John and Jane Does 1-104 v. Wasden et al

Filing 90

MEMORANDUM DECISION AND ORDER - IT IS HEREBY ORDERED: Defendants' Motion to Dismiss (Dkt. 76 ) is DENIED. The previous Scheduling Order (Dkt. 75 ) is VACATED. The Court will send out a new Litigation Order and Notice of Telephonic Scheduling Conference following entry of this Order. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (hs)

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 1 of 45

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JANE DOE #35; JANE DOE #36; JOHN
DOE #64; JOHN DOE #115; JOHN
DOE #117; and JOHN DOE #123,

Case No. 1:16-cv-00429-DCN
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
RAÚL LABRADOR,1 Attorney General
of the State of Idaho; and COLONEL
KEDRICK WILLS, Director of the Idaho
State Police, in their official capacities,
Defendants.

I. INTRODUCTION
On April 5, 2019, the Court dismissed Plaintiffs’ Second Amended Complaint with
prejudice. Dkt. 47. Plaintiffs successfully appealed, and the case is now before the Court
on the Ninth Circuit’s remand of some of Plaintiffs’ claims. After the Ninth Circuit
remanded, Plaintiffs ultimately filed a Fourth Amended Complaint.2 Dkt. 73. Defendants
filed another Motion to Dismiss (Dkt. 76) and the Court heard oral argument and took the
matter under advisement (Dkt. 84).

1

Raúl Labrador is substituted for former Idaho Attorney General Lawrence Wasden pursuant to Federal
Rule of Civil Procedure 25(d).
2

Plaintiffs filed a Third Amended Complaint on May 4, 2021, (Dkt. 67) but, before Defendants had
answered or otherwise responded, filed a Fourth Amended Complaint on May 26, 2021 (Dkt. 73).

MEMORANDUM DECISION AND ORDER - 1

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 2 of 45

For the reasons set forth below, Defendants’ Motion to Dismiss is DENIED.
II. BACKGROUND
Plaintiffs are six men and women3 who must register for life as sex offenders under
Idaho’s “Sexual Offender Registration Notification and Community Right-to-Know Act,”
Idaho Code section 18-8301 et seq. (“SORA”). Plaintiffs were each charged or convicted
before 2006, when the Idaho Legislature began amending SORA to impose increasingly
harsh restrictions.
Plaintiffs allege a series of amendments to SORA have heightened their registration
and notification obligations, and have also imposed direct restrictions on their movement,
housing, and employment. Because all amendments to SORA have been applied
retroactively to all Idaho sex offender registrants, Plaintiffs argue such provisions violate
the Constitution’s Ex Post Facto Clause, U.S. Constitution, Art. I, § 10, cl. 1, and its
prohibition against double jeopardy, U.S. Const., amend. 5. Plaintiffs also contend the
cumulative effect of the amendments to SORA violates Idaho’s Free Exercise of Religion
Protected Act, Idaho Code section 73-402 (“FERPA”).
A. SORA
Idaho’s original sex offender registration law came into effect on July 1, 1993. The
law imposed only a duty for persons convicted of certain felony sex crimes to register with
their local sheriff, and the registry was not available to the public. In 1998, the Idaho

3

The first two operative Complaints included 134-Doe plaintiffs. Dkt. 4; Dkt. 36. Plaintiffs now seek to
proceed with these six Plaintiffs as representatives of the universe of registrants—including the other 128Doe plaintiffs—who would benefit from success on Plaintiffs’ facial claims. Dkt. 73, at 2 n. 1.

MEMORANDUM DECISION AND ORDER - 2

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 3 of 45

Legislature repealed the 1993 law and passed SORA. I C § 18-8301 et seq. SORA created
a central registry of offender information and made the registry publicly available. It also
delineated seventeen registrable offenses and expanded the category of offenders required
to register. Id., § 18-8304.
The 1998 version of SORA applied retroactively to any person convicted of a newly
eligible offense after July 1, 1993. It also applied retroactively to any person who entered
the state of Idaho after July 1, 1993, who had been convicted of any crime that was
“substantially equivalent” to SORA’s registrable offenses. The 1998 version of SORA
required all registrants to undergo a “psychosexual evaluation” upon conviction. Id., § 188316. Registrants convicted of a subcategory of offenses, listed in Idaho Code § 18-8312,
and found to pose such a risk based on their evaluation, were deemed “violent sexual
predators.” Id., § 18-8303(10). All registrants, except for violent sexual predators, were
eligible to petition the district court for a show cause hearing to determine whether the
person could be exempted from the registration requirements after a ten-year period. Id., §
18-8310(1). Violations of registry requirements could result in felony offenses punishable
by up to five years of incarceration and a $5,000.00 fine. Id., § 18-8311(1). If a registrant
was on some form of supervised release at the time of a registry violation, punishment
could include revocation of release and reinstatement of the underlying prison sentence.
Id.
The Legislature amended SORA again in 2001, 2002, 2004, 2005, 2006, 2008,
2009, 2011, 2012, 2013, 2016, 2018, 2019, and 2020. Each set of amendments was applied
retroactively in the same manner as the 1998 version of SORA. The amendments expanded
MEMORANDUM DECISION AND ORDER - 3

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 4 of 45

SORA’s framework, adding to the list of eligible offenses and heightening the obligations
of registration. Plaintiffs identify certain amendments as particularly significant.
For instance, the 2001 amendments removed the right of registrants who had been
convicted of an “aggravated offense” to petition for release from registration requirements
after a ten-year period. By removing the right to petition for removal, the 2001 amendments
created a lifetime registration requirement for people convicted of five “aggravated
offenses.”4
The 2004 amendments created a new felony crime for any registrant to accept
employment “in any day care center, group day care facility or family day care home,” or
for any registrant to “be upon or to remain on the premises of a day care center, group day
care facility or family day care home while children are present, other than to drop off or
pick up the person’s child or children[.]” Id., § 18-8327(1). However, the 2004
amendments did add a provision allowing registrants to petition to be excluded from
SORA’s employment prohibitions. Id., § 18-8328.5
In addition to adding sexual contact with a prisoner (I.C. § 18-6110) as a registrable
offense, the 2005 amendments expanded out-of-state convictions which require
registration in Idaho. Specifically, the 2005 amendments mandated registration for any

4

In 2001, the crimes defined as “aggravated offenses” were: (1) lewd conduct, when the victim was less
than 12 years of age (I.C. § 18-1508); (2) murder committed in the perpetration of rape (I.C. § 18-4003(d));
(3) rape (I.C. § 18-6101), but excluding statutory rape where the victim was at least 12 years of age or the
defendant was 18 years of age or younger (§ 18-3101(1)); (4) male rape (I.C. § 18-6108); and (5) forcible
penetration by use of a foreign object (I.C. § 18-6608).

5

Idaho Code § 18-8328 provides a registrant may petition to be excluded from the prohibition against
working in a school or day care if the registrant can show, with clear and convincing evidence, that he or
she does not pose a threat and that at least ten years have passed since the registrant’s last conviction.

MEMORANDUM DECISION AND ORDER - 4

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 5 of 45

person convicted of a crime, attempt, solicitation, or conspiracy to commit a crime in
another state, territory, commonwealth, or other jurisdiction of the United States
substantially equivalent to an enumerated registrable offense, as well as for any person
required to register as a sex offender in another state or jurisdiction when s/he established
residency in Idaho, regardless of whether the offense was substantially equivalent to an
offense enumerated in SORA. Id., § 18-8304(1)(a)–(b).
The 2006 amendments added a provision that made it a misdemeanor offense for
any registrant to be upon or remain on or within five hundred feet of school buildings and
school grounds when children under the age of 18 are present. Id., § 18-8329(1)(a). This
rule also applies to where registrants may reside, unless the registrant’s residence was
established prior to July 1, 2006. Id., § 18-8329(1)(d). Although the prohibition includes
some exceptions, such as for when registrants are students at the school or transporting
their own children to and from the school, id., § 18-8329(2)–(3), Plaintiffs contend the rule
severely restricts their choice of employment and access to housing.
The 2009 amendments expanded the list of aggravated offenses and made several
additional crimes registrable. Id., §§ 18-1506A, 18-1508, 18-4502, 18-4503, 18-8602(1),
18-8304.
SORA was again amended in 2011. As in 2009, new offenses were added to the list
of crimes requiring registration. Id., §§ 18-5605, 18-5611, 18-6609, 18-7804. The 2011
amendments also expanded the amount of information required at registration, while
decreasing the amount of time registrants had to comply. Id., § 18-8307. In addition, the
2011 amendments required registrants to provide advance notice of any travel lasting
MEMORANDUM DECISION AND ORDER - 5

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 6 of 45

longer than a week, and to provide in-person notice of their presence to law enforcement
in the jurisdictions to which they travel. Id., § 18-8309. The 2011 amendments also altered
the role of individualized review within SORA’s framework. The Sex Offender
Classification Board—the entity previously responsible for evaluating the risk of offenders
and classifying “violent sexual offenders”—was renamed as the “Sex Offender
Management Board.” I.C. § 18-8312. The provisions charging the Board with evaluating
the risk posed by offenders were struck, and the Board’s authority was instead defined as
the development, advancement, and oversight of sexual offender management policies and
practices statewide. Id., § 18-8314(1). The provision requiring a psychosexual evaluation
was made discretionary, and the term “violent sexual predator” was redefined to mean only
those previously designated as such by the former Classification Board. Id., §§ 188303(17), 18-8316.
The 2011 amendments also restated SORA’s registration period, making the default
term for all registrants “for life.” Id., § 18-8307(7). Eligibility to petition for removal after
ten years was previously the default, with lifetime registration listed as the exception. After
the 2011 amendments, the petition right is listed as the exception from the default of
lifetime registration, id., and is available only for those registrants who are not recidivists,
were not convicted of an aggravated offense, and were not previously deemed violent
sexual predators. Id., § 18-8310(1) amended by 2023 Idaho Laws Ch. 183 (H.B. 117).
While the 2016, 2018, and 2019 amendments primarily tracked changes the
Legislature made to underlying offenses, the 2020 Amendments added day cares to the
exclusion zone previously only measured around schools and school zones. I.C. § 18-8329.
MEMORANDUM DECISION AND ORDER - 6

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 7 of 45

To summarize, when SORA was enacted in 1998, it required individualized risk
evaluation of each registrant, with only those classified as violent sexual predators
ineligible to petition for removal. SORA now characterizes registrants based on the offense
of conviction—either aggravated or non-aggravated—without any individualized
assessment.6 The default registration term is for life, but with those who were not convicted
of an aggravated offense, are not recidivist, and are not violent sexual predators eligible to
petition for removal after ten years. While seventeen crimes were registrable under the
1998 version of the statute, twenty-six crimes are registrable today. Plaintiffs contend the
modern version of SORA banishes them from large parts of the populated areas of Idaho.
They highlight that SORA’s scope has grown to encompass more crimes and more people
for the default of a lifetime term, while also “ratcheting up the restrictions on registrants’
lives and liberty through near-annual amendments.” Dkt. 73, ¶ 146.
B. Plaintiffs
Plaintiffs are a group of four men and two women required to register as sex
offenders in Idaho. Each of the six representative Plaintiffs were charged or convicted
before 2005, and none have ever been convicted of another registrable offense. At the time
of their crimes, each of the six representative Plaintiffs would have been eligible to petition
for removal from the registration requirement after ten years. The 2009 amendments
foreclosed Plaintiffs’ ability to petition for removal, instead retroactively subjecting them
to lifetime registration. As a result, Plaintiffs must comply with SORA’s heightened

6

In 1998, five crimes were considered aggravated. Today nine crimes fall in the aggravated category. Id.,
§ 18-8303(1).

MEMORANDUM DECISION AND ORDER - 7

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 8 of 45

reporting obligations and its restrictions on housing, travel, and employment.
Plaintiffs allege the current version of SORA strictly limits their ability to direct the
upbringing of their children, find housing and employment, travel, be free from harassment
and stigma, and attend religious services on the grounds of any faith-based institution that
is also operated as a school or daycare. Plaintiffs contend SORA subjects them to a lifetime
of reporting, surveillance, supervision, and exclusion. Further, Plaintiffs maintain total
compliance with the current version of SORA is impossible because: (1) some of SORA’s
restrictions and obligations are vague and confusing; (2) SORA imposes penalties for
violating the law even if illness, injury, or practical differences make compliance
impossible; and (3) Plaintiffs often cannot know if they are within five hundred feet of a
school or daycare.
Because Plaintiffs’ convictions occurred before many of the amendments to SORA,
and in some cases even before SORA became law, the Court must consider whether the
statute constitutes retroactive punishment forbidden by the Constitution. United States v.
Smith, 538 U.S. 84, 92 (2003).
C. Procedural History
This case has a lengthy procedural history, at times complicated by Plaintiffs’
original counsel. For instance, on September 22, 2016, 104-Doe Plaintiffs filed their initial
Complaint against approximately forty Idaho state defendants. Dkt. 1. Seven months
passed without service of the Complaint. On April 26, 2017, 134-Doe Plaintiffs filed a 145page Amended Complaint against more than thirty Defendants. Dkt.4. Another four

MEMORANDUM DECISION AND ORDER - 8

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 9 of 45

months passed without service of the Amended Complaint on all but one Defendant.7
Finally, on September 25, 2017, the remaining Defendants filed waivers of service. Dkt.
10.
On November 17, 2017, the original Defendants filed a Motion to Dismiss (“first
Motion to Dismiss”). Dkt. 15. After obtaining two extensions, Plaintiffs’ counsel
responded to the first Motion to Dismiss on February 2, 2018. Dkt. 24. Following a hearing,
the Court granted the first Motion to Dismiss on May 17, 2018. Dkt. 32. While the Court
gave Plaintiffs leave to amend some of their as-applied challenges to SORA, it dismissed
all facial challenges without leave to amend. Id. at 38. The Court also held Plaintiffs could
not amend certain causes of action because even as-applied challenges to such claims
would fail. Id. at 40. The Court allowed Plaintiffs to amend the rest of their constitutional
claims to state appropriate as-applied challenges. Id. at 39.
After receiving an extension of time to comply, Plaintiffs filed a Second Amended
Complaint on August 30, 2018. Dkt. 36. In their Second Amended Complaint, Plaintiffs
provided allegations in support of as-applied claims on behalf of twelve of the 134-Doe
Plaintiffs. See generally id. Defendants filed a second Motion to Dismiss on October 18,
2018. Dkt. 40. The Court ultimately found that the Second Amended Complaint failed to
state a claim and dismissed the case with prejudice.8 Dkt. 47. Plaintiffs appealed and, on

7

Specifically, while former Idaho State Attorney General Lawrence Wasden was served on July 7, 2017,
it appears none of the other Defendants were served with the Amended Complaint on that date. Dkt. 9.

8

The Court spent considerable time and effort parsing through Plaintiffs’ First and Second Amended
Complaints. For instance, the First Amended Complaint did “not list particular causes of action as to
specific individuals, but merely stat[ed] that all plaintiffs suffer from a wide variety of constitutional
depravations SORA has created[.]” Dkt. 32, at 2. Although the Court asked Plaintiffs to provide more

MEMORANDUM DECISION AND ORDER - 9

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 10 of 45

December 9, 2020, the Ninth Circuit reversed in part, affirmed in part, and remanded the
case to this Court. Dkt. 55.9
The Ninth Circuit found no error in the Court’s analysis of Plaintiffs’ vagueness,
Free Association, Equal Protection, Contracts Clause, Takings, Separation of Powers, and
state Police Power challenges, and affirmed dismissal of those claims. Does v. Wasden,
982 F.3d 784, 795 (9th Cir. 2020) (“Wasden”). The Ninth Circuit found the Court only
erred in dismissing Plaintiffs’ ex post facto and free exercise claims and, accordingly, in
dismissing Plaintiffs’ Eighth Amendment and double jeopardy claims on the same basis.
Id. Plaintiffs bring ex post facto, double jeopardy, and free exercise claims in their Fourth
Amended Complaint, and conceded during oral argument that they have abandoned their
Eighth Amendment claim.
Following the remand order, the Court held an informal status conference with
counsel for the parties on February 4, 2021. Dkt. 59. Pursuant to discussions during the
conference, the Court ordered Plaintiffs to file their third amended complaint by March 5,
2021. Plaintiffs again obtained extensions to the deadline, and ultimately filed a Third
Amended Complaint on May 4, 2021. Dkt. 67.10

details so the Court could discern whether their claims were viable, in their Second Amended Complaint,
Plaintiffs merely “add[ed] facts with respect to [only] twelve . . . defendants,” “fail[ed] to tie such facts to
specific constitutional violations,” and “fail[ed] to allege essential details which would allow the Court to
evaluate whether any of the as-applied challenges [were] plausible.” Dkt. 47, at 1. Prior to filing their Fourth
Amended Complaint, Plaintiffs deployed “their own version of the spaghetti approach” by heaving “the
entire contents of a pot against the wall in the hopes that something would stick.” Does v. Wasden, 982
F.3d 784, 796 (9th Cir. 2020) (VanDyke, J., concurring in part and dissenting in part) (citation omitted).
9

The Ninth Circuit issued its formal mandate on December 31, 2020. Dkt. 56.
The Court does not typically “call out” an attorney’s performance. However, the Court has provided an
unusual number of extensions and courtesies in this case. It gave Counsel every opportunity to put forth the
best case possible by painstakingly analyzing each argument and pointing out deficiencies. It also

10

MEMORANDUM DECISION AND ORDER - 10

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 11 of 45

Attorney Matthew Strugar subsequently appeared on behalf of Plaintiffs. The Court
held a second status conference on May 21, 2021, during which the parties agreed to an
extended briefing schedule for Defendants’ intended motion to dismiss. Dkt. 72. On May
26, 2020, Mr. Strugar filed the instant Fourth Amended Complaint. Dkt. 73. As noted, the
Fourth Amended Complaint identifies six Doe-plaintiffs as representatives of the universe
of SORA registrants, including the other 128-Doe Plaintiffs identified in the previous
complaints. The Fourth Amended Complaint names two defendants, Idaho’s Attorney
General and the Director of the Idaho State Police (hereinafter “Defendants”). As planned,
Defendants filed a third Motion to Dismiss, Dkt. 76, and, after oral argument, the Court
took the matter under advisement. Dkt. 84.
III. LEGAL STANDARD
A motion to dismiss for failure to state a claim under Rule 12(b)(6) challenges the
legal sufficiency of the claims stated in the complaint. Conservation Force v. Salazar, 646
F.3d 1240, 1242 (9th Cir. 2011). “A Rule 12(b)(6) dismissal may be based on either a ‘lack
of a cognizable legal theory’ or ‘the absence of sufficient facts alleged under a cognizable
legal theory.’” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir.
2008) (citation omitted).
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain “a short and

admonished counsel to ensure briefing and arguments were accurate. See Dkt. 32, at 10 n.7. Even after such
efforts, Counsel’s briefing before the Ninth Circuit was noted as being “particularly inartful” by the
majority, and “woefully inadequate” by the concurrence/dissent. Wasden, 982 F. 3d at 792, 796. If an
attorney is not well-versed in a particular subject area or has other obligations calling upon his or her time,
he or she should make other arrangements for the client so that it does not take seven years to begin
discovery or require the Court (in this case District and Appellate) to parse through pages of text to cobble
together cognizant arguments for the party.

MEMORANDUM DECISION AND ORDER - 11

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 12 of 45

plain statement of the claim showing that the pleader is entitled to relief,” in order to “give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “This is not an onerous burden.”
Johnson, 534 F.3d at 1122. In considering a Rule 12(b)(6) motion, the Court must view the
complaint in the light most favorable to the claimant and “accept[] all well-pleaded factual
allegations as true, as well as any reasonable inference drawn from them.” Id.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (“Iqbal”) (cleaned up). A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged. Twombly, 550 U.S. at 556. The
plausibility standard is not akin to a “probability requirement,” but does require more than
a sheer possibility that a defendant acted unlawfully. Id. A complaint “does not need
detailed factual allegations,” but it must set forth “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (citations
omitted).
IV. ANALYSIS
A. Application of the Ninth Circuit’s Decision to the Motion to Dismiss
Before turning to the parties’ arguments, the Court first addresses how it will
evaluate the instant Motion to Dismiss given the Ninth Circuit’s guidance with respect to
the errors the Court made when dismissing Plaintiffs’ facial and as-applied challenges in
its prior decisions.
MEMORANDUM DECISION AND ORDER - 12

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 13 of 45

1. Facial versus as-applied challenges
First, the Ninth Circuit found the Court erred in construing Plaintiffs’ ex post facto
claim as an “as-applied” challenge. Wasden, 982 F.3d at 791. Where, as here, a plaintiff
contends a statute is unconstitutional, there are two types of challenges: “facial” or “asapplied.” “A facial challenge is a challenge to an entire legislative enactment or provision.”
Hoye v. City of Oakland, 653 F.3d 835, 857 (9th Cir. 2011) (citing Foti v. City of Menlo
Park, 146 F.3d 629, 635 (9th Cir. 1998)). As-applied challenges, on the other hand, do not
look at the text, or face, of the statute, but rather argue that even if a law is valid on its face,
it may nonetheless—as the name suggests—be unconstitutionally applied in a particular
case.11
A facial challenge presents an extremely high bar because a plaintiff must show that
the statute is unconstitutional in all possible applications. Diaz v. Paterson, 547 F.3d 88,
101 (2d Cir. 2008). Facial challenges are “disfavored” because they: (1) “raise the risk of
premature interpretation of statutes on factually barebones records”; (2) run contrary “to
the fundamental principle of judicial restraint”; and (3) “threaten to short circuit the
democratic process by preventing laws embodying the will of the people from being
implemented in a manner consistent with the Constitution.” Wash. State Grange v. Wash.
State Republican Party, 552 U.S. 442, 450–51 (2008). As such, a “facial challenge must

11

“Facial and as-applied challenges do not enjoy a neat demarcation, but conventional wisdom defines
facial challenges as ‘ones seeking to have a statute declared unconstitutional in all possible applications,’
while as-applied challenges are ‘treated as the residual, although ostensibly preferred and larger, category.’”
Standing--Facial Versus As Applied Challenges--City of Los Angeles v. Patel, 129 HARV. L. REV. 241,
246 (2015) (quoting Richard H. Fallon, Jr., Fact and Fiction About Facial Challenges, 99 CAL. L. REV.
915, 923 (2011)).

MEMORANDUM DECISION AND ORDER - 13

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 14 of 45

fail where the statute has a plainly legitimate sweep.” Id. at 449. In United States v. Salerno,
the Supreme Court explained a “facial challenge to a legislative Act is, of course, the most
difficult challenge to mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid.” 481 U.S. 739, 745 (1987)
(“Salerno”) (emphasis added).
In their First Amended Complaint, Plaintiffs appeared to initially raise a facial
challenge to SORA12 under the Ex Post Facto Clause.13 Pursuant to Salerno, the Court
dismissed all of Plaintiffs’ facial challenges to SORA with prejudice because SORA has a
“plainly legitimate sweep” in that it is applicable to thousands of Idahoans who are required
to register for a time, but then in due course are no longer required to register. Dkt. 32, at
9. The Court determined Plaintiffs instead made up the limited group of offenders who
were convicted of “aggravated offenses,” or who have been designated recidivists, and thus
must register for life. The Court held it was only to the latter category of individuals to
whom Plaintiffs’ constitutional challenges could apply. Because Plaintiffs had not pleaded
any specific as-applied challenges, the Court initially determined amendment was
necessary for the Court to appropriately evaluate Plaintiffs’ claims.
In their Second Amended Complaint, Plaintiffs brought as-applied challenges to
SORA. Dkt. 36. Following Defendants’ second Motion to Dismiss, the Court ultimately

12

Plaintiffs did not specify whether they raised facial or as-applied challenges in either their First Amended
Complaint, or in their response to the first Motion to Dismiss. Dkt. 32, at 9 n. 5.

13

The Ex Post Facto Clause, Article I, Section 10 of the Constitution, bars the enactment of any law that
“imposes a punishment for an act which was not punishable at the time it was committed, or imposes
additional punishment to that then prescribed.” Russell v. Gregoire, 124 F.3d 1079, 1083 (9th Cir. 1997)
(citations omitted).

MEMORANDUM DECISION AND ORDER - 14

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 15 of 45

dismissed the Second Amended Complaint with prejudice, finding, under the “intenteffects”14 test of Smith v. Doe, 538 U.S. 84, 92 (2003), SORA is civil in intent and not
punitive in effect. See generally Dkt. 47.
The Ninth Circuit held the Court erred in construing Plaintiffs’ ex post facto claim
as an as-applied challenge because, in Seling v. Young, 531 U.S. 250, 262 (2001), the
Supreme Court held that ex post facto claims based on the punitive effects of purportedly
civil statutes cannot be construed as “as-applied” challenges. Wasden, 982 F.3d at 791. In
so holding, the Seling Court reasoned that evaluating the “civil nature of an Act by
reference to the effect that the Act has on a single individual” would be unworkable because
such an analysis would “never conclusively resolve whether a particular scheme is punitive
and would thereby prevent a final determination of the scheme’s validity” under the Ex
Post Facto Clause. 531 U.S. at 263.
Given the holding in Seling, the Ninth Circuit instructed this Court to evaluate
SORA’s punitive effect based on a variety of factors—such as the terms of the statute, the
obligations it imposes, and the practical and foreseeable consequences of those
obligations—in relation to the statute on its face. Wasden, 982 F.3d at 791. The Ninth
Circuit did not acknowledge the Supreme Court’s seemingly contrary holding in Salerno

14

The “intent-effects” test requires a two-part inquiry. Smith, 538 U.S. at 92. In the first step, a court
considers whether the legislature intended to “establish civil proceedings” or to impose punishment. Id.
(citing Kansas v. Hendricks, 521 U.S. 346, 361 (1997)). If the legislature intended to impose punishment,
the inquiry ends, and the statutory scheme is deemed punitive. Id. “If, however, the intention was to enact
a regulatory scheme that is civil and nonpunitive, [the Court] must further examine whether the statutory
scheme is so punitive either in purpose or effect as to negate the State’s intention to deem it civil.” Id.
(cleaned up). As further addressed below, Smith outlined five factors for courts to consider when
determining whether a statute violates the Ex Post Facto Clause because its effects are punitive.

MEMORANDUM DECISION AND ORDER - 15

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 16 of 45

and did not address how a court can follow both Salerno and Seling when considering the
constitutionality of SORA.15
The Ninth Circuit’s holding appeared to leave this Court in somewhat of a Catch22, where Plaintiffs cannot bring as-applied challenge under Seling, but also cannot
succeed with a facial challenge under Salerno. Neither side addressed this issue in either
their briefing on the instant motion, or in their briefing on Defendants’ first two motions to
dismiss.16 However, in McGuire v. Marshall, 50 F.4th 986, 1004 (2022) (11th Cir. 2022),
the Eleventh Circuit recently explained that, under Seling, ex post facto claims do not fit
into the frameworks typically used to review either facial, or as-applied, challenges.
Instead, if a court determines the legislature intended to create a civil scheme, the court
must then evaluate the factors outlined in Smith to determine whether the effects of SORA
are punitive as they are “generally felt by those who [are] subject to them.” McGuire, 50
F.4th at 1004; see also Smith, 538 U.S. at 100 (evaluating whether the challenged law
imposed an affirmative disability or restraint by looking for evidence that the statutory
provisions “led to substantial. . . disadvantages for former sex offenders that would not
have otherwise occurred”) (emphasis added).
In short, under Seling, a plaintiff cannot allege an ex post facto claim by
demonstrating the law’s purportedly punitive effects only as to him. McGuire, 50 F.4th at

15

The Ninth Circuit raised Seling sua sponte, as the parties did not suggest that ex post facto claims based
on the purportedly punitive effect of civil statutes cannot be construed as “as-applied challenges” either
before this Court, or on appeal. Wasden, 982 F.3d at 796 (VanDyke, J. concurring in part and dissenting in
part).
16

Upon the Court’s questioning, the parties did address the apparent conflict between Salerno and Seling
during oral argument on the instant Motion to Dismiss.

MEMORANDUM DECISION AND ORDER - 16

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 17 of 45

1005. “At the same time, a plaintiff need not satisfy the standard for a facial . . . challenge,
which would require a showing that the law could never be applied retroactively in a
constitutional manner.” Id. Thus, for purposes of Plaintiffs’ “facial” ex post facto claim,
the Court will consider whether the effects of SORA are punitive as they are generally felt
by SORA registrants. Id.
2. “Clearest Proof” Standard
Second, the Ninth Circuit held the Court erred in applying the “clearest proof”
standard at the motion to dismiss stage. Wasden, 982 F.3d at 791. When a statute is
expressly civil in intent, the Supreme Court has explained that only the “clearest proof” is
sufficient to override the legislature’s intent and render the putatively civil regulation a
criminal penalty. Smith, 538 U.S. at 92 (“Because we ordinarily defer to the legislature’s
stated intent, only the clearest proof will suffice to override legislative intent and transform
what has been denominated a civil remedy into a criminal penalty”) (cleaned up). The
Ninth Circuit held the Court erred in applying the “clearest proof” standard in granting
Defendants’ Motion to Dismiss, because at that stage of the proceedings, Plaintiffs only
had to plausibly allege that SORA, on its face, is punitive in effect.17 Wasden, 982 F.3d at
791.
As the dissent in Wasden highlighted, the “clearest proof” standard is “best
understood as referring to a presumption that makes it harder for plaintiffs to win their
17

While this Court referenced the “clearest proof” standard in passing when discussing Plaintiffs’ inability
to distinguish harms they have suffered from those considered in previous ex post facto challenges, it was
only this inability to raise new and distinguishable harms from previous ex post facto challenges already
considered and rejected by federal and state courts—and not the Does’ inability to provide the “clearest
proof” at the pleading stage—that this Court found was fatal to Plaintiffs’ claims. Dkt. 47, at 19–20.

MEMORANDUM DECISION AND ORDER - 17

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 18 of 45

challenge. As such, the ‘clearest proof’ standard is relevant at the motion to dismiss stage.”
Id. at 798 (emphasis in original). Many courts have so held. Waldman v. Conway, 871 F.3d
1283, 1294 (11th Cir. 2017) (per curiam) (“Here, taken as true, none of the allegations in
Waldman’s complaint would provide the ‘clearest proof’ necessary to override the
presumption that Alabama’s stated civil intent to protect children is actually punitive”);
Ctr. for Individual Freedom v. Madigan, 697 F.3d 464, 470–71 (7th Cir. 2012) (“To prevail
in such a facial challenge, a plaintiff must cross a high bar . . . . The district court granted
the state’s motion to dismiss, finding the Center could not meet these standards. We
affirm.”); Does #1–7 v. Abbott, 345 F. Supp. 3d 763, 777 (N.D. Tex. 2018) (dismissing ex
post facto and other constitutional claims given the Smith factors and “absent the ‘clearest
proof’” that the effects of Texas statute were punitive), aff’d, 945 F.3d 307, 311 (5th Cir.
2019) (per curiam) (holding constitutional claims did not “cross the minimum pleading
threshold because [the Texas statute] is nonpunitive”); Anderson v. Holder, 647 F.3d 1165,
1173 (D.C. Cir. 2011) (affirming district’s court’s grant of motion to dismiss, explaining
“Anderson and his amicus have failed to show by the clearest proof that the effects of the
law negate the Council’s intention to establish a civil regulatory scheme”) (cleaned up);
Windwalker v. Bentley, 925 F. Supp. 2d 1265, 1270 (N.D. Ala. 2013) (dismissing, for,
among other things, failing to satisfy the clearest proof standard), aff’d sub nom.,
Windwalker v. Governor of Ala., 579 Fed. App’x 769 (11th Cir. 2014).
Nevertheless, given the Ninth Circuit’s holding in Wasden, the Court must, in
evaluating the instant Motion to Dismiss, consider only whether Plaintiffs have plausibly
alleged that SORA, on its face, is punitive in effect. Wasden, 982 F.3d at 791. If Plaintiffs
MEMORANDUM DECISION AND ORDER - 18

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 19 of 45

have done so and survive Defendants’ Motion to Dismiss, they will nonetheless face a
“heavy burden when seeking to override a legislative expression of intent that a challenged
provision is civil,” and “only the clearest proof will suffice” to meet that burden on
summary judgment or at trial. McGuire, 50 F.4th at 1005 (quoting Kansas v. Hendricks,
521 U.S. 346, 361 (1997)).
3. Supreme Court and Ninth Circuit Precedent
Third, the Ninth Circuit held the Court erred in finding Plaintiffs’ claims were
precluded because the Court was not bound by precedent to find SORA is non-punitive in
effect. Wasden, 982 F.2d at 792. Specifically, the Ninth Circuit noted the cases this Court
relied upon in finding Plaintiffs’ claims to be foreclosed by precedent, including Smith,
538 U.S. at 92; Litmon v. Harris, 768 F.3d 1237 (9th Cir. 2014); United States v. Elk
Shoulder, 738 F.3d 948 (9th Cir. 2013); United States v. Elkins, 683 F.3d 1039 (9th Cir.
2012); and ACLU v. Cortez Masto, 670 F.3d 1046 (9th Cir. 2012) (“Masto”), considered
retroactively applied registration and notification provisions, but did not address
retroactively applied residency, travel, or employment restrictions—each of which are now
imposed by SORA.
Precedent illustrates the registration and notification provisions of SORA are
constitutional. Litmon, 768 F.3d at 1243 (finding lifetime requirement for sexual offenders
to register in person every 90 days did not violate the Ex Post Facto Clause); Elk Shoulder,
738 F.3d at 954 (rejecting claim that federal sex offender registration requirements violate
the Ex Post Facto Clause); Elkins, 683 F.3d at 1045 (“We join our sister circuits in holding
that requiring a person to register under [the federal sexual offender registration act] based
MEMORANDUM DECISION AND ORDER - 19

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 20 of 45

on a conviction entered prior to [the act’s] enactment does not violate the Ex Post Facto
Clause”); Masto, 670 F.3d at 1056–57 (upholding law requiring registrants to appear in
person to update registration information “not less frequently than every 90 days” and
requiring law enforcement to actively disseminate notice of registration status). However,
on remand, the Court must consider SORA’s registration and notification provisions in
conjunction with the residency, travel, and employment restrictions it also imposes. While
the aforementioned cases may provide guidance, such cases do not necessarily foreclose
Plaintiffs’ constitutional claims. Wasden, 982 F.3d at 792.
Fourth, because the ex post facto analysis that the Ninth Circuit found to be in error
was incorporated as the sole basis for dismissing Plaintiffs’ double jeopardy claim, the
Ninth Circuit also remanded Plaintiffs’ double jeopardy claim. Id. at 788.
Finally, although, in their Amended Complaint, the Does waived their FERPA claim
by failing to mention the statute—or any other state or federal law when alleging SORA
substantially burdened their religion—the Ninth Circuit held the Does’ FERPA claim
passed muster because “it track[ed] with the language of the statute,” and so the Court was
accordingly obliged to “construe the pleadings in the light most favorable to plaintiffs.” Id.
at 794.
Ultimately, the Ninth Circuit remanded so this Court can “consider the effects of
SORA’s regulatory scheme, as amended and in its entirety, in determining whether it runs
afoul of the Constitution.” Wasden, 982 F.3d at 792; see also id. at 800 (VanDyke, J.,
concurring in part and dissenting in part) (“I narrowly concur in remanding to the district
court to determine whether SORA is punitive in effect and therefore violates the Ex Post
MEMORANDUM DECISION AND ORDER - 20

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 21 of 45

Facto Clause, without the mistaken belief that it is foreclosed by binding precedent.”).
4. Scope of Remand
The parties offer widely disparate interpretations of the Ninth Circuit’s holding in
Wasden. Defendants suggest “[w]hen the Ninth Circuit considered Plaintiffs’ prior
complaint, it did not decide whether Plaintiffs stated a claim under the Ex Post Facto
Clause. The Ninth Circuit instead disagreed with this Court’s prior reasoning, which was
inhibited by Plaintiffs’ ‘woefully inadequate briefing.’” Dkt. 76-1, at 5 (quoting Wasden,
982 F.3d at 795–96 (VanDyke, J., concurring in part and dissenting in part). By contrast,
Plaintiffs contend “the Ninth Circuit ruled Plaintiffs’ claims must proceed.” Dkt. 77, at 2.
Except with respect to Plaintiffs’ FERPA claim, the Court agrees with Defendants’
interpretation of the Ninth Circuit’s decision.
The Ninth Circuit outlined what this Court must do on remand. Specifically, the
Ninth Circuit explained “accepting the allegations as true, the district court must consider
only whether [Plaintiffs] alleged that SORA is punitive in effect.” Wasden, 982 F.3d at 791
(citing Iqbal, 556 U.S. at 678). In citing the well-known Iqbal standard for evaluating a
motion pursuant to Federal Rule of Civil Procedure 12(b)(6), the Ninth Circuit seemed to
both signal that it did not hold Plaintiffs’ ex post facto and double jeopardy claims “must
proceed,” and that this Court should anticipate a third motion to dismiss. Dkt. 77, at 2. Only
when assessing a motion to dismiss would the Court need to accept Plaintiffs’ allegations
as true. On summary judgment or at trial, “only the ‘clearest proof’ will suffice to override
legislative intent and transform what has been denominated a civil remedy into a criminal
penalty.” Smith, 538 U.S. at 92 (citations omitted); see also Creekmore v. Att’y Gen. of
MEMORANDUM DECISION AND ORDER - 21

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 22 of 45

Texas, 341 F. Supp. 2d 648, 662 (E.D. Tex. 2004) (granting summary judgment in favor
of defendant where plaintiff did not “present the clearest evidence” that effects of
registration scheme were punitive); Does #1-5 v. Snyder, 834 F.3d 696, 705–705 (6th Cir.
2016) (“Snyder”) (finding plaintiffs showed by the “clearest proof” during bench trial that
Michigan’s sexual offender registration statute imposed punishment).
Further, in reversing the Court’s dismissal order, the Ninth Circuit did not analyze
the Smith factors, or apply the standard for a facial challenge, both of which are necessary
to determine whether Plaintiffs have stated an ex post facto claim. See generally, Wasden,
982 F.3d 784. Because the Ninth Circuit did not hold that Plaintiffs plausibly alleged the
effects of SORA are so punitive in purpose or effect as to negate the State’s intention to
deem it civil, the Court rejects Plaintiffs’ claim that the Ninth Circuit held their ex post
facto and double jeopardy claims “must proceed.” Dkt. 77, at 2; Smith, 538 U.S. at 92.
Instead, the Ninth Circuit directed this Court to accept Plaintiffs’ allegations as true and
consider only whether Plaintiffs have plausibly alleged that SORA is punitive in effect.
Wasden, 982 F.3d at 791.
The same cannot be said of Plaintiffs’ FERPA claim, as the Ninth Circuit
specifically held:
To survive a motion to dismiss on their FERPA claim, Appellants must have
alleged facts showing that the challenged policy substantially burdens the
exercise of their religious beliefs. Appellants have done so here by alleging
in their Second Amended Complaint that SORA restricts them from

MEMORANDUM DECISION AND ORDER - 22

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 23 of 45

attending their houses of worship, thereby inhibiting an important and
sincerely motivated religious practice.18
Wasden, 982 F.3d at 794 (emphasis added) (citations omitted). The Fourth Amended
Complaint similarly alleges that SORA restricts Plaintiffs from attending their houses of
worship, thereby inhibiting their important and sincerely motivated religious practices.
Dkt. 73, ¶¶ 179–182, 184–18519, 224–226. As such, the Court finds Plaintiffs’ FERPA
claim must proceed pursuant to the Ninth Circuit’s express language.
Despite the Ninth Circuit’s explicit holding, Defendants suggest Plaintiffs’ general
allegations regarding FERPA are contradicted by allegations made by certain Plaintiffs
regarding specifically how SORA inhibits their religious beliefs. Dkt. 76-1, at 19. For
instance, Doe #115 alleges he wants “to be more involved with his church and his
children’s role in the church, but he cannot be as active as he would like [to] be, including
being a youth coach, because he is a sex offender.” Dkt. 73, ¶ 183. Defendants argue Doe
#115’s desire to be “more involved” “reveals that he already has some involvement—
meaning he can attend his house of worship.” Dkt. 76-1, at 19. That Doe #115 has some
involvement with his church does not mean he can attend services at his church. For
instance, Doe #115 may be involved through his relationship with church leaders or church
groups, but still be unable to attend services. Defendants’ contention fails to accept Doe

18

Notably, when considering Plaintiffs ex post facto and double jeopardy claims, the Ninth Circuit did not
include similar language concluding that Plaintiffs had successfully stated such claims. See generally
Wasden, 982 F.3d 784.

19

In paragraph 183 of the Fourth Amended Complaint, Plaintiffs include allegations regarding Doe #1’s
inability, as a registrant, to teach classes at his church and help at his church’s camp. Dkt. 73. Because Doe
#1 is no longer a plaintiff, his experiences are irrelevant to Plaintiffs’ as-applied FERPA claim.

MEMORANDUM DECISION AND ORDER - 23

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 24 of 45

#115’s allegations as true. Johnson, 534 F.3d at 1122.
Defendants also contend the allegation that “Doe #117 is restricted from attending
religious services . . . to avoid the possibility of noncompliance with SORA” does not mean
that Doe #117 is restricted from attending his church or that he is prohibited from a church
he wants to attend. Dkt. 76-1, at 19 (citing Dkt. 73, ¶ 185). As with their argument regarding
Doe #115, Defendants’ argument with respect to Doe #117 fails to accept his allegations
as true and does not construe the facts in the light most favorable to Doe #117, as the Court
must when evaluating the third Motion to Dismiss.
Finally, Defendants maintain the claims by Does #35, #36, #64, and #124 that they
cannot attend a church if it is within five hundred feet of a school or daycare misstates the
law because the relevant regulation prohibits only “knowingly loiter[ing] on a public way”
within five hundred feet of a school or daycare. Dkt. 76-1, at 19 (quoting Idaho Code § 188329(1)(b)). Defendants maintain “[a]ttending a religious service is not knowingly
loitering, and a house of worship is not a public way.” Id. at 20. Defendants do not cite any
authority to suggest Idaho Code § 18-8329(1)(b) does not preclude registrants from
attending religious services within five hundred feet of a school or daycare. Although they
may present evidence that the statute is not interpreted—by police or others—to preclude
attendance at religious services within five hundred feet of a school or daycare on summary
judgment or at trial, the Court cannot assess evidence at this stage of the proceedings and
must instead accept Plaintiffs’ contention that they cannot attend religious services within
five hundred feet of a school or daycare as true.
In sum, Plaintiffs state as-applied claims under FERPA.
MEMORANDUM DECISION AND ORDER - 24

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 25 of 45

5. Successive Motion to Dismiss
Before turning to the merits of Plaintiffs’ ex post facto and double jeopardy claims,
the Court next addresses Plaintiffs’ argument that Defendants’ third motion to dismiss is
procedurally barred by Federal Rule of Civil Procedure 12(g)(2). Dkt. 77, at 6–8.
Rule 12(g)(2) provides, in relevant part, “a party that makes a motion under this rule
must not make another motion under this rule raising a defense or objection that was
available to the party but omitted from its earlier motion.” However, an “amended
complaint supersedes the original, the latter being treated thereafter as nonexistent.” Lacey
v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (en banc). As such, a defendant may
file a successive motion to dismiss an amended complaint.20 See, e.g., In re Sony Grand
Wega KDF-EA10/A20 Series Rear Projection HDTV Television Litig., 758 F. Supp. 2d
1077, 1098 (S.D. Cal. 2010) (“When Plaintiffs filed [an Amended Complaint] it superseded
their previous complaint, and [Defendant] was therefore free to move again for
dismissal”)21; In re WellPoint, Inc. Out-of-Network UCR Rates Litig., 903 F. Supp. 2d 880,
893 (C.D. Cal. 2012) (explaining district courts within the Ninth Circuit have “permitted
defendants moving to dismiss an amended complaint to make arguments previously made
and to raise new arguments that were previously available”); Diehl v. Starbucks Corp.,
2014 WL 12540524, at *4 (S.D. Cal. June 17, 2014) (same); Chao v. Aurora Loan Services,

20

Moreover, as outlined above, the Ninth Circuit appeared to anticipate a successive motion to dismiss by
directing this Court to, on remand, accept Plaintiffs’ allegations as true and consider only whether Plaintiffs
plausibly alleged that SORA is punitive in effect. Wasden, 982 F.3d at 791.

21

Because an amended complaint supersedes the original, the Court’s policy “to only accept one (1) motion
to dismiss” typically does not apply when an amended complaint is filed. Dkt. 77, at 6 (citing Dkt. 75, at 1
n. 1).

MEMORANDUM DECISION AND ORDER - 25

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 26 of 45

2013 WL 5487420, at *4 (N.D. Cal. Sept. 30, 2013) (“Although Plaintiffs’ frustration with
[Defendant’s] incessant motion practice is understandable . . . Defendant is entitled to bring
another motion to dismiss in response to a newly-filed pleading”); Stamas v. Cty. of
Madera, 2019 WL 289310, at *4 (E.D. Cal. Jan. 15, 2010) (“[A]n amended pleading is a
new round of pleadings . . . and is subject to the same challenges as the original (i.e., motion
to dismiss, to strike, for more definite statement”)); Migliaccio v. Midland Nat. Life Ins.
Co., 2007 WL 316873, at *3 (C.D. Cal. Jan. 30, 2007) (rejecting plaintiffs’ argument that
Rule 12(g)(2) prohibited defendants from filing a successive motion to dismiss after
plaintiffs amended their complaint).
Even if the Court held that Rule 12(g)(2) applies to amended pleadings, a court may
exercise its discretion to consider a defense or objection that Rule 12(g)(2) would otherwise
bar if such consideration would further the policy that the Federal Rules be “constructed,
administered, and employed by the court and the parties to secure the just, speedy, and
inexpensive determination of every action and proceeding.” In re Apple iPhone Antitrust
Litig., 846 F.3d 313, 318 (9th Cir. 2017) (citing Fed. R. Civ. P. 1). As the Court explained
during oral argument, applying Rule 12(g)(2) under the current circumstances would allow
a plaintiff to effectively circumvent Rule 12(b)(6) by filing an inadequate complaint,
litigating a motion to dismiss and obtaining a dismissal without prejudice, and then filing
an amended complaint that could no longer be challenged with a motion to dismiss. Such
practice would not further the just resolution of a proceeding.
Further, as Defendants highlight, the Court held two status conferences with the
parties following the remand order. Dkt. 58; Dkt. 70. During both conferences, Plaintiffs
MEMORANDUM DECISION AND ORDER - 26

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 27 of 45

informed the Court and Defendants that they would file an amended complaint, Defendants
stated they intended to file a successive motion to dismiss, and Plaintiffs did not object or
otherwise raise their Rule 12(g)(2) argument. In fact, Plaintiffs expressly agreed to an
extended briefing schedule for the instant Motion to Dismiss. Dkt. 72. Denying the Motion
to Dismiss on procedural grounds after Plaintiffs implicitly agreed that a successive motion
could be filed would be unjust. Allowing Plaintiffs to now avoid Defendants’ Motion to
Dismiss under Rule 12(g)(2) would also greatly increase the expense and delay of this
proceeding given Plaintiffs’ failure to raise their procedural argument before the Motion
was fully briefed and argued—despite having two conferences with the Court during which
they could have done so.
In short, the Court rejects Plaintiffs’ argument that the instant Motion to Dismiss is
barred under Rule 12(g)(2).
B. The Smith intent-effects test
Having outlined the appropriate standard for assessing Plaintiffs’ constitutional
claims at this stage of the proceedings, the relevant provisions of SORA it must assess, and
the claims appropriately before it given the Ninth Circuit’s decision, the Court turns next
to Plaintiffs’ ability to state an ex post facto claim.
The Ex Post Facto Clause prohibits retroactive punishment for acts which could not
be punished at the time they were committed. Stogner v. California, 539 U.S. 607, 610
(2003). To fall within the ex post facto prohibition, “the law must be retrospective, that is,
it must apply to events occurring before its enactment; and second, it must disadvantage
the offender affected by it.” Neal v. Shimoda, 131 F.3d 818, 825 (9th Cir. 1997) (cleaned
MEMORANDUM DECISION AND ORDER - 27

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 28 of 45

up). Here there is no dispute that SORA is retrospective; its many amendments apply to
Plaintiffs even though they were sentenced before most of these restrictions were
established. For instance, when they were sentenced in, or moved to, Idaho, all Plaintiffs
would later have been eligible for release from the registration requirement under the
previous version of SORA. Dkt. 73, ¶¶ 20, 28, 46, 57, 67, 78. The 2009 Amendments
instead subject Plaintiffs to lifetime registration and foreclose any opportunity for them to
be removed from the registry. Id., ¶¶ 22, 32, 47, 59, 69, 81.
With respect to disadvantage, the Supreme Court has explained the Ex Post Facto
Clause “is aimed at laws that ‘retroactively alter the definition of crimes or increase the
punishment for criminal acts.’” California Dep’t of Corr. v. Morales, 514 U.S. 499, 504
(1995) (quoting Collins v. Youngblood, 497 U.S. 37, 43 (1990)). “This can be satisfied by
showing that ‘the new scheme, taken as a whole, is disadvantageous.’” Neal, 131 F.3d at
826 (quoting Nulph v. Faatz, 27 F.3d 451, 455 (9th Cir. 1994)). Plaintiffs allege they are
disadvantaged by: (1) geographic exclusion zones which limit where they may reside,
work, or attend religious services; (2) extensive reporting requirements which require them
to “immediately” notify law enforcement for a wide variety of activities, including travel,
or risk felony prosecution; (3) employment restrictions which bar them from accepting
employment at any day care center, group day care facility, or family day care home; and
(4) the inability to attend their children’s educational or extracurricular activities. See
generally, Dkt. 73. As such, Plaintiffs plausibly allege they are disadvantaged by SORA
and its many amendments. Notably, Defendants do not suggest otherwise.
As noted supra, note 14, to determine whether a retroactive law violates the Ex Post
MEMORANDUM DECISION AND ORDER - 28

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 29 of 45

Facto Clause, the Court must first “ascertain whether the legislature meant the statute to
establish ‘civil proceedings.’” Smith, 538 U.S. at 92 (citing Kansas, 521 U.S. at 361). “If
the intention of the legislature was to impose punishment, that ends the inquiry,” and the
law violates the Ex Post Facto Clause. Smith, 538 U.S. at 92. If, however, the intention was
to enact a regulatory scheme that is civil and nonpunitive,” the Court must examine
“whether the statutory scheme is so punitive either in purpose or effect as to negate the
State’s intention to deem it civil.” Id. (cleaned up).
1. Intent of SORA
It appears the Ninth Circuit affirmed this Court’s prior conclusion that the intent of
SORA is civil and not punitive. Dkt. 47, at 12–13. Specifically, the Ninth Circuit seems to
have agreed with this Court’s determination that Idaho did not intend to impose punishment
in enacting SORA by twice stating that, on remand, this Court must consider whether
SORA is “punitive in effect.” Wasden, 538 U.S. at 791–792 (emphasis added). If the Ninth
Circuit disagreed with this Court’s finding that Idaho did not intend to impose punishment
in enacting, and amending, SORA, there would be no need for the Court to consider
whether the effect of SORA is punitive. Instead, if the intent of the law was punitive,
retroactive enforcement of SORA would violate the Ex Post Facto Clause. Smith, 538 U.S.
at 92. However, even if the Ninth Circuit did not consider this Court’s conclusion with
respect to Idaho’s civil intent in passing, and amending, SORA, the Court again finds the
intent of the statute and its many amendments is to protect the public, and not to punish sex
offenders.
“Whether a statutory scheme is civil or criminal ‘is first of all a question of statutory
MEMORANDUM DECISION AND ORDER - 29

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 30 of 45

construction.’” Smith, 538 U.S. at 92 (quoting Kansas, 521 U.S. at 361). A statute’s text
and structure are considered in determining the legislative objective. Id. Here, the Idaho
legislature delineated the civil intent of SORA in the statutory text itself. Specifically,
Idaho Code § 18-8302 provides:
The legislature finds that sexual offenders present a danger and that efforts
of law enforcement agencies to protect their communities, conduct
investigations and quickly apprehend offenders who commit sexual offenses
are impaired by the lack of current information available about individuals
who have been convicted of sexual offenses who live within their
jurisdiction. The legislature further finds that providing public access to
certain information about convicted sexual offenders assists parents in the
protection of their children. Such access further provides a means for
organizations that work with youth or other vulnerable populations to prevent
sexual offenders from threatening those served by the organizations. Finally,
public access assists the community in being observant of convicted sexual
offenders in order to prevent them from recommitting sexual crimes.
Therefore, this state’s policy is to assist efforts of local law enforcement
agencies to protect communities by requiring sexual offenders to register
with local law enforcement agencies and to make certain information about
sexual offenders available to the public as provided in this chapter.
Thus, the Idaho legislature expressly found that “sexual offenders present a danger,”
that law enforcement agencies are hampered in their ability to protect communities from
sex offenders in the absence of current information about offenders, and that providing
public access to certain information about sex offenders will assist law enforcement,
parents, communities, and organizations that work with youth and other vulnerable
populations to protect children. I.C. § 18-8302. As the Supreme Court observed in Smith,
“an imposition of restrictive measures on sex offenders adjudged to be dangerous is a
legitimate nonpunitive governmental objective and has been historically so regarded.” 538
U.S. at 93 (cleaned up). Because nothing on the face of SORA “suggests that the legislature

MEMORANDUM DECISION AND ORDER - 30

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 31 of 45

sought to create anything other than a civil . . . scheme designed to protect the public from
harm,” and the Legislature instead specifically identified only an intent to protect the
public, the Court finds the intent of SORA is regulatory and not punitive. Id.
Moreover, Idaho courts have continued to recognize the civil intent of SORA even
after its many amendments. Shortly after the Ninth Circuit remanded this case, the Idaho
Supreme Court held SORA: (1) “provides an essential regulatory purpose that assists law
enforcement and parents in protecting children and communities”; (2) “seeks to aid law
enforcement in the protection of their communities by requiring sex offenders to register
with local law enforcement agencies”; and (3) “is not an additional punishment.” State v.
Glodowski, 463 P.3d 405, 409 (Idaho 2020) (citations omitted).
Prior to Glodowski, the Idaho Supreme Court consistently held the intent of SORA
is not punitive. Ray v. State, 982 P.2d 931, 935 (Idaho 1999) (“The purpose of Idaho’s
registration statute is not punitive, but remedial”), abrogated on other grounds by Icanovic
v. State, 363 P.3d 365, 367 (Idaho 2015); State v. Joslin, 175 P.3d 764, 775 (Idaho 2007)
(considering SORA before the 2009 amendments and concluding the purpose of SORA is
not punitive but instead to provide “an essential regulatory purpose that assists law
enforcement and parents in protecting children and communities.”); State v. Johnson, 266
P.3d 1145, 1150 (Idaho 2011) (finding SORA as a whole to be regulatory in purpose, even
after the 2009 amendments).
The Idaho Court of Appeals has also repeatedly so held. In State v. Gragg, 137 P.3d
461, 463 (Idaho Ct. App. 2005), the Idaho Court of Appeals evaluated SORA under Smith
and found no evidence to suggest the Legislature intended to create a civil scheme. In 2014,
MEMORANDUM DECISION AND ORDER - 31

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 32 of 45

the Idaho Court of Appeals determined the retroactive application of the 2001 and 2009
amendments to SORA—which define more offenses as aggravated offenses and preclude
those convicted of aggravated offenses from obtaining an exemption to the registration
requirement—and found no reason to infer that the Idaho Legislature intended such
amendments to be anything other than civil and non-punitive. Groves v. State, 328 P.3d
532, 536 (Idaho Ct. App. 2014) (citing State v. Johnson, 266 P.3d at 1148). In 2017, after
additional amendments to SORA in 2011, 2012, and 2013, the Idaho Court of Appeals
reiterated that the legislative intent of SORA is to “create a civil, regulatory scheme.” Knox
v. State, 404 P.3d 1280, 1284 (Idaho Ct. App. 2017) (citing Groves, 328 P.3d at 535). And,
in State v. Kinney, 417 P.3d 989, 996 (Idaho Ct. App. 2018), the Idaho Court of Appeals
reviewed the many amendments to SORA and held such changes did not “tip the scales”
and change the purpose of SORA from “nonpunitive to punitive.”
Finally, although they conclusively state the “intent of the current version of SORA
is punitive” in their Fourth Amended Complaint, Plaintiffs did not provide any additional
allegations to support this conclusion. Dkt. 73, ¶ 204. Nor did Plaintiffs address the
purportedly punitive intent of SORA in their opposition to the instant Motion to Dismiss.
See generally, Dkt. 77. During oral argument, Plaintiff’s counsel conceded that Plaintiffs
do not rely on punitive intent, but rather contend that the effects of SORA and its many
amendments are punitive regardless of legislative intent.
In sum, the Court again finds SORA was enacted and amended with a civil, and
nonpunitive, legislative intent.

MEMORANDUM DECISION AND ORDER - 32

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 33 of 45

2. Effects of SORA
Since the intent of SORA is civil, the Court must next consider whether Plaintiffs
have plausibly alleged that SORA is nevertheless so punitive in effect as to negate the
legislature’s intent to deem it civil. Smith, 538 U.S. at 92. The Supreme Court established
five “guideposts”22 that are relevant when considering whether SORA’s actual effects are
punitive. These include whether the law: (1) inflicts sanctions which have historically been
regarded as punishment; (2) imposes an affirmative disability or restraint; (3) promotes the
traditional aims of punishment; (4) has a rational connection to a nonpunitive purpose; and
(5) is excessive with respect to this purpose. Id. at 97 (citing Kennedy v. MendozaMartinez, 372 U.S. 144, 168–69 (1963)).
a. Punishment
Plaintiffs contend SORA’s reporting, surveillance, and supervision requirements
“are much like, but more restrictive and onerous than, the reporting, surveillance, and
supervision that Plaintiffs experienced while serving their sentences on probation or
parole.” Dkt. 73, ¶ 161. For instance, Plaintiffs highlight they are required to report
annually in person and must provide a photograph,23 fingerprints, and palm prints. Id., ¶
156. In addition to yearly mandatory reporting, Plaintiffs must report in person, within two
working days, whenever certain information changes, including a change in name,
residence, employment, or student status. Id., ¶ 157. Immediate reporting is required for

22

Because such factors “are designed to apply in various constitutional contexts,” they are “neither
exhaustive nor dispositive.” Id. at 97 (citations omitted).

23

If a Plaintiff’s appearance changes, s/he must update the photograph. Id., ¶ 156.

MEMORANDUM DECISION AND ORDER - 33

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 34 of 45

any changes in vehicle information or internet usernames, as well as for any lodging or
travel that is seven days or longer. Id., ¶¶ 158–159. There are no good cause exceptions to
the notification and reporting requirements, and regardless of illness, injury, transportation
issues, or other emergencies, Plaintiffs must report within two days or face criminal
charges. Id., ¶ 160. The current version of SORA imposes penalties of up to ten years
imprisonment for violating the law. Id., ¶ 198.
Given the burdensome extent of the reporting requirements and the criminal
sanctions associated with a failure to comply, Plaintiffs plausibly allege their lives and
travel are supervised in ways that resemble probation and parole.24 Dkt. 77, at 13 (quoting
United States v. Knights, 534 U.S. 112, 119 (2001)). Like parolees, Plaintiffs contend they
are not free to move where they wish or to live and work as other citizens, without
supervision. Smith, 538 U.S. at 101.
In addition, Plaintiffs plausibly allege SORA resembles, at least in some respects,
the ancient punishment of banishment. Specifically, the current version of SORA bars
Plaintiffs from residing within five hundred feet of a school or daycare, measured from the
nearest point of the exterior wall of the registrant’s dwelling unit to the school’s or

24

Defendants argue SORA’s reporting and other requirements cannot be analogized to probation or parole
because SORA “itself applies after the registrant’s incarceration ends. . . . [SORA’s] requirements are
distinct from the registrant’s criminal sentence.” Dkt. 76-1, at 8. As Plaintiffs note, ex post facto analysis
looks to analogy, not the technicality of whether incarceration has informally ended. Dkt. 77, at 13 n. 3
(citing Burgess v. Salmon, 97 U.S. 381, 385 (1878) (“the ex post facto [clause] cannot be evaded by giving
a civil form to that which is essentially criminal”)). Moreover, under Defendant’s rationale, SORA could
impose nearly any potential restraint and not be considered punitive simply because such restraints apply
after the offender is released from prison. The many cases Plaintiffs cite which have held various
registration schemes violate the Ex Post Facto Clause illustrate this is not the case. See generally, Dkt. 73;
Dkt. 77.

MEMORANDUM DECISION AND ORDER - 34

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 35 of 45

daycare’s property line. Dkt. 73, ¶ 168 (citing I.C. § 18-8329(d)).25
Plaintiffs note the current version of SORA also bars them from “loitering” within
five hundred feet from the property line of school or daycare grounds, including properties
posted with a notice that they are used by a school or daycare, any time there are children
present at the school or daycare for regular activities or within thirty minutes before or after
such activities. Id., ¶ 169 (citing I.C. § 18-8329(b)).
Plaintiffs are also barred from applying for, or accepting employment at, any day
care center, group day care facility, or family day care home. Id., ¶ 174 (citing I.C. § 188327(1)). Employers who hire registrants are listed on the public sex offender registry,
further limiting Plaintiffs’ available employment. Id., ¶¶ 174–175 (citing I.C. § 188305(1)(k)).26
In addition, SORA significantly limits Plaintiffs’ ability to travel. For instance,
Plaintiffs must provide in-person notice of their presence to law enforcement in the
jurisdiction to which they travel, even if such jurisdictions do not impose a registration
requirement. I.C. § 18-8309(2). Because sex offender laws are complex and vary from state
to state, it is difficult for registrants to obtain accurate information about either affirmative
reporting obligations (such as registering one’s presence in a state), or prohibitions on
ordinary behavior (such as visiting a library or park) in other jurisdictions. Plaintiffs allege
they avoid interstate and intrastate travel due to the risk of unintentionally violating SORA.
25

Plaintiffs are exempted from the exclusion zone within five hundred feet of a school if he or she
established residency within the exclusion zone before July 1, 2006, and within five hundred feet of a
daycare if he or she established residency within the exclusion zone before July 1, 2020. I.C. §§ 18-8329(d).

26

This provision also applies to organizations where Plaintiffs volunteer.

MEMORANDUM DECISION AND ORDER - 35

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 36 of 45

Dkt. 73, ¶¶ 186–193.
Construing the Fourth Amended Complaint in the light most favorable to them,
Plaintiffs plausibly allege SORA is like banishment because its restrictions significantly
limit where they may legally live, “loiter,” travel, and work. Id., ¶¶ 163–178; Snyder, 834
F.3d at 702 (finding Michigan’s sex offender registration law resembled banishment
because offenders were forced to tailor much of their lives around school zones, and often
had great difficulty finding places where they could legally live and work).27
b. Affirmative Disability or Restraint
To determine whether Plaintiffs have plausibly alleged SORA imposes an
affirmative disability or restraint, the Court considers how the effects of SORA are felt by
those who are subject to it. Smith, 538 U.S. at 100. “If the disability or restraint is minor
and indirect, its effects are unlikely to be punitive.” Id.
Plaintiffs allege SORA mandates multiple restraints that are far from minor,
including: (1) lifetime registration, Dkt. 73, ¶¶ 150–154; (2) a lifetime of extensive
requirements for in-person reporting and surveillance, with no good cause exceptions, and

27

The Court rejects Plaintiffs’ claim that SORA resembles traditional shaming punishments, Dkt. 77, at 13,
because the Supreme Court and Ninth Circuit have repeatedly held laws requiring sex offender registration
and notification merely “involve the dissemination of accurate information about a criminal record, most
of which is already public. . . . Publicity may cause adverse consequences for the convicted defendant,
running from mild personal embarrassment to social ostracism. In contrast to the colonial shaming
provisions, however, the State does not make the publicity and the resulting stigma as an internal part of
the objective of the regulatory scheme.” Smith, 538–549 (cleaned up); Masto, 670 F.3d at 1057 (“Historical
shaming punishments were intended to expose and publicly disgrace individuals, while sex offender
registration laws disseminate accurate information about offenders for public safety purposes”); Elk
Shoulder, 738 F.3d at 954 (rejecting Plaintiff’s claim that, in part because of the availability of the internet,
sex offender registration scheme resembled shaming punishments of the colonial period); Maciel v. Cate,
731 F.3d 928, 937 (9th Cir. 2013) (finding monthly reporting and publication of sexual offender information
on the internet were regulatory and not punitive requirements).

MEMORANDUM DECISION AND ORDER - 36

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 37 of 45

criminal penalties for failure to report, id. at ¶¶ 155–162; (3) limitations on parenting, as
registrants cannot volunteer at their children’s schools or attend school events since they
are generally restricted from being on the premises of any school building, school grounds,
daycare, or conveyance owned or leased by a school or daycare if minors are present or
will be present within a half hour, id. at ¶¶ 163, 166; (4) the inability to visit relatives given
reporting requirements and the risk of unintentionally violating SORA, id. at ¶¶ 164–165;
(5) limited housing and employment options,28 id. at ¶¶ 167–178; and (5) significant
limitations on travel, id. at ¶¶ 186–193.29
Although such restraints are not physical in nature, Plaintiffs contend SORA
significantly controls their parenting, familial relationships, housing, employment, and
travel. If they fail to comply with SORA, Plaintiffs risk serious punishment, including
imprisonment, which is “the paradigmatic affirmative disability or restraint.” Smith, 538
U.S. at 100 (citing Hudson v. United States, 522 U.S. 93, 104 (1997)). Although SORA’s
employment restrictions are less harsh than occupational debarment, which the Supreme
Court has held nonpunitive, Hudson, 522 U.S. at 104, Plaintiffs identify restrictions far
more onerous than those considered in Smith. Dkt. 73, at ¶¶ 150–201. Moreover, as the

28

Of course, to succeed on the merits of their ex post facto claim, Plaintiffs will have to establish with
evidence that SORA imposes substantial occupational and/or housing disadvantages for registrants that
would not have otherwise occurred through the use of routine background checks by employers and
landlords. Smith, 538 U.S. at 100. For purposes of the instant Motion to Dismiss, Plaintiffs have plausibly
alleged SORA imposes significant restrictions on housing and employment. Dkt. 73, ¶¶ 167–178.

29

Defendants contend many of Plaintiffs’ allegations regarding the restrictions SORA imposes are “wrong
as a matter of law or irrelevant.” Dkt. 76-1, at 6 n. 4. For instance, the restrictions on living near, working
for, or being on the premises of a school or daycare have several exceptions. Id. Whether such exceptions,
other provisions of SORA, or the way SORA is enforced reduce the housing, employment, and other
restrictions SORA imposes are issues for summary judgment or trial. At this stage of the proceedings, the
Court must accept Plaintiffs’ allegations as true.

MEMORANDUM DECISION AND ORDER - 37

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 38 of 45

Sixth Circuit explained in Snyder, “surely, something is not ‘minor and indirect’ just
because no one is actually being lugged off in cold irons bound. Indeed, those irons are
always in the background since failure to comply carries with it the threat of serious
punishment, including imprisonment.” 834 F.3d at 704.
In short, Plaintiffs plausibly allege the totality of restraints SORA imposes are
significant and direct.
c. Traditional Aims of Punishment
The traditional aims of punishment are incapacitation, retribution, and deterrence.
Graham v. Florida, 560 U.S. 48, 71 (2010); Snyder, 834 F.3d at 704. One of the express
goals of SORA is to deter registrants from re-offending. I.C. § 18-8302 (explaining “public
access assists the community in being observant of convicted sexual offenders in order to
prevent them from recommitting sexual crimes”).30
Plaintiffs allege SORA is also retributive because it imposes lifetime registration on
all registrants convicted of an aggravated offense, without any individual assessment of a
registrant’s dangerousness. Dkt. 77, at 13. When a restriction is “imposed equally upon all
offenders, with no consideration given to how dangerous any particular registrant may be
to public safety, that restriction begins to look far more like retribution for past offenses
than regulation intended to prevent future ones.” Commonwealth v. Baker, 295 S.W. 3d
437, 444 (Ky. 2009)); see also Doe v. State, 189 P.3d 999, 1014 (Alaska 2008) (stating

30

However, “[a]ny number of governmental programs might deter crime without imposing punishment. To
hold that the mere presence of a deterrent purpose renders such sanctions criminal would severely
undermine the Government’s ability to engage in effective regulation.” Smith, 538 U.S. at 102.

MEMORANDUM DECISION AND ORDER - 38

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 39 of 45

when a law “determines who must register based not on a particular determination of the
risk the person poses to society but rather on the [conviction],” it creates a “retributive
effect that goes beyond any non-punitive purpose and that essentially serves the traditional
goals of punishment”).31 As noted, Plaintiffs also risk incarceration—the paradigmatic aim
of punishment—if they fail to comply with SORA’s provisions. I.C. § 18-8311; Smith, 538
U.S. at 100.
In short, Plaintiffs plausibly allege SORA promotes the traditional aims of
punishment.32
d. Rational Relationship to a Nonpunitive Purpose
SORA’s “rational connection to a nonpunitive purpose” is the “most significant
factor” in assessing whether the statute is punitive in purpose or effect. Smith, 538 U.S. at
102 (cleaned up). However, a statute “is not deemed punitive simply because it lacks a
close or perfect fit with the nonpunitive aim it seeks to advance.” Id. at 103. Defendants

31

In his concurrence in Smith, 538 U.S. at 109, Justice Souter similarly explained:
The fact that the Act uses past crimes as the touchstone, probably sweeping in a significant
number of people who pose no real threat to the community, serves to feed suspicion that
something more than regulation of safety is going on; when a legislature uses prior
convictions to impose burdens that outpace the law’s stated civil aims, there is room for
serious argument that the ulterior purpose is to revisit past crime, not prevent future ones.

32

Defendants argue SORA’s regulations “pale in comparison to living in prison,” and that a would-be sex
offender will “thus be deterred (if at all) by the prospect of a long prison sentence, not by the Act’s
regulations.” Dkt. 76-1, at 9. Defendants also suggest SORA is not retributive because its regulations are
“forward looking, protecting the community and children from future crimes—not requiring the registrant
to pay a penalty for the past.” Id. at 10. In addition, Defendants highlight that SORA does not incapacitate
registrants, but rather leaves registrants “generally free to live, work interact, recreate, and otherwise
participate in the Idaho community in which they reside.” Id. The parties will have the opportunity to
address SORA’s purportedly punitive effects—or lack thereof—after discovery. For purposes of the instant
Motion, Plaintiffs have plausibly alleged that regardless of its regulatory intent, SORA’s effects
nevertheless serve the traditional aims of punishment.

MEMORANDUM DECISION AND ORDER - 39

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 40 of 45

argue SORA “provides an essential regulatory purpose that assists law enforcement and
parents in protecting children and communities.” Dkt. 76-1, at 10 (quoting Glodowski, 463
P.3d at 409). To advance Idaho’s interest in protecting its communities, and especially its
children, from sexual abuse, Defendants contend it is reasonable for Idaho to inform its
citizens about individuals who have committed a sex crime, and to prevent recidivism by
protecting children from sex offenders while they are at school or daycare, when their
parents are not present to protect them. Dkt. 79-1, at 11 (citations omitted).
Plaintiffs counter that other courts, after assessing a full record, have found
“significant doubt by recent empirical studies [that] . . . [t]he risk of recidivism posed by
sex offenders is frightening and high.” Dkt. 77, at 15 (quoting Snyder, 834 F.3d at 704). In
fact, in Snyder, the record revealed that registration laws either did not affect recidivism,
or even increased recidivism, most likely because such laws exacerbate risk factors for
recidivism by making it difficult for registrants to find jobs and housing, and to reintegrate
into society. Snyder, 834 F.3d at 704–705. Here, Plaintiffs allege that in addition to
heightened registration obligations, SORA retroactively subjects them to significant
restrictions on where they can live, work, and travel. Dkt. 73, at ¶¶ 167–178, 186–193.
Plaintiffs also contend SORA lacks a rational relationship to recidivism because it
imposes lifetime registration on those convicted of an aggravated offense without any
individualized assessment of an offender’s proclivities or dangerousness.33 Dkt. 77, at 16
33

However, “the Ex Post Facto Clause does not preclude a State from making reasonable categorical
judgments that conviction of specified crimes should entail particular regulatory consequences.” Smith, 538
U.S. at 103. A developed record will assist the parties in arguing, and the Court in assessing, whether
SORA’s distinction between aggravated offenders required to register for life, and non-aggravated
offenders permitted to petition for release from the registration requirement after ten years, is reasonable.

MEMORANDUM DECISION AND ORDER - 40

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 41 of 45

(citing Snyder, 834 F.3d at 705). Plaintiffs suggest lifetime registration is particularly
irrational, as a developed record will show that recidivism drops off dramatically over time.
Id. In fact, none of the six Plaintiffs have reoffended in the decades since their conviction
of the offense for which they must register for life. Dkt. 73, at ¶¶ 16, 19, 26, 31, 36, 45, 51,
54, 63, 65, 73, 76.
With respect to Defendants’ contention that SORA assists law enforcement and
parents in protecting children and communities, Plaintiffs highlight that registrants may
work next to a school but may not live near a school. Plaintiffs note “‘it is difficult to see
how public safety is enhanced’ by prohibiting registrants from living near a school, as they
would be near the school mostly at night—when no children are present—but allowing
registrants to be near the school during the day—when children are present.”34 Dkt. 77, at
16 (quoting Baker, 295 S.W.3d at 445). Similarly, Plaintiffs argue SORA’s reporting
requirements when registrants travel out of state make little sense, as most other
jurisdictions do not require them to report, and they are often turned away without any
actual monitoring. Dkt. 77, at 16 (citing Dkt. 73, at ¶¶ 188–89, 191–92).
Ultimately, the Court finds whether SORA’s extensive regulations actually assist
law enforcement and parents in protecting Idaho’s children and communities, and prevent
recidivism, are issues appropriately reserved for summary judgment, after the parties have
had the opportunity to develop the record. See generally, Smith, 538 U.S. 84 (reviewing

34

Of course, although SORA allows sex offenders to work near a school or daycare, it prevents them from
working for a school or daycare. As Defendants note, the latter provision of SORA reduces the chance that
children will view a sex offender as a trusted authority figure. Dkt. 76-1, at 11.

MEMORANDUM DECISION AND ORDER - 41

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 42 of 45

constitutionality of Alaska Sex Offender Registration Act on appeal from rulings on crossmotions for summary judgment); Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1 (2003)
(reviewing on appeal from grant of summary judgment on constitutional challenges to
Connecticut’s sex offender registry law); Neal, 131 F.3d 818 (reviewing on appeal from
grant of summary judgment on prisoners’ constitutional challenges to Hawaii’s sex
offender treatment program).
At this stage of the proceedings, Plaintiffs plausibly allege that SORA lacks a
rational connection to a nonpunitive purpose because SORA purportedly does not, in fact,
reduce recidivism or assist law enforcement and parents in protecting children. Dkt. 73, ¶¶
145, 150–154.
e. Excessiveness
With respect to whether a retroactive law is excessive, the Supreme Court has
explained courts are not asked to “determine[e] whether the legislature has made the best
choice possible to address the problem it seeks to remedy.” Smith, 538 U.S. at 105. Instead,
the “question is whether the regulatory means chosen are reasonable in light of the
nonpunitive objective.” Id.
Defendants argue SORA protects communities by making citizens aware of sex
offenders in the area and protects children by limiting the opportunities for a sex offender
to be near a child or to earn a child’s trust when the child’s parents are not present for
protection. Defendants suggest SORA offers these protections in a careful way, such as by
creating five hundred feet safe zones around schools and daycares, which is a lesser
distance than those imposed by other states. Dkt. 76-1, at 12 (noting California and
MEMORANDUM DECISION AND ORDER - 42

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 43 of 45

Mississippi mandate four to six times larger safe zones around schools and daycares).
Defendants also highlight there are many exceptions to SORA’s restrictions—such as
allowing offenders to receive permission to pick up or drop off their own children at school
or to attend their children’s extracurricular activities—which lessen the restraint such safe
zones impose. Id.
Plaintiffs argue that given the above-discussed uncertainty about SORA’s efficacy,
the restraints it imposes are excessive. Plaintiffs highlight that Snyder and other courts have
deemed “super registration” schemes like SORA excessive, especially absent an
individualized risk assessment. Dkt. 77, at 16–17 (citing Snyder, 834 F.3d at 705)
(explaining the punitive effects of blanket restrictions on where registrants can live, work,
and loiter far exceeded “even a generous assessment of their salutary effects”); see also
People v. Betts, 968 N.W. 2d 497, 515 (Mich. 2021) (“[D]emanding and intrusive
requirements, imposed uniformly on all registrants regardless of an individual’s risk of
recidivism, were excessive in comparison to SORA’s asserted public-safety purpose.”);
Wallace v. State, 905 N.E.2d 371, 384 (Ind. 2019) (finding public safety goals did not
“render as non-punitive a statute that is so broad and sweeping,” absent a mechanism to
seek removal “even on the clearest showing of rehabilitation”); Doe v. State, 111 A.3d
1077, 1100 (N.H. 2015) (stating absent a “meaningful risk to the public . . . [lifetime
registration] becomes wholly punitive”); Baker, 295 S.W. at 446 (“Given the drastic
consequences . . . and the fact that there is no individual determination of the threat a
particular registrant poses to public safety, we can only conclude that [the law] is excessive
with respect to the non-punitive purpose of public safety.”); Starkey v. Okla. Dep’t of Corr.,
MEMORANDUM DECISION AND ORDER - 43

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 44 of 45

305 P.3d 1004, 1030 (Okla. 2013) (finding registration statute was excessive in relation to
non-punitive purpose because its “many obligations impose[d] a severe restraint on liberty
without a determination of the threat a particular registrant pose[d] to public safety”); State
v. Pollard, 908 N.E. 2d 1145, 1153 (Ind. 2009) (holding statute exceeded non-punitive
purpose because it restricted residency “without considering whether particular offender is
a danger”).
Given the questions Plaintiffs have raised regarding SORA’s rational relationship
to a nonpunitive purpose, in addition to their allegations regarding the extreme hardships
SORA imposes without an individualized assessment of a registrant’s dangerousness, Dkt.
73, at ¶¶ 150–201, Plaintiffs plausibly allege that SORA is excessive despite its
nonpunitive policy.
In sum, after assessing the Smith factors, the Court finds Plaintiffs plausibly allege
the effects of SORA are punitive. Plaintiffs’ ex post facto claim accordingly survives
dismissal.
f. Double Jeopardy
“[T]he inquiry into whether a law constitutes retroactive punishment in violation of
the Double Jeopardy Clause is identical to that with respect to the Ex Post Facto Clause.”
Litmon, 768 F.3d at 1242. Because the Court finds Plaintiffs state an ex post facto claim,
they state a double jeopardy claim as well.
V. CONCLUSION
Plaintiffs have plausibly alleged that SORA is so punitive in effect that it negates
the Idaho legislature’s intent to enact a civil regulatory scheme. As such, Plaintiffs’ ex post
MEMORANDUM DECISION AND ORDER - 44

Case 1:16-cv-00429-DCN Document 90 Filed 06/29/23 Page 45 of 45

facto and double jeopardy claims survive the instant Motion to Dismiss. Given the Ninth
Circuit’s holding in Wasden, 982 F.3d at 794, the Court also finds Plaintiffs’ FERPA claim
must proceed. Although Plaintiffs may litigate each of their claims, it is important to note
that the Court is not, at this juncture, holding SORA is facially unconstitutional. To find
SORA unconstitutional, “‘only the clearest proof’ will suffice to override legislative intent
and transform what has been denominated a civil remedy into a criminal penalty.” Smith,
538 U.S. at 92 (citing Hudson, 522 U.S. at 100). In light of this standard, Plaintiffs must
carry a heavy burden to ultimately succeed on their claims.
VI. ORDER
IT IS HEREBY ORDERED:
1. Defendants’ Motion to Dismiss (Dkt. 76) is DENIED;
2. The previous Scheduling Order (Dkt. 75) is VACATED;
3. The Court will send out a new Litigation Order and Notice of Telephonic
Scheduling Conference following entry of this Order.

DATED: June 29, 2023
_________________________
David C. Nye
Chief U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 45