old; or if they

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committed sexual assault, commercial sexual exploitation of a minor, child prostitution, or

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child sex trafficking. See A.R.S. § 13-3827 (2021). Senate Bill 1236 takes the offenses

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already listed in A.R.S. § 13-3827(A)(2)(b), (d)-(f), (h)-(m) and uses them to now also

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require publication when a level one offender, twenty-one years of age or older, commits

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one of the listed offenses and is subsequently sentenced pursuant to A.R.S. § 13-705.

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Compare S.B. 1236 § 1, with A.R.S. § 13-3827 (2021). With there being no change to the

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offenses qualifying a level one offender for publication, and with level one offenders

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already being subject to publication if the victim was under twelve years old, Senate Bill

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1236 primarily changes the publication requirements based on the age of the victim and

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the offender’s age when committing the crime.

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Senate Bill 1404 changes the reporting requirements for sex offenders. 2024 Ariz.

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Sess. Laws ch. 57 §§ 1-2 (hereinafter “S.B. 1404”). Sex offenders must register with the

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local sheriff’s office anytime they enter and remain in a county for more than seventy-two

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hours. A.R.S. § 13-3821(A). To register, the offender must be fingerprinted, photographed,

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Offenses listed in A.R.S. § 13-3827(A)(2)(b), (d)-(f), (h)-(m) include: sexual exploitation
of a minor, sexual abuse, molestation of a minor, sexual conduct with a minor, child sex
trafficking, taking a child for the purpose of prostitution, luring a minor for sexual
exploitation, aggravated luring of a minor for sexual exploitation, and continuous sexual
abuse of a child.
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Sentences pursuant to A.R.S. § 13-705 involve “dangerous crimes against children.” Such
crimes are listed in A.R.S. § 13-705(T)(1)(a)-(w) and involve victims under fifteen years
of age. A.R.S. § 13-705(T)(1). When an adult commits a qualifying offense against a child
under fifteen, A.R.S. § 13-705 imposes sentencing ranges depending on the crime and
whether the individual is a repeat offender. See id. § 13-705(A)-(M). The ranges span from
a statutory minimum of two-and-a-half years imprisonment to a statutory maximum of life
imprisonment. See, e.g., id. § 13-705(A), (H).
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After being released from confinement, sex offenders are categorized and placed into one
of three notification levels. A.R.S. § 13-3825(D). Level one is for offenders who have the
lowest risk of reoffending, and level three is for those who have the highest risk. See State
v. Trujillo, 248 Ariz. 473, 476 (2020).
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and disclose information like their name, website identifier, and vehicle information.

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A.R.S. § 13-3821(I). Senate Bill 1404 adds to these requirements by ordering an offender

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who has “legal custody of a child who is enrolled in school” to report their “child’s name

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and enrollment status” while registering. S.B. 1404 § 1. If the child’s enrollment status

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changes, Senate Bill 1404 requires the offender to report the change within seventy-two

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hours. Id. § 2.

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Senate Bill 1404 also expands the class of sex offenders who are subject to

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community notification. Id. § 3. Prior to Senate Bill 1404, local law enforcement only

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disseminated the information of level two and level three sex offenders to “the surrounding

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neighborhood, area schools, appropriate community groups, and prospective employers.”

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A.R.S. § 13-3825(C)-(D) (2017). Senate Bill 1404 adds “[l]evel one offenders who have

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been convicted of a dangerous crime against children” to the class whose information is

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disseminated by local law enforcement. S.B. 1404 § 3. In addition, it requires local law

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enforcement to notify a child’s school when the child’s parent or legal guardian is a sex

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offender subject to community notification—expanding the reach of community

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notification beyond “area schools” to wherever an offender’s child attends. See id.

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Information disseminated during the community notification process includes the

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offender’s photograph, exact address, offender status, and criminal background. A.R.S.

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§ 13-3825(C).

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Plaintiffs are four individuals who claim their reporting and monitoring

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requirements will be impacted by Senate Bills 1236 and 1404. The first plaintiff, Jane Doe,

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was convicted of two counts of child molestation in 2006.4 (See Doc. 14-1 ¶ 3, ¶ 5.) Both

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counts were classified as dangerous crimes against children under A.R.S. § 13-705. (Id.

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¶ 6). After completing her term of incarceration, Jane Doe underwent Arizona’s sex

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offender risk assessment screening and was classified as a level one offender. (Id. ¶ 12.)

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She will face new community notification requirements under Senate Bill 1404, and her

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status as a sex offender will be published online under Senate Bill 1236. (Id. ¶ 26.) Jane

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Without opposition from Defendants, the Court granted Plaintiffs’ Motion to proceed
under pseudonyms. (Doc. 33.)
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Doe claims these changes to the law will cause “fear for [her] physical safety,” loss of her

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home, “ostracization from [her] community,” and loss of career opportunities. (Id.

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¶¶ 27-30.)

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The second plaintiff, John Doe I, is a level one sex offender who pleaded guilty and

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was convicted of “attempted sexual contact with a minor, sexual abuse, and public sexual

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indecency” in 2016. (Doc. 14-2 ¶ 3, ¶ 8.) Two of those crimes were classified as dangerous

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crimes against children under A.R.S. § 13-705. (Id. ¶ 4.) As a level one offender, John Doe

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I will face new community notification requirements under Senate Bill 1404, and his status

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as a sex offender will be published online under Senate Bill 1236. (Id. ¶ 26.) He claims

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these changes will impact his business through lost customers. (Id. ¶ 28.)

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The third plaintiff, John Doe II, is a level one offender who pleaded guilty to and

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was convicted of attempted child molestation in 2008. (Doc. 14-3 ¶ 4, ¶ 9.) That charge

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was classified as a dangerous crime against children under A.R.S. § 13-705. (Id. ¶ 6.) John

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Doe II has legal custody of his minor child who is currently enrolled in school. (Id. ¶ 3.)

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Senate Bill 1404 will require John Doe II to begin reporting information about his child to

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the local sheriff’s office. (Id. ¶ 29.) It also will require local law enforcement to notify his

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child’s school about his status as a sex offender. (Id.) John Doe II alleges these

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requirements will cause his child to “face risks of harassment, ostracization, and bullying.”

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(Id. ¶ 30.) Moreover, John Doe II claims he “will no longer feel free to visit [his] child at

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their school for fear” of negative social consequences, and he would be forced to reveal to

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his child his status as a sex offender before an appropriate age. (Id. ¶¶ 31-33.)

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The final plaintiff, Minor Doe, is the minor child of John Doe II. (Doc. 14-4 ¶ 4.)

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Minor Doe’s name, school, and enrollment status will be reported to the local sheriff’s

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office under Senate Bill 1404. Minor Doe claims the reporting will violate Minor Doe’s

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privacy. (Id. ¶ 10, ¶ 12.) Minor Doe also claims bullying will occur if the notification

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requirements in Senate Bill 1236 go into effect. (Id. ¶ 11.)

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II.

LEGAL STANDARD

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A party facing irreparable harm prior to the conclusion of litigation may ask a court

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to grant a temporary restraining order or preliminary injunctive relief. Fed. R. Civ. P. 65(b).

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“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter

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v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). For a court to issue a preliminary

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injunction, the movant “must establish that he is likely to succeed on the merits, that he is

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likely to suffer irreparable harm in the absence of preliminary relief, that the balance of

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equities tips in his favor, and that an injunction is in the public interest.” Am. Trucking

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Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter,

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555 U.S. at 20). “When, like here, the nonmovant is the government, the last two Winter

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factors ‘merge.’” Baird v. Bonta, 81 F.4th 1036, 1040 (9th Cir. 2023) (quoting Nken v.

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Holder, 556 U.S. 418, 435 (2009)).

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Normally, a court must consider all four Winter factors when analyzing a request

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for injunctive relief. Id. Yet, when the movant is unable to show a likelihood of success on

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the merits, or that there is at least a “serious question[] going to the merits,” the remaining

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three factors need not be considered. See id.; Shell Offshore, Inc. v. Greenpeace, Inc., 709

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F.3d 1281, 1291 (9th Cir. 2013) (quoting All. for the Wild Rockies v. Cottrell, 632 F.3d

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1127, 1134-35 (9th Cir. 2011)). A serious question on the merits is a lesser showing than

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likelihood of success on the merits. Shell Offshore, Inc., 709 F.3d at 1291. It only warrants

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injunctive relief when “the ‘balance of hardships tips sharply in the movant’s favor,’ and

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the other two Winter factors are satisfied.” See id. (quoting All. for the Wild Rockies, 632

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F.3d at 1134-35).

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III.

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ANALYSIS
A.

Likelihood of Success on the Merits
1.

Ex Post Facto Clause

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Article I, Section 10, of the United States Constitution provides “[n]o State

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shall . . . pass any . . . ex post facto [l]aw.” Known as the Ex Post Facto Clause, this

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command prevents the passage of any law “impos[ing] a punishment for an act which was

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not punishable at the time it was committed; or imposes additional punishment to that then

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prescribed.” Weaver v. Graham, 450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri,

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4 Wall. 277, 325-26 (1866)). In Smith v. Doe, 538 U.S. 84 (2003), the United States

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Supreme Court outlined “the standard for evaluating whether a sex offender registration

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program violates the Ex Post Facto Clause.” United States v. Elkins, 683 F.3d 1039, 1044

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(9th Cir. 2012). That standard comprises two steps. First, a court must “determine whether

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the legislature intended to impose a criminal punishment or whether its intent was to enact

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a nonpunitive regulatory scheme.” Am. C.L. Union of Nev. v. Masto, 670 F.3d 1046, 1053

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(9th Cir. 2012). Intent by a legislature to impose criminal punishment violates the Ex Post

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Facto Clause and ends any further inquiry. Id. If, however, a legislature intends to create a

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civil regulatory scheme, the analysis shifts to Smith’s second step: whether the law is “so

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punitive either in purpose or effect as to negate [the State’s] intention to deem it civil.” Id.

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(quoting Smith, 538 U.S. at 92).

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i.

Legislative Intent

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Smith’s first step examines a “statute’s text and its structure to determine the

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legislative objective.” 538 U.S. at 92. In Clark v. Ryan, the Ninth Circuit Court of Appeals

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held Arizona’s sex offender registration scheme serves a regulatory, nonpunitive purpose.

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See 836 F.3d 1013, 1016 (9th Cir. 2016). The court also found the purpose of Arizona’s

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internet sex offender website was to provide the public with information, id. (citing State

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v. Henry, 224 Ariz. 164, 169 (App. 2010)), and Arizona’s notification requirements are

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intended to protect communities from repeat offenders. See id.; see also State v. Trujillo,

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248 Ariz. 473, 478 (2020). While Clark did not address Arizona’s requirement for sex

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offenders to register with their local sheriff’s office, in a separate case, the Arizona

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Supreme Court explained the requirement seeks to “provide law enforcement with ‘a

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valuable tool’ in locating sex offenders by giving them ‘a current record of the identity and

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location of’ such offenders.’” Trujillo, 248 Ariz. at 478 (quoting State v. Noble, 171 Ariz.

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171, 177 (1992) overruled in part by Trujillo, 248 Ariz. at 480).

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“[S]tatutory interpretation must ‘begi[n] with,’ and ultimately heed what a statute

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actually says.” Groff v. DeJoy, 600 U.S. 447, 468 (2023) (citation omitted). Senate Bills

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1236 and 1404 do not contain any language or labels indicating the new requirements are

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criminal in nature. See Smith, 538 U.S. at 93 (stating labels can be informative of legislative

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intent). They also do not impose any new penalties showing a desire to transform Arizona’s

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regulatory scheme into one designed to punish. See id. Thus, nothing on the face of Senate

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Bills 1236 and 1404 suggest the Arizona Legislature sought to do anything other than

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further its legitimate, regulatory goals of community protection and easy identification by

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law enforcement. See id.

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Looking more broadly at the impact of Senate Bills 1236 and 1404 on Arizona’s

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current sex offender scheme, the registration requirements in place prior to Senate Bill

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1404 required sex offenders to provide their biometric information, online identifier,

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vehicle information, and place of residence (among other things) when registering with

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their local sheriff’s office. A.R.S. § 13-3821 (2021); see also Smith, 538 U.S. at 92 (noting

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the structure of a statute can be instructive in determining legislative intent). Senate Bill

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1404 adds to these requirements by having sex offenders register their child’s name and

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enrollment status. S.B. 1404 § 1. That additional information fits within the stated purpose

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of sex offender registration—providing law enforcement with information that can be used

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to locate a sex offender. See Trujillo, 248 Ariz. at 478. The Court, therefore, finds the new

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reporting requirements do not indicate an intent by the Arizona Legislature to alter

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Arizona’s nonpunitive regulatory objectives.

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Next, under the publishing requirements in place prior to the enactment of Senate

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Bill 1236, level one offenders generally had their information published on Arizona’s sex

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offender website if the victim was under twelve years old or if they committed a serious

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sexual crime. See A.R.S. § 13-3827 (2021). Senate Bill 1236 expands the class of level one

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offenders whose information is published on Arizona’s website. It adds the information of

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any level one offender who was twenty-one years of age or older when they committed an

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offense listed in A.R.S. § 13-3827(A)(2)(b), (d)-(f), (h)-(m), provided the offender was

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sentenced pursuant to A.R.S. § 13-705. See S.B. 1236 § 1.

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Sentences pursuant to A.R.S. § 13-705 involve “dangerous crimes against children.”

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Such crimes are listed in A.R.S. § 13-705(T)(1)(a)-(w) and involve victims under fifteen

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years of age. 5 A.R.S. § 13-705(T)(1). When an adult commits a qualifying offense against

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a child under fifteen, A.R.S. § 13-705 imposes sentencing ranges depending on the crime

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and whether the individual is a repeat offender. See id. § 13-705(A)-(M). The ranges span

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from a statutory minimum of two-and-a-half years imprisonment to a statutory maximum

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of life imprisonment. See, e.g., id. § 13-705(A), (H).

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Importantly, the statutory changes enacted by Senate Bill 1236 match the regulatory

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goals of providing the public with information. See Clark, 836 F.3d at 1016 (finding the

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purpose of Arizona’s internet sex offender website was to provide the public with

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information). Under the old scheme, a level one offender already had their information

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published if they committed a qualifying offense and their victim was under twelve years

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old. A.R.S. § 13-3827 (2021). Senate Bill 1236 takes the offenses already listed under the

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old scheme and adds a new group of level one offenders who are subject to publication.

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S.B. 1236 § 1. That new group is restricted to level one offenders who are sentenced

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pursuant to A.R.S. § 13-705. Id. A sentence pursuant to A.R.S. § 13-705 only occurs when

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the victim is under fifteen years old. A.R.S. § 13-705(T)(1). Such an expansion does not

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indicate an intent to transform Arizona’s scheme into one with punitive intent. See Masto,

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670 F.3d at 1053 (explaining punitive intent is the primary consideration under Smith’s

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first step). Rather, it indicates the Arizona Legislature decided to inform the public of

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certain level one offenders who committed a crime against a child under fifteen, as opposed

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to the old scheme where the public was only informed if the child was under twelve.

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Compare S.B. 1236 § 1, with A.R.S. § 13-3827 (2021). The Court finds the new publishing

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requirements do not indicate an intent to alter Arizona’s regulatory objectives.

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The statutory definition of “[d]angerous crimes against children” includes more offenses
than those listed in A.R.S. § 13-3827(A)(2)(b), (d)-(f), (h)-(m). For example, it includes
crimes like second degree murder, aggravated assault, and involving or using minors in
drug offenses. A.R.S. § 13-705(T)(1)(a)-(b), (m).
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Finally, before the enactment of Senate Bills 1236 and 1404, only level two and

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level three sex offenders had their information disseminated to the local community. A.R.S.

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§ 13-3825(C) (2021). Senate Bill 1404 expands community notification to “level one

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offenders who have been convicted of a dangerous crime against children, as defined in

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section 13-705.” S.B. 1404 § 3. That expansion, though, is consistent with the underlying

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purpose of Arizona’s community notification scheme: to protect the community from

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potential repeat sex offenders. See Clark, 836 F.3d at 1016. Sex offenders convicted of a

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dangerous crime against children have previously targeted some of the most vulnerable

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members of the community—children under fifteen. See A.R.S. § 13-705(T)(1). Making

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parents aware of their presence only furthers the nonpunitive goals of Arizona’s scheme.

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The Court, therefore, finds the new notification requirements do not indicate an intent to

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alter Arizona’s regulatory objectives.

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Plaintiffs argue punitive intent is shown through the statements of a single state

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legislator. (Doc. 14 at 16.) Senator Janae Shamp, the sponsor of Senate Bills 1236 and

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1404, issued a press release after the Governor signed both bills. Part of the press release

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said:

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This session, I made it my goal to be a living nightmare for sex
offenders . . . . I introduced several bills, including SB 1236
and SB 1404, to protect our state’s most innocent and
vulnerable, while increasing consequences for criminals who
commit these horrific crimes. [Dangerous crimes against
children] include sex trafficking, mutilation, prostitution, and
commercial exploitation. These crimes have lifelong, and
potentially deadly effects on a child. Every parent and every
school deserves to know who these criminals are in order to
better protect their children.
Arizona Senate Republicans, Senator Shamp Champions Legislation to Protect Arizona’s
Children, Off. Website of the Ariz. State Senate Republican Caucus (Apr. 16, 2024),
https://www.azsenaterepublicans.gov/post/senator-shamp-champions-legislation-toprotect-arizona-s-children (internal quotation marks omitted).
It is well established legislative intent cannot be gleaned from a single legislator’s
statements. See Ratha v. Rubicon Res., LLC, 111 F.4th 946, 968 (9th Cir. 2024). This is
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especially true when the statement was made after the legislation was enacted. See id. As

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the United States Supreme Court explained, “[w]hat motivates one legislator to make a

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[statement] about a statute is not necessarily what motivates scores of others to enact it.”

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United States v. O’Brien, 391 U.S. 367, 384 (1968). Senate Bills 1236 and 1404 are fairly

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read as in line with Arizona’s preestablished and judicially recognized regulatory goals.

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Thus, the Court finds Plaintiffs’ argument unpersuasive.

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Plaintiffs also argue punitive intent is shown through comments made during

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committee hearings on Senate Bills 1236 and 1404. (See, e.g., Doc. 95 at 2-3.) Discussions

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held during a committee hearing are part of a bill’s legislative history, which the Court can

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consider when textual indicators of intent are lacking. See Ratha, 111 F.4th at 968. But the

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text of Senate Bills 1236 and 1404 is sufficiently clear to find a lack of punitive intent.

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What’s more, even assuming Plaintiffs’ argument has some merit, it asks the Court to

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invalidate the significant bipartisan support each bill received throughout the legislative

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process based on conversations between a select group of legislators. That, in essence,

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creates the same interpretive problem as relying on Senator Shamp’s press release. See

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O’Brien, 391 U.S. at 384. Accordingly, the Court concludes Senate Bills 1236 and 1404

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do not indicate an intent to impose criminal punishment under Smith’s first step.

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ii.

Punitive Purpose or Effect

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Even when laws are enacted with a regulatory goal in mind, they can still violate

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the Ex Post Facto Clause by being “so punitive either in purpose or effect as to negate the

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State’s intention to deem [them] civil.” Smith, 538 U.S. at 92. Five factors help delineate

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when punitive effect has occurred. Id. at 97. They are “the degree to which the regulatory

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scheme imposes a sanction that (1) has historically been regarded as punishment;

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(2) constitutes an affirmative disability or restraint; (3) promotes the traditional aims of

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punishment; (4) is rationally connected to a nonpunitive purpose; and (5) is excessive in

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relation to the identified nonpunitive purpose.” Masto, 670 F.3d at 1055. When weighing

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these factors, “‘only the clearest proof’ of punitive effect is sufficient to override

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the . . . legislature’s intent to create a civil regulation.” Id. (quoting Smith, 538 U.S. at 92).

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This is a high burden; “even a showing that most of the relevant factors weigh in favor of

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considering a punishment criminal in nature may be insufficient to transform [a civil law]

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into a criminal punishment.” United States v. Reveles, 660 F.3d 1138, 1143 (9th Cir. 2011).

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a.

Historical Form of Punishment

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The first Smith factor analyzes “the degree to which the regulatory scheme imposes

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a sanction that . . . has historically been regarded as punishment.” Masto, 670 F.3d at 1055.

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This factor helps discern punitive effect “because a State that decides to punish an

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individual is likely to select a means deemed punitive by our tradition, so that the public

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will recognize it as such.” Smith, 538 U.S. at 97.

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Plaintiffs argue “the judicial history in Arizona” has traditionally viewed sex

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offender registration as punitive. (Doc. 95 at 4.) Plaintiffs recognize Smith and Trujillo

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“concluded that registration laws have not been historically regarded as punishment.” (Id.)

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Yet Plaintiffs claim “Smith and Trujillo cannot erase the fact that for at least three decades

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registration laws were recognized as punishment in Arizona.” (Id.)

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Plaintiffs’ reference invokes State v. Noble, 171 Ariz. 171 (1992). There, the

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Arizona Supreme Court held sex offender registration was a historical form of punishment.

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Id. at 176. The court, however, later overruled Noble’s holding in Trujillo and affirmed that

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Arizona follows federal precedent under the first Smith factor. 248 Ariz. at 480

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(“Nonetheless, we agree with Smith and disapprove Noble’s conclusion on this point.”).

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Thus, Noble is only relevant to the extend federal precedent allows states like Arizona to

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have a unique understanding of punishment.

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In Smith v. Doe, the United States Supreme Court held registration and notification

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requirements do not align with a historical understanding of punishment. 538 U.S. at 98-99.

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To reach this conclusion, the Smith court compared registration and notification

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requirements against colonial-era punishments like public shaming, humiliation, and

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banishment. Id. at 98. The Court found those colonial-era penalties were dissimilar from

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registration and notification because they did not involve the dissemination of truthful

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information in furtherance of a legitimate governmental interest. Id. at 98-99.

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From Smith’s reasoning, it is apparent this first factor compares founding-era

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punishments against modern legislation. See id. Thus, any Arizona “judicial history” is

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irrelevant to the Court’s analysis. (Doc. 95 at 4.) Senate Bills 1236 and 1404 only concern

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Arizona’s registration and notification requirements. Smith and Trujillo have already held

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those types of requirements do not align with a historical understanding of punishment.

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538 U.S. at 98; 248 Ariz. at 480-81. The Court concludes Senate Bills 1236 and 1404 do

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not impose a historical form of punishment. This means the first Smith factor indicates the

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effect of Senate Bills 1236 and 1404 are regulatory and nonpunitive.

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b.

Affirmative Disability or Restraint

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The second Smith factor analyzes “the degree to which the regulatory

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scheme . . . constitutes an affirmative disability or restraint.” Masto, 670 F.3d at 1055. This

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factor looks at the effects of a challenged law by asking whether it prevents the regulated

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class from pursuing certain activities, careers, or places to live. See Smith,

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538 U.S. at 99-100.

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Plaintiffs argue affirmative disability or restraint is shown through the

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“employment, housing, mental health, and custodial and legal decision-making concerns”

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they would face if Senate Bills 1236 and 1404 went into effect. (Doc. 95 at 4.) The Smith

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court considered a similar argument and held “substantial occupational or housing

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disadvantages” do not constitute affirmative disability or restraint because those

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“consequences flow . . . from the fact of conviction, already a matter of public record.” See

21

538 U.S. at 100-01. Plaintiffs’ alleged injuries flow from their prior convictions. Thus,

22

even if those injuries are accurate, they would still not impose any affirmative disability or

23

restraint under Smith. See id.

24

Amicus Arizona Civil Liberties Union (the “AzCLU”) also discussed affirmative

25

disability or restraint in its briefing to the Court. The AzCLU argues Arizona’s registration

26

scheme imposes significant affirmative disabilities and restraints on sex offenders. (Doc.

27

122 at 5.) The AzCLU compares Arizona’s scheme against the statute found constitutional

28

in Smith. (Id. at 5-6.) It notes Arizona’s scheme is different because it requires sex offenders

- 12 -

1

to update their driver’s license photo and address annually, register their information in

2

person, and not live within one thousand feet of schools and childcare facilities. (Id.) The

3

AzCLU further emphasizes Arizona’s scheme allows law enforcement to conduct annual,

4

unannounced checks of a sex offender’s home. (See id. at 6.) Based on these differences,

5

the AzCLU believes Arizona’s scheme imposes greater disability and restraint than the

6

statute considered in Smith. (See id.) It asks the Court to find the second Smith factor favors

7

finding punitive effect.

8

Much of the AzCLU’s argument is foreclosed by the Ninth Circuit Court of Appeals

9

opinion in Masto. There, sex offenders challenged a Nevada law under the Ex Post Facto

10

Clause, and their argument under the second Smith factor also attempted to show

11

affirmative disability through an in-person registration requirement. Masto, 670 F.3d at

12

1051, 1056. The Ninth Circuit read Smith as not “holding that in person registration

13

necessarily constitutes an affirmative disability” because “[t]he requirement that sex

14

offenders present themselves for fingerprinting is not akin to imprisonment, and the burden

15

remains less onerous than occupational debarment.” Id. at 1056-57. Notably, the Nevada

16

statute at issue in Masto required certain sex offenders to update their information every

17

ninety days, but the court still held it did not impose an affirmative disability. Id.

18

Sex offenders in Arizona must update their registration information annually or

19

within seventy-two hours of their information becoming outdated. See A.R.S.

20

§ 13-3821(J); A.R.S. § 13-3822. They also must register with the local sheriff’s office

21

anytime they remain in a new county for more than seventy-two hours.

22

A.R.S. § 13-3821(A). Senate Bill 1404 affects those requirements by obligating sex

23

offenders to now provide their child’s name and enrollment status during registration. S.B.

24

1404 §§ 1-2.

25

Most of Arizona’s reporting requirements are predicated on a voluntary act (i.e., a

26

sex offender staying in a new county for more than seventy-two hours or deciding to move

27

or otherwise change their registration information). The only requirement not predicated

28

on a voluntary act is sex offenders needing to update their registration information every

- 13 -

1

year. A.R.S. § 13-3821(J). In Masto, the Ninth Circuit upheld a similar requirement that

2

required sex offenders to update their information every three months. 670 F.3d at 1056.

3

When compared, Arizona’s in-person registration requirement is less restrictive than the

4

one upheld in Masto. See id. The Court, therefore, finds Arizona’s one year requirement

5

does not impose affirmative disability. See id. Regarding Arizona’s other registration

6

requirements, the Court finds that none are akin to imprisonment or as onerous as

7

occupational disbarment. See id. at 1056-57; see also Smith, 538 U.S. at 100.

8

Next, the AzCLU argues affirmative disability is shown through level three sex

9

offenders being unable to live within one thousand feet of schools and childcare facilities.

10

(Doc. 122 at 6); see also A.R.S. § 13-3727(A). Senate Bills 1236 and 1404 do not implicate

11

this restriction. The AzCLU’s argument, therefore, is beyond the scope of this lawsuit and

12

the narrow question at issue here—whether Senate Bills 1236 and 1404 are so punitive in

13

their effect to negate the Arizona Legislature’s intent to enact a regulatory law. Smith, 538

14

U.S. at 92.

15

Finally, the AzCLU argues affirmative disability is shown through sex offenders

16

being subject to annual, unannounced checks by law enforcement. (Doc. 122 at 6.) The

17

AzCLU does not provide a specific citation for its assertion that sex offenders are subject

18

to annual, unannounced checks. But A.R.S. § 13-3827(G) requires the Arizona Department

19

of Public Safety to annually verify the addresses of all sex offenders. Senate Bills 1236 and

20

1404 do not implicate this restriction. The argument is also beyond the scope of this

21

lawsuit. Smith, 538 U.S. at 92.

22

The Court, therefore, concludes Senate Bills 1236 and 1404 do not impose any

23

affirmative disability or restraint. The second Smith factor indicates the effects of Senate

24

Bills 1236 and 1404 are regulatory and nonpunitive.

25

c.

Traditional Aims of Punishment

26

The third Smith factor analyzes “the degree to which the regulatory

27

scheme . . . promotes the traditional aims of punishment,” which are deterrence and

28

retribution. Masto, 670 F.3d at 1055, 1057. Every form of government regulation includes

- 14 -

1

some degree of deterrent effect, so Smith’s third factor compares a challenged law against

2

the normal consequences of government conduct. See Smith, 538 U.S. at 102.

3

Plaintiffs argue “decades of data [has] found no significant evidence that registries

4

prevent sex crimes, and [instead] indicate that the laws imposed on sex offenders make

5

them more likely to commit crimes (with no sexual element) in the future due to the harsh

6

restrictions that impact housing, employment, and supportive community resources.” (Doc.

7

95 at 5.) Plaintiffs provide an expert report to support their argument. (Doc. 95-1.) The

8

report draws on publications and online research to conclude that incarcerated sex

9

offenders “have decreased levels of sexual and non-sexual recidivism, as compare[d] to

10

other types of criminal typologies.” (See id. ¶ 3, ¶ 8.) It also concludes “empirical research”

11

indicates the risk of recidivism among incarcerated sex offenders “varies based on [the]

12

individual and the circumstances.” (See id. ¶ 13.) And incarcerated sex offenders “do not

13

present [an] enduring risk of sexual [re]offending across the[ir] lifespan” because the “risk

14

is decreased by the amount of time offense-free, as well as the age of the individual.” (See

15

id. ¶ 18.)

16

Plaintiffs’ expert report does not address the degree to which Senate Bills 1236 and

17

1404 “promote[] the traditional aims of punishment.” Masto, 670 F.3d at 1055. Instead, it

18

makes generalized conclusions about sex offenders and their likelihood to reoffend. (See

19

Doc. 95-1 ¶ 3, ¶ 8, ¶ 13, ¶ 18.) Those conclusions are not helpful to the Court’s analysis

20

under the third Smith factor.

21

Moreover, Plaintiffs’ argument that “the laws imposed on sex offenders make them

22

more likely to commit crimes” cuts in favor of finding Senate Bills 1236 and 1404 as

23

regulatory and nonpunitive. (Doc. 95 at 5.) If registration and notification requirements

24

encourage lawlessness, as Plaintiffs suggest, then they are not serving any deterrent effect

25

and thus not promoting a traditional aim of punishment. See Masto, 670 F.3d at 1055.

26

With there being no direct challenge to Senate Bills 1236 and 1404 under this factor,

27

the Court concludes Senate Bills 1236 and 1404 do not promote a traditional aim of

28

punishment. The third Smith factor indicates the effects of both bills are regulatory and

- 15 -

1

nonpunitive.

2

d.

Rational Connection to a Nonpunitive Purpose

3

The fourth Smith factor analyzes “the degree to which the regulatory scheme . . . is

4

rationally connected to a nonpunitive purpose.” Masto, 670 F.3d at 1055. The Supreme

5

Court identifies this factor as the most significant when determining punitive effect. Smith,

6

538 U.S. at 102.

7

Plaintiffs argue Senate Bills 1236 and 1404 are not rationally connected because

8

they “eliminate the narrow tailoring to any civil regulatory purpose.” (Doc. 95 at 5.)

9

Plaintiffs explain Arizona’s scheme prior to the enactment of Senate Bills 1236 and 1404

10

“had a rational connection to the State’s interest in public safety.” (Id.) But by changing

11

the notification and reporting requirements for level one sex offenders convicted of a

12

dangerous crime against children, Plaintiffs believe there is no longer any “connection

13

between notifying the community . . . and public safety.” (Id.)

14

In Smith, the United State Supreme Court considered a registration and notification

15

law that did not tailor between different types of offenders. See 538 U.S. at 90-91. Despite

16

this, the Court still held the statute was rationally connected to a legitimate nonpunitive

17

purpose of “public safety, which [the statute] advanced by alerting the public to the risk of

18

sex offenders in their community.” See id. at 102-03. The Court explained a statute should

19

not be “deemed punitive simply because it lacks a close or perfect fit with the nonpunitive

20

aim it seeks to advance.” Id. at 103. Rather, the focus should be on the broader goals of the

21

legislation at issue. See id.

22

Like Smith, “Arizona’s registration [and notification scheme] clearly has ‘a

23

legitimate nonpunitive purpose of public safety . . . advanced by alerting the public to the

24

risk of sex offenders.’” See Clark, 836 F.3d at 1018 (quoting Smith, 538 U.S. at 102-03).

25

Senate Bills 1236 and 1404 are fairly read as in line with Arizona’s preestablished and

26

judicially recognized goal of public safety. See supra Section III(A)(1)(i). Thus, both bills

27

are rationally connected to a nonpunitive purpose.

28

- 16 -

1

Plaintiffs attempt to demonstrate a lack of rational connection by arguing Senate

2

Bills 1236 and 1404 are not a close or perfect fit to Arizona’s goal of public safety. (See

3

Doc. 95 at 5.) Smith, however, says such a connection is not required. See 538 U.S. at 103.

4

The Court, therefore, concludes Senate Bills 1236 and 1404 are rationally connected to the

5

nonpunitive purpose of public safety. The fourth Smith factor indicates the effects of both

6

bills are regulatory and nonpunitive.

7
8
9

e.

Excessive in Scope

The final Smith factor analyzes “the degree to which the regulatory scheme . . . is
excessive in relation to the identified nonpunitive purpose.” Masto, 670 F.3d at 1055.

10

This factor represents the cornerstone of Plaintiffs’ ex post facto argument.

11

Plaintiffs argue the registration scheme that was in place before Senate Bills 1236 and 1404

12

“ha[d] always focused on the actual offender . . . not the offense they may have been

13

charged with many years ago.” (Doc. 14 at 11.) That individual tailoring, according to

14

Plaintiffs, is eliminated by Senate Bills 1236 and 1404 and creates a system where

15

“registration is no longer reasonably related to providing the public with notification

16

commensurate to the danger posed” by individual offenders. (Id. at 13.) Plaintiffs argue

17

this change means Senate Bills 1236 and 1404 “are not tailored to advance the State’s

18

interest in public safety and are excessive in relation to their regulatory purpose.” (Id. at

19

11.) They conclude by noting Senate Bills 1236 and 1404 were “not the result of any study

20

or finding that low level registrants . . . pose[d] any risk to the community.” (Id. at 14.)

21

Defendants respond that Plaintiffs’ “argument is directly foreclosed by Smith.”

22

(Doc. 86 at 13.) They argue “Arizona’s registration laws are actually narrower than the

23

laws upheld in Smith.” (Id. at 14.) Defendants, therefore, believe Smith expressly allows

24

the Arizona Legislature to tailor their statutory scheme however they please. (See id.)

25

Defendants conclude by arguing the Arizona Legislature was not required to conduct a

26

study before passing Senate Bills 1236 and 1404. (See id.)

27

In Smith, the United States Supreme Court upheld a statute requiring “any sex

28

offender or child kidnapper who is physically present in the state . . . to register with the

- 17 -

1

local law enforcement authorities” and have their information published on the internet.

2

538 U.S. at 90-91 (internal quotation marks omitted). When deciding whether the law was

3

excessive, the Court noted “the Ex Post Facto Clause does not preclude a State from making

4

reasonable categorical judgments.” Id. at 103. Nor does the clause automatically make a

5

statute punitive because a state decided “to legislate with respect to convicted sex offenders

6

as a class, rather than require individual determinations of their dangerousness.” Id. at 105.

7

Smith thus forecloses Plaintiffs’ other argument that Arizona’s scheme requires tailoring

8

to be constitutional. See id. at 105. It does not, however, foreclose Plaintiffs’ argument that

9

Senate Bills 1236 and 1404 are unreasonable in light of their nonpunitive objectives. See

10

id. That question requires further analysis.

11

The reasonableness inquiry asks “whether the regulatory means chosen are

12

reasonable in light of the nonpunitive objective.” See id. It does not ask “whether the

13

legislature has made the best choice possible to address the problem it seeks to remedy.”

14

See id.; see also Masto, 670 F.3d at 1057. In Arizona, a “[d]angerous crime against

15

children” means a child under fifteen years of age was the victim of a statutorily

16

enumerated crime. See A.R.S. § 13-705(T). That victim profile, coupled with the fact sex

17

offenders have a “frightening and high” risk of recidivism, could have prompted the

18

enactment of Senate Bills 1236 and 1404. See Smith, 538 U.S. at 103 (quoting McKune v.

19

Lile, 536 U.S. 24, 34 (2002)); see also id. (assessing reasonableness based on what the

20

legislature could have concluded). Children under the age of fifteen generally have no

21

ability to protect themselves, and their safety is almost entirely dependent on their parents

22

or legal guardians or law enforcement. By increasing the notification requirements for

23

certain level one sex offenders, Senate Bills 1236 and 1404 are reasonably related to the

24

legitimate interest of public safety because they allow parents and guardians to choose the

25

amount of interaction and exposure their child has with a sex offender.

26

Moreover, the Arizona Legislature could have concluded the reporting requirements

27

in Senate Bill 1404 gave law enforcement another “valuable tool” to locate sex offenders.

28

Trujillo, 248 Ariz. at 478. If a sex offender has legal custody of a child, it is reasonable to

- 18 -

1

assume they may be found at their child’s school. This is especially true in the case of an

2

absconding sex offender. In those instances, the child’s school may provide a convenient

3

location for the sex offender to contact their child while avoiding police. Therefore, the

4

increased ability for law enforcement to locate a sex offender under Senate Bill 1404 means

5

the bill reasonably relates to public safety.

6

Plaintiffs argue Senate Bills 1236 and 1404 are unreasonable because they were

7

“not the result of any study or finding that low level registrants . . . pose any risk to the

8

community.” (Doc. 14 at 14.) They provide authority from the Sixth Circuit Court of

9

Appeals and some state courts to support their argument. (Doc. 95 at 6-7.)

10

The Court acknowledges the cases cited by Plaintiffs found ex post facto violations.

11

See, e.g., Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016) (finding amendments to

12

Michigan’s sex offender law were unconstitutional). But other cases decided by the United

13

States Supreme Court and Ninth Circuit Court of Appeals, such as Smith, Masto, and Clark,

14

are binding on this Court’s reasoning, and none of those cases suggest reasonableness

15

depends on a study or finding. See 538 U.S. at 104-05; 670 F.3d at 1057; 836 F.3d at

16

1018-19. In addition, the Court notes the cases cited by Plaintiffs concern statutes that

17

differ from Arizona’s scheme. See, e.g., Does # 1-5, 834 F.3d at 698 (analyzing a statute

18

that prevented sex offenders “from living, working, or ‘loitering’ within 1,000 feet of a

19

school”) (emphasis added); Wallace v. State, 905 N.E. 2d 371, 383 (Ind. 2009) (“In this

20

jurisdiction the Act makes information on all sex offenders available to the general public

21

without restriction and without regard to whether the individual poses any particular future

22

risk.”). Thus, Plaintiffs’ argument is unpersuasive. The Court concludes Senate Bills 1236

23

and 1404 are not excessive in relation to their identified nonpunitive purpose of public

24

safety. The final Smith factor indicates the effects of both bills are regulatory and

25

nonpunitive.

26

Having found none of the Smith factors point toward punitive effect, Plaintiffs’ ex

27

post facto argument is not likely to succeed on the merits. Senate Bills 1236 and 1404 fit

28

comfortably within Arizona’s nonpunitive regulatory scheme, and neither bill comes close

- 19 -

1

to imposing sanctions evincing punitive purpose or effect. See Masto, 670 F.3d at 1053.

2

2.

Procedural Due Process

3

Procedural due process claims are analyzed in two steps. “[T]he first asks whether

4

there exists a liberty or property interest which has been interfered with by the State; the

5

second examines whether the procedures attendant upon that deprivation were

6

constitutionally sufficient.” United States v. Juvenile Male, 670 F.3d 999, 1013 (9th Cir.

7

2012) (quoting Carver v. Lehman, 558 F.3d 869, 872 (9th Cir. 2009)).

8

Plaintiffs argue registration and notification requirements implicate a liberty interest

9

under the stigma-plus standard. (Doc. 95 at 7.) They also argue Senate Bills 1236 and 1404

10

lack constitutionally sufficient procedures because “Arizona’s . . . public notification

11

scheme has always been rationalized by a need to inform the community for its safety.”

12

(See id. at 8.)

13

The Ninth Circuit Court of Appeals has not decided whether registration and

14

notification requirements implicate a liberty interest under the Due Process Clause. But it

15

has considered whether the procedures attendant to a presumed deprivation are

16

constitutionally sufficient. In Masto, the Ninth Circuit considered a state law that based

17

registration and notification requirements “solely on [the offender’s] crime of conviction.”

18

See 670 F.3d at 1050. The sex offenders in that case argued the Due Process Clause

19

required the state to provide a “hearing to determine whether or not they were in fact

20

convicted.” Id. at 1059. The court held a hearing would be a “bootless exercise”

21

considering “the fact of conviction is something ‘that a convicted offender has already had

22

a procedurally safeguarded opportunity to contest’” at trial. See id. (quoting Conn. Dep’t

23

of Pub. Safety v. Doe, 538 U.S. 1, 7-8 (2003)). Thus, there was no factual dispute a hearing

24

could serve to resolve. Id.

25

The changes implemented by Senate Bills 1236 and 1404 turn on a level one

26

offender being convicted of a “dangerous crime against children.” S.B. 1236 § 1; S.B. 1404

27

§§ 1-3. Like Masto, that classification is made at trial, see, e.g., State v. Smith, 250 Ariz.

28

69, 94 (2020), meaning level one offenders already had “a procedurally safeguarded

- 20 -

1

opportunity to contest” the classification. See Masto, 670 F.3d at 1059. As such, requiring

2

Arizona conduct a hearing on the applicability of Senate Bills 1236 and 1404 to individual

3

level one offenders would be a “bootless exercise.” See id. There are no remaining factual

4

disputes a hearing could resolve. See id.

5

Plaintiffs attempt to distinguish Senate Bills 1236 and 1404 from Masto because

6

“Arizona’s . . . public notification scheme has always been rationalized by a need to inform

7

the community for its safety.” (Doc. 95 at 7-8.) That argument, however, is irrelevant. “The

8

Due Process Clause does not entitle an individual to a hearing unless there is ‘some factual

9

dispute’ that a hearing could serve to resolve.” Masto, 670 F.3d at 1059. The underlying

10

purpose of Arizona’s notification scheme does create a factual dispute that needs resolving.

11

Level one sex offenders were either convicted of a dangerous crime against children at trial

12

or they were not. As such, the Court finds Plaintiffs’ argument unpersuasive.

13

Plaintiffs’ procedural due process claim is not likely to succeed on the merits.

14

3.

Substantive Due Process

15

Substantive due process claims “first consider whether the statute in question

16

abridges a fundamental right.” Juvenile Male, 670 F.3d at 1011. If the answer is yes, “the

17

statute will be subject to strict scrutiny and is invalidated unless it is ‘narrowly tailored to

18

serve a compelling state interest.’” Id. at 1012 (quoting Reno v. Flores, 507 U.S. 292, 302

19

(1993)). Otherwise, “the statute need only bear a ‘reasonable relation to a legitimate state

20

interest to justify the action.’” Id. (quoting Washington v. Glucksberg, 521 U.S. 702, 722

21

(1997)).

22

Plaintiffs do not make any substantive due process arguments in their Motion for a

23

Preliminary Injunction. Plaintiffs, therefore, fail to satisfy their burden for a preliminary

24

injunction. Winter, 555 U.S. at 20 (stating the burden rests with the moving party).

25

Even assuming Plaintiffs’ argument was adequately raised, it would still fail under

26

the governing law. Sex offenders do not have a fundamental right to be free from

27

registration schemes, and as previously discussed herein, Senate Bills 1236 and 1404

28

satisfy rational basis review because they are reasonably related to Arizona’s established

- 21 -

1

sex offender registration scheme. See Juvenile Male, 670 F.3d at 1012; supra Section

2

III(A)(1)(ii)(d).

3

4.

Equal Protection Clause

4

The Equal Protection Clause requires “strict scrutiny if the aggrieved party is a

5

member of a protected or suspect class, or otherwise suffers the unequal burdening of a

6

fundamental right.” Juvenile Male, 670 F.3d at 1009. Sex offenders are not a protected

7

class. Id. Legally defined offender classifications based on criminal history is not a suspect

8

classification. See United States v. LeMay, 260 F.3d 1018, 1030 (9th Cir. 2001); Benson v.

9

Ariz. State Bd. Of Dental Examiners, 673 F.2d 272, 277 n.15 (9th Cir. 1982) (explaining

10

suspect classifications involve distinctions based on immutable characteristics like race and

11

nationality, while quasi-suspect classifications involve distinctions based on gender). And

12

“persons who have been convicted of serious sex offenses do not have a fundamental right

13

to be free from registration and notification requirements.” Doe v. Tandeske, 361 F.3d 594,

14

597 (9th Cir. 2004).

15

When government action does not implicate a core aspect of the Equal Protection

16

Clause, rational basis review applies. Juvenile Male, 670 F.3d at 1009. Rational basis

17

review asks if “there is any reasonably conceivable state of facts that could provide a

18

rational basis for the classification.” F.C.C. v. Beach Commc’ns. Inc., 508 U.S. 307, 313

19

(1993).

20

Plaintiffs agree rational basis review applies. (See Doc. 95 at 7.) They argue Senate

21

Bills 1236 and 1404 are irrational because “[t]here is no meaningful or demonstrated

22

distinction between” level one sex offenders who have committed a dangerous crime

23

against children and level one offenders who have not. (See Doc. 14 at 18.) Both groups,

24

according to Plaintiffs, “committed an offense that requires sex offender registration,

25

[were] evaluated by [the Department of Public Safety], and [were] found to be the same

26

low risk of reoffending.” (Doc. 95 at 7.)

27

Senate Bills 1236 and 1404 promote the legitimate governmental interest of public

28

safety. See supra Section III(A)(1)(ii)(d). They effectuate that interest by requiring

- 22 -

1

increased notification requirements for sex offenders who pose a greater risk to the

2

community based on their victim profile, and by equipping law enforcement with

3

additional information to locate offenders. This satisfies rational basis review. Beach

4

Commc’ns, 508 U.S. at 313 (stating rational basis review only requires there be “any

5

reasonably conceivable state of facts that could provide a rational basis for the

6

classification”).

7

5.

Vagueness

8

The prohibition against vague laws is rooted in the Due Process Clauses of the Fifth

9

and Fourteenth Amendments. See United States v. Williams, 553 U.S. 285, 304 (2008); see

10

also Carissa Byrne Hessick, Vagueness Principles, 48 Ariz. St. L.J. 1137, 1140-41 (2016)

11

(discussing the intersection of insufficiently precise language and the due process clauses).

12

A criminal statute is vague when it fails to “define the criminal offense with sufficient

13

definiteness that ordinary people can understand what conduct is prohibited and in a

14

manner that does not encourage arbitrary and discriminatory enforcement.” Beckles v.

15

United States, 580 U.S. 256, 262 (2017). When vagueness is challenged outside the

16

confines of the First Amendment, the challenging party must sustain an as-applied

17

challenge before the court will consider facial vagueness. Kashem v. Barr, 941 F.3d 358,

18

375 (9th Cir. 2019).

19

Plaintiffs argue the phrases “appropriate community groups,” “prospective

20

employers,” and “enrollment status” are impermissibly vague. (Doc. 14 at 18-19.)

21

“[A]ppropriate community groups” and “prospective employers” are part of Arizona’s

22

community notification requirements, which mandate local law enforcement to “notify the

23

community of the offender’s presence in the community pursuant to subsection C of this

24

section.” A.R.S. § 13-3825(D). Subsection (C) requires the dissemination of a sex

25

offender’s information “to the surrounding neighborhood, area schools, appropriate

26

community groups and prospective employers.” A.R.S. § 13-3825(C)(1). Senate Bill 1404

27

adds to these requirements by directing law enforcement to disseminate an offender’s

28

information to “the[ir] child’s school” if a sex offender “has legal custody of a child.” S.B.

- 23 -

1

1404 § 3.

2

The phrases “appropriate community groups” and “prospective employers” do not

3

impose a criminal offense on sex offenders. Rather, they direct where law enforcement

4

should disseminate information as part of their community notification requirements. Such

5

a command does not implicate the void-for-vagueness doctrine. See Beckles, 580 U.S. at

6

266 (explaining the vagueness doctrine only applies when a law regulates a person or

7

entity).6 Thus, Plaintiffs’ challenge as to those phrases fail.

8

That leaves Plaintiffs’ challenge to the phrase “enrollment status.” (Doc. 14 at 19.)

9

Senate Bill 1404 requires a sex offender who “has legal custody of a child who is enrolled

10

in school” to provide their “child’s name and enrollment status” to the local sheriff’s office.

11

S.B. 1404 § 1. “School” is defined in Senate Bill 1404 as “a public or nonpublic

12

kindergarten program, common school or high school.” Id. If there is a change in

13

enrollment status, a sex offender must provide the sheriff’s office with updated

14

information. Id. at § 2. Failure to comply with the enrollment or updating requirement is a

15

class 4 felony. A.R.S. § 13-3824.

16

An ordinary person would understand that “enrollment status” refers to the earlier

17

clause “a child who is enrolled in school.” See id. at § 1. Senate Bill 1404 adequately

18

defines what institutions are considered a “school.” Id. Accordingly, the phrase

19

“enrollment status” is sufficiently clear on what information a sex offender must provide

20

and what information the sheriff’s office must collect. See Beckles, 580 U.S. at 266.

21

Plaintiffs’ challenge as to this phrase also fails.

22
23

Because none of the phrases challenged by Plaintiffs run afoul of the
void-for-vagueness doctrine, their argument is not likely to succeed on the merits.

24

6.

First Amendment

25

The First Amendment “includes both the right to speak freely and the right to refrain

26

from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977). That later right—the

27
6

28

In addition, both phrases have been in Arizona law since at least 1997. See 1997 Ariz.
Sess. Laws ch. 136 § 26. That provides some persuasive evidence that both terms are
sufficiently clear.
- 24 -

1

right to refrain from speaking—implicates the compelled speech doctrine. The compelled

2

speech doctrine involves two, broad First Amendment protections. See Eugene Volokh,

3

The Law of Compelled Speech, 97 Tex. L. Rev. 355, 358 (2018). It protects against “speech

4

compulsions that also restrict speech—for instance by compelling newspaper editors or

5

parade organizers to include certain material, and thus restricting them from creating

6

precisely the newspaper or parade that they want to create.” Id. It also protects against

7

“some ‘pure speech compulsions,’ which do not restrict speech but which unduly intrudes

8

on the compelled person’s autonomy.” Id.

9

Plaintiffs offer only bare assertions in their Motion for a Preliminary Injunction.

10

They argue Senate Bill 1404 “compel[s] Level One registrants to engage in speech which

11

they do not wish to make.” (See Doc. 14 at 19.) And “the amendment[] forces parents to

12

disclose identifying and/or locating information regarding their minor children.” (Id. at 20.)

13

Plaintiffs’ reply brief is equally unhelpful. They cite to Book People, Inc. v. Wong, 91 F.4th

14

318, 399-40 (2024), to support their First Amendment argument. (Doc. 95 at 8.) Wong,

15

however, concerns compelled commercial speech, whereas Plaintiffs’ First Amendment

16

claim concerns purely non-commercial speech. See 91 F.4th at 399-40; (Doc. 14 at 19-20.)

17

Thus, Plaintiffs fail to satisfy their burden for a preliminary injunction. See Winter, 555

18

U.S. at 20 (stating the burden rests with the moving party). Even assuming that Plaintiffs’

19

argument was adequately raised, it would still fail under the governing law.

20

In Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781

21

(1988), the United States Supreme Court considered a state law that required professional

22

fundraisers to disclose to potential donors “the average percentage of gross receipts

23

actually turned over to charities . . . within the previous 12 months.” Id. at 786. The Court

24

began by stating that “[m]andating speech that a speaker would not otherwise make”

25

implicates the compelled speech doctrine, regardless of whether the compulsion involves

26

a statement of fact or statement of opinion. See id. at 795, 798. The Court then applied a

27

strict scrutiny analysis and held the state did not present a “weighty” enough interest, nor

28

were the means chosen to accomplish the interest narrowly tailored. See id. at 798. Yet the

- 25 -

1

Court noted, “as a general rule,” the restriction would have been narrowly tailored if “the

2

State . . . itself publish[ed] the detailed financial disclosure forms it requires professional

3

fundraisers to file.” See id. at 800.

4

Senate Bills 1236 and 1404 require certain level one offenders to disclose facts that

5

are then disseminated to the public. S.B. 1236 § 1; S.B. 1404 § 3. Under Riley, such a

6

disclosure is mandated speech that must satisfy strict scrutiny. See United States v. Fox,

7

286 F. Supp. 3d 1219, 1223 (D. Kan. 2018). To satisfy strict scrutiny, a law must be

8

narrowly tailored to serve a compelling state interest. Reed v. Town of Gilbert, Ariz., 576

9

U.S. 155, 163 (2015).

10

The government has a compelling interest in public safety and crime prevention.

11

See United State v. Salerno, 481 U.S. 739, 749-50 (1987) (citing De Veau v. Braisted, 363

12

U.S. 144, 155 (1960)). Senate Bills 1236 and 1404 advance those interests by giving law

13

enforcement another “valuable tool” to locate sex offenders and allowing parents to

14

regulate their children’s interaction and exposure with a sex offender. Supra Section

15

III(A)(1)(ii)(e). Thus, the first step of strict scrutiny is satisfied.

16

Narrow tailoring requires the information mandated by Senate Bills 1236 and 1404

17

be sufficiently calibrated toward the government’s interest in public safety. See Twitter,

18

Inc. v. Garland, 61 F.4th 686, 699 (9th Cir. 2023). When analyzing the fundraising law in

19

Riley, the Court suggested “as a general rule” a state could “itself publish the detailed

20

financial disclosure forms it requires professional fundraisers to file.” 487 U.S. at 800. The

21

Court explained such a “procedure would communicate the desired information to the

22

public without burdening a speaker with unwanted speech during the course of a

23

solicitation.” Id.

24

Arizona’s sex offender registration and notification scheme operates in a similar

25

way to the law suggested in Riley. See Fox, 286 F. Supp. 3d at 1224. Arizona collects

26

information from offenders during the registration process, and it then disseminates the

27

information through various governmental entities. S.B. 1236 § 1; S.B. 1404 § 3. Riley

28

indicates such a system is narrowly tailored. 487 U.S. at 800. Therefore, the requirements

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1

in Senate Bills 1236 and 1404 for certain level one offenders to disclose facts that are later

2

disseminated to the community does not violate the First Amendment. See Riley, 487 U.S.

3

at 800; see also Volokh, supra at 379 (suggesting “[t]here may be an exception for pure

4

compulsions to state facts to the government”).

5

Senate Bill 1404 also requires sex offenders to turn over information about their

6

children. Reporting the information is mandated, but it is not publicly disclosed. See A.R.S.

7

§ 13-3823 (“Except for use by law enforcement officers and for dissemination as provided

8

in [A.R.S.] § 41-1750, a statement . . . required by this article shall not be made available

9

to any person.”); see also A.R.S. § 41-1750 (listing instances where information can be

10

disclosed). The lack of public disclosure means Plaintiffs’ First Amendment challenge to

11

Senate Bill 1404’s reporting requirements similarly fail under the governing law.

12

In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the

13

United State Supreme Court considered the constitutionality of a mandatory flag salute and

14

pledge. Id. at 626-27. In its analysis, the Court classified the mandate as solely a conflict

15

between the authority of the state and rights of the individual. Id. at 630. One where the

16

state required students to publicly communicate by word and sign their adherence to the

17

government as presently organized or else face punishment. See id. at 631, 633. The

18

Barnette court found the mandate unconstitutional. Id. at 642.

19

Later, in Wooley, the United States Supreme Court explained the interests

20

underlying a compelled speech claim are invasions of “the sphere of intellect and spirit,”

21

which the First Amendment reserves from official control. 430 U.S. at 715. There, the

22

Court decided the constitutionality of a state law requiring license plates to bear the motto

23

“Live Free or Die.” Id. at 707. It noted “the passive act of carrying the state motto on a

24

license plate” involved a less serious infringement upon personal liberties than

25

“[c]ompelling the affirmative act of a flag salute,” but the Court emphasized the difference

26

was one of degree and still implicated Barnette. See id. at 715. The Court explained the

27

state law required individuals act “as a ‘mobile billboard’ for the State’s ideological

28

message” even if they found the message morally objectionable. See id.

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1

Barnette and Wooley indicate the compelled speech doctrine requires the necessary

2

predicate of a publicized message. See United States v. Arnold, 740 F.3d 1032, 1034 (5th

3

Cir. 2014). Without such a publication, the content of an individual’s speech is not altered

4

and there is no display of a message that an individual may find objectionable. See Volokh,

5

supra at 358-59. When the government does not disclose the information to the public, an

6

individual’s autonomy interests do not warrant First Amendment protection. See id.at 368.

7

Here, the information collected about a sex offender’s child is not publicly

8

disseminated. A.R.S. § 13-3823. Thus, the necessary predicate of the compelled speech

9

doctrine is not implicated, and the First Amendment does not protect the disclosure of such

10

information.

11
12

Plaintiffs’ First Amendment claim is not likely to succeed on the merits.
7.

Right to Privacy

13

The United States Constitution does not expressly guarantee a right to privacy.

14

Grummett v. Rushen, 779 F.2d 491, 493 (9th Cir. 1985). But governmental power may be

15

limited in instances where a zone of privacy is fundamental to the concept of ordered liberty

16

or implicit in its design. See id.

17

Plaintiffs argue Senate Bills 1236 and 1404 violate the privacy of children whose

18

parents must disclose their name and enrollment status. (See Doc. 14 at 20.) They

19

acknowledge information like someone’s name is normally not sensitive enough to receive

20

constitutional protection. (Id. (citing Doe v. Bonta, 101 F.4th 633, 637 (9th Cir. 2024).)

21

Yet Plaintiffs try to distinguish Senate Bills 1236 and 1404 from this general principle

22

because the contested laws involve the information of minor children. (Doc. 95 at 8-9.)

23

There is no right to privacy for information collected in a government database. See

24

Russell v. Gregoire, 124 F.3d 1079, 1093 (9th Cir. 1997). This is especially true when the

25

information is never publicly disseminated or disclosed. See Endy v. County of Los

26

Angeles, 975 F.3d 757, 769 (9th Cir. 2020). Senate Bill 1404 requires sex offenders to

27

disclose information on their children, but that information is never publicly disclosed

28

during the community notification process. S.B. 1404 § 3. Accordingly, the right to privacy

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1

is not implicated.

2

Even if the right to privacy extended to non-disclosed information, a child’s name

3

and enrollment information is not highly sensitive. See Bonta, 101 F.4th at 637. In Russell,

4

the Ninth Circuit Court of Appeals concluded a sex offender’s general vicinity of residence

5

and employer was not “private” enough for constitutional protection. Russell, 124 F.3d at

6

1094. Enrollment information is less sensitive than one’s residence, and a person’s name

7

similarly does not receive constitutional protection. See Bonta, 101 F.4th at 637. Plaintiffs,

8

therefore, are not likely to succeed on the merits of their right to privacy claim under the

9

federal constitution.

10

In addition, Plaintiffs argue the challenged legislation violates the Private Affairs

11

Clause in the Arizona Constitution. Ariz. Const. art. 2, § 8. The Arizona Supreme Court

12

outlined the contours of its Private Affairs Clause in State v. Mixton, 250 Ariz. 282 (2021).

13

The court held the clause is understood as giving “the same general effect and purpose as

14

the Fourth Amendment,” and it declined to “expand the Private Affairs Clause’s

15

protections beyond the Fourth Amendment’s reach, except in cases involving warrantless

16

home entries.” Id. at 290 (quoting Malmin v. State, 30 Ariz. 258, 261 (1926)). From this,

17

the Court finds Arizona’s Private Affairs Clause is inapplicable to Plaintiffs’ privacy claim.

18

Plaintiffs are not likely to succeed on the merits of their right to privacy claim under

19

the Arizona Constitution.

20

8.

False Light Invasion of Privacy

21

Plaintiffs assert a claim for False Light Invasion of Privacy in their Amended

22

Complaint. (Doc. 82 at 52.) Plaintiffs did not address this new claim in their Motion for a

23

Preliminary injunction or in their reply brief. Thus, Plaintiffs fail to satisfy their burden for

24

a preliminary injunction. See Winter, 555 U.S. at 20 (stating the burden rests with the

25

moving party).

26

B.

27

Likelihood of success on the merits, the first Winter factor, “‘is a threshold inquiry

28

and is the most important factor’ in any motion for a preliminary injunction.” Baird, 81

Other Winter Factors

- 29 -

1

F.4th at 1042 (quoting Env’t Prot. Info. Ctr. v. Carlson, 968 F.3d 985, 989 (9th Cir. 2020)).

2

This is “especially true for cases where [a movant] seeks a preliminary injunction because

3

of an alleged constitutional violation.” Id. In those instances, a finding of likelihood of

4

success on the merits “will almost always demonstrate [a movant] is suffering irreparable

5

harm” and that the third and fourth Winter factors tip decisively in a movant’s favor. See

6

id. But the inverse is also true. When a movant is unable to show a likelihood of success

7

on the merits, or that there is at least a “serious question[] going to the merits,” the court

8

need not consider the remaining three factors. See id. at 1040; Shell Offshore, Inc., 709

9

F.3d at 1291.

10

Plaintiffs are unable to show a likelihood of success on the merits for any of their

11

claims. The Court further finds, for each of Plaintiffs’ claims, they have not met the lesser

12

showing of a “serious question[] going to the merits.” Shell Offshore, Inc., 709 F.3d at

13

1291. Therefore, the Court does not need to consider the remaining Winter factors. Baird,

14

81 F.4th at 1042. Plaintiffs are not entitled to a preliminary injunction.

15

C.

16

In her response to the motion for a preliminary injunction, Attorney General Mayes

17

argues she is not a proper defendant.7 Whether a state official, acting in their official

18

capacity, is a proper defendant to an action is “the common denominator of two separate

19

inquiries.” Planned Parenthood of Idaho, Inc. v. Wasdin, 376 F.3d 908, 919 (9th Cir. 2004).

20

The first inquiry asks “whether there is the requisite causal connection between [the

21

official’s] responsibilities and any injury that the plaintiffs might suffer.” Id. (citing Lujan

22

v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). The second asks whether “jurisdiction

23

over the defendant[] is proper under the doctrine of Ex parte Young.” Id.

Attorney General as a Defendant

24

The Eleventh Amendment generally prevents federal courts “from entertaining suits

25

brought by a private party against a state or its instrumentalit[ies] in the absence of state

26

consent.” L.A. Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992). The doctrine of

27
7

28

Defendants also argued that the requested injunctive relief was overbroad. (Doc. 86 at 7.)
The Court declines to address this argument because it is denying Plaintiffs’ requested
injunction.
- 30 -

1

Ex parte Young acts as an exception to the general rule. See 209 U.S. 123, 157 (1908). It

2

allows “actions for prospective, declaratory, or injunctive relief against state officers in

3

their official capacities for their alleged violations of federal law,” Coalition to Defend

4

Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir. 2012), provided the official

5

sued has “some connection with the enforcement of the act.” Ex parte Young, 209 U.S. at

6

157. That “connection must be fairly direct; a generalized duty to enforce state law or

7

general supervisory power over the persons responsible for enforcing the challenged

8

provision will not subject an official to suit.” Eu, 979 F.2d at 704.

9

The Attorney General argues she is not a proper party to this litigation because she

10

has no enforcement authority over the statutory changes enacted by Senate Bills 1236 and

11

1404.8 (Doc. 86 at 6.) In response, Plaintiffs argue the Attorney General has statutory

12

enforcement authority through A.R.S. § 13-3824(A) and A.R.S. § 41-193(A)(5). (Doc. 95

13

at 13.) Plaintiffs cite cases like Planned Parenthood Arizona, Inc. v. Brnovich, 172 F. Supp.

14

3d 1075 (D. Ariz. 2016), for support. (Id.)

15

Under the Arizona Constitution, “[t]he powers and duties of [the] . . . attorney

16

general . . . shall be as prescribed by law.” Ariz. Const. art. 5 § 9. This language is

17

understood as denying the Attorney General any kind of “inherent or common law

18

authority.” See State ex rel. Brnovich v. Ariz. Bd. of Regents, 250 Ariz. 127, 130 (2020).

19

Instead, a statute must “expressly empower[] the Attorney General to take specified legal

20

actions.” See id. at 132.

21

Section 41-193(A)(5) reads the Attorney General shall, “[a]t the direction of the

22

governor, or if deemed necessary, assist the county attorney of any county in the discharge

23

of the county attorney’s duties.” Such language is undoubtedly broad. But as the Arizona

24

Supreme Court held in State ex rel. Brnovich, A.R.S. § 41-193 “create[s] duties of legal

25

representation rather than broad grants of authority.” 250 Ariz. at 132. The court explained

26

that hundreds of statutes were enacted after A.R.S. § 41-193 to endow the Attorney General

27
8

28

Defendants also argued that the requested injunctive relief was overbroad. (Doc. 86 at 7.)
The Court declines to address this argument because it is denying Plaintiffs’ requested
injunction.
- 31 -

1

with specific legal authority. See id. at 132. If A.R.S. § 41-193 were interpreted as granting

2

open-ended discretion to initiate civil litigation or prosecute, those other statutes would

3

become superfluous. See id. at 132-33. Plaintiffs, therefore, are incorrect that

4

A.R.S. § 41-193(A)(5) grants enforcement authority over sex offender registration and

5

notification. (Doc. 95 at 13.) It only imposes a generalized duty on the Attorney General

6

to assist the county attorneys in certain circumstances. See id. at 132. Within the context

7

of Ex parte Young, a generalized duty is too attenuated from the enforcement of Arizona’s

8

sex offender scheme to find a waiver of Eleventh Amendment immunity. See Eu, 979 F.2d

9

at 704 (stating the connection must be fairly direct).

10

Section 13-3824(A) states a sex offender “who is subject to registration . . . and who

11

fails to comply with the requirements of this article is guilty of a class 4 felony.” This

12

language is not specific enough to endow the Attorney General with enforcement authority.

13

Compare A.R.S. § 13-3824(A), with A.R.S. § 37-908 (“The attorney general may initiate

14

or defend an action commenced in any court to carry out or enforce this chapter or seek

15

any appropriate judicial relief to protect the interests of this state.”). Felonies of this nature

16

are prosecuted by county attorneys. Thus, Plaintiffs are also incorrect that the Attorney

17

General has enforcement authority through A.R.S. § 13-3824(A).

18

Looking more broadly at Arizona’s entire sex offender registration and notification

19

scheme, the only specific mention of the Attorney General is in A.R.S. § 13-3828(F).

20

Subsection (F) requires the Attorney General to give “assistance and information as is

21

reasonably necessary to effectuate the purposes of” Arizona’s Sex Offender Management

22

Board. See id. That duty does not implicate Senate Bills 1236 and 1404, nor does it have

23

any connection with their enforcement. More importantly, it means there are no statutes

24

“expressly empowering the Attorney General to take specified legal actions” within

25

Arizona’s scheme. State ex rel. Brnovich, 250 Ariz. at 132. As such, the Court finds the

26

Attorney General lacks enforcement authority over the statutes implicated by Senate Bills

27

1236 and 1404. State ex rel. Brnovich, 250 Ariz. at 132.

28

- 32 -

1

A similar conclusion was reached by this Court in Planned Parenthood Arizona,

2

Inc. v. Brnovich. There, the Court considered Ex parte Young when finding that the director

3

of the Arizona Department of Health Services was an improper party. See Planned

4

Parenthood Arizona, Inc., 172 F. Supp. 3d at 1096. The Court explained that even though

5

the director had “the power and duty to administer and enforce licensure requirements,”

6

such power had no connection to the challenged legislation. See id. at 1097-98. Here, the

7

Attorney General serves a general law enforcement function within the State of Arizona,

8

but that authority does not intertwine with Senate Bills 1236 and 1404 to create a

9

sufficiently direct connection to their enforcement. See Eu, 979 F.2d at 704.

10

At oral argument, the Attorney General stated A.R.S. § 41-193 grants her

11

supervisory authority over the county attorneys. The Court takes no position on whether

12

this argument is correct. State ex rel. Brnovich, 250 Ariz. at 132 (noting A.R.S.

13

§ 41-193(A)(5) imposes a duty to “assist[] county attorneys in certain circumstances”). But

14

assuming that it is, there is no evidence indicating the Attorney General has exercised her

15

authority over sex offender registration laws of this nature. Thus, to accept Plaintiffs’

16

position, the Court would effectively transform Plaintiffs’ requested prohibitory injunction

17

into a mandatory injunction if it granted the requested relief against the Attorney General.

18

See Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (explaining mandatory

19

injunctions “order a responsible party to ‘take action’”) (quoting Marlyn Nutraceuticals,

20

Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009)). Plaintiffs have

21

not argued for this. (Doc. 14 at 6.)

22

For the abovementioned reasons, it appears the Attorney General has a compelling

23

argument she should be dismissed from this lawsuit due to Eleventh Amendment

24

immunity. But the Attorney General has not asked the Court to dismiss her from this

25

lawsuit. (Doc. 86 at 29.) Instead, she asks the Court to “deny Plaintiffs request for a

26

preliminary injunction. (Id.) Or, at the very least, craft injunctive relief in a way that avoids

27

restraining the Attorney General in her official capacity. (See id. at 7.) As such, dismissing

28

the Attorney General from this lawsuit would require the Court to exercise its discretion

- 33 -

1

sua sponte. The better course is a motion brought by the Attorney General.

2

IV.

CONCLUSION

3

For the reasons stated herein,

4

IT IS ORDERED denying Plaintiffs’ Motion (Doc. 14).

5

IT IS FURTHER ORDERED lifting the September 13, 2024, Temporary

6

Restraining Order (Doc. 42).

7

IT IS FINALLY ORDERED affirming the schedule for Defendants to answer or

8

otherwise respond to Plaintiffs’ First Amended Complaint (Doc. 82) as December 13,

9

2024, as stated in the Court’s October 30, 2024, Minute Entry (Doc. 121).

10

Dated this 22nd day of November, 2024.

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