Doe et al v. Caldwell et al
Filing
55
ORDER & REASONS denying 29 MOTION to Dismiss Case filed by Barry Matheny, Eugenie C. Powers, James D. Caldwell, Michael D. Edmondson, Charles Dupuy & James M LeBlanc & resetting 32 MOTION to Certify Class & 33 MOTION for Summary Judgment filed by Bayard Doe, Ruth Doe, Brenda Doe & Emma Doe. Signed by Judge Martin L.C. Feldman on 12/20/2012.(caa, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EMMA DOE, ET AL.
CIVIL ACTION
v.
NO. 12-1670
JAMES CALDWELL, ET AL.
SECTION "F"
ORDER AND REASONS
Before the Court are three motions: (1) the defendants’ motion
to dismiss; (2) the plaintiffs’ motion for class certification; and
(3) the plaintiffs’ motion for summary judgment.
For the reasons
that follow, the defendants’ motion to dismiss is DENIED and the
plaintiffs’ motions for class certification and summary judgment
are continued, to be reset because of inadequate briefing.
Background
This putative class action lawsuit follows this Court’s March
29, 2012 ruling in Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La.
2012), in which the Court declared that Louisiana’s sex offender
registry
law,
which
mandates
sex
offender
registration
by
individuals convicted of violating the State’s Crime Against Nature
by Solicitation statute, but not those convicted for the identical
sexual conduct under the Prostitution statute, deprived individuals
of Equal Protection of the laws; the nine plaintiffs in Doe I have
since been relieved by the State of their sex offender registration
obligations.
In this new lawsuit, the plaintiffs and proposed
1
class members now challenge the requirement that, notwithstanding
Doe I, the State claims to be without the authority to act and they
continue to face mandatory sex offender registration as a result of
their convictions for Crime Against Nature by Solicitation.
The facts underlying the Equal Protection challenge advanced
in Doe I are more completely set forth in that opinion.
Supp. 2d 995 (E.D. La. 2012).1
851 F.
The Judgment, which was entered on
April 11, 2012, provides in part:
IT IS HEREBY DECLARED, ORDERED, ADJUDGED AND
DECREED that:
1. The application of the Registration of Sex
Offenders, Sexually Violent Predators, and Child
1
In Louisiana, the solicitation of oral or anal sex for
compensation can be prosecuted under two statutes: the solicitation
provision of the Prostitution statute and the Crime Against Nature
by Solicitation statute.
The solicitation provision of the
Prostitution statute outlaws “[t]he solicitation by one person of
another with the intent to engage in indiscriminate sexual
intercourse with the latter for compensation.”
La.R.S.
14:82(A)(2). The Prostitution statute defines “sexual intercourse”
as “anal, oral, or vaginal sexual intercourse.” La.R.S. 14:82(B).
The Crime Against Nature by Solicitation statute forbids
“solicitation by a human being of another with the intent to engage
in any unnatural carnal copulation for compensation.”
La.R.S.
14:89.2(A). “Unnatural carnal copulation” is defined as oral or
anal sexual intercourse. See, e.g., Louisiana v. Smith, 766 So.2d
501, 504-05 (La. 2000).
On February 15, 2011 nine plaintiffs, proceeding
pseudonymously, sued the defendants in their official capacities
under 42 U.S.C. § 1983 to challenge the constitutionality of
Louisiana’s mandatory inclusion of one particular crime on the
State’s sex offender registry, the Crime Against Nature by
Solicitation statute. This Court determined that there was no
rational legislative purpose in requiring registration as a sex
offender for persons convicted for violation of Crime Against
Nature by Solicitation when conviction under the identical
solicitation provision of Louisiana’s Prostitution statute
commanded no sex offender registration. See Doe I.
2
Predators law (Registry Law), La.R.S. § 15:540 et seq.,
to those convicted of Crime Against Nature by
Solicitation under La.R.S. § 14:89(A)(2) or La.R.S. §
14:89.2(A), and their inclusion on the State Sex Offender
& Child Predator Registry (SOCPR) pursuant to La.R.S. §
15:542, deprives them of equal protection of the laws in
violation of the Fourteenth Amendment of the United
States Constitution;
2.
Defendants must cease and desist from
placing any individuals convicted of Crime Against Nature
by Solicitation under La.R.S. § 14:89(A)(2) or La.R.S. §
14:89.2(A) on the SOCPR;
3. This Judgment and Order does not apply to
La.R.S. § 14:89.2(C);
4. Defendants LeBlanc and Edmonson, in their
official capacities must remove Plaintiffs from the SOCPR
within thirty (30) days of the entry of this Judgment and
Order, following the procedures laid out in paragraph 4
of the Protective Order...;
5. Defendants in their official capacities,
and all persons under the control or supervision of
Defendants, are permanently enjoined from disclosing
Plaintiffs’ prior inclusion on the SOCPR, and must remove
Plaintiffs from any and all municipal, city and state
databases which indicate that Plaintiffs were included on
the SOCPR within thirty (30) days of the entry of this
Judgment and Order;
6. Defendants LeBlanc and Edmonson, in their
official capacities, must notify all...agencies that have
been provided within information about Plaintiffs’
inclusion on the SOCPR...of Plaintiffs’ removal from the
SOCPR and inform such agencies that Plaintiffs are no
longer subject to the Registry Law within thirty (30)
days of the entry of this Judgment and Order;
7.
Defendant Gautreaux, in his official
capacity, must provie Plaintiffs with new driver’s
licenses...without the words “Sex Offender,” at no cost
to Plaintiffs, within thirty (30) days of the entry of
this Judgment and Order;
8. Counsel for Defendants shall provide this
Court and counsel for Plaintiffs with a written report
regarding their implementation of paragraphs 4, 5, 6 and
7 of this Judgment and Order within thirty (30) days of
entry of this Judgment and Order;
9.
This Judgment and Order is entered
contingent upon Defendants’ Stipulation waiving appeal of
this Judgment and Order and this Court’s Order and
Reasons dated March 29, 2012...;
3
10. Costs and fees shall be awarded by the
Court upon application by Plaintiffs....
11. This Court shall retain jurisdiction over
this matter for 90 days after entry of this Judgment and
Order to monitor and enforce compliance with this
Judgment and Order.
In response to the Court’s Judgment, some six weeks later, the
Louisiana legislature enacted into law on May 31, 2012 Act 402 of
the 2012 Legislative Session.2
Act 402, which amends La.R.S. §
15:542 provides:
...
F.
...
(4)(a) Any person who was convicted of crime against
nature (R.S. 14:89) prior to August 15, 2010, may file a
motion in the court of conviction to be relieved of the
sex offender registration and notification requirements
of this Chapter if the offense for which the offender was
convicted would be defined as crime against nature by
solicitation (R.S. 14:89.2) had the offender been
convicted on or after August 15, 2010.
Offenders
convicted of an offense under the laws of another state,
or military, territorial, foreign, tribal, or federal law
may file a motion in the district court of his parish of
residence once the administrative procedures of R.S.
15:542.1.3 have been exhausted and the elements of the
offense of conviction have been found to be equivalent to
the current definition of crime against nature by
solicitation (R.S. 14:89.2).
The provisions of this
Subparagraph shall not apply to persons whose conviction
for crime against nature pursuant to R.S. 14:89 involved
the solicitation of a person under the age of seventeen
and would authorize sentencing of the offender pursuant
to R.S. 14:89.2(B)(3), had the offender been convicted on
or after August 15, 2010.
(b) The motion shall be accompanied by supporting
documentation to establish that the person was convicted
of crime against nature prior to August 15, 2010, and
2
Plaintiffs here do not present any allegations regarding
Act 402; the Court takes judicial notice that the Legislature has
amended the Registry Law.
4
that the offense for which the offender was convicted
would be defined as crime against nature by solicitation
(R.S. 14:89.2) had the offender been convicted on or
after August 15, 2010.
(c) The district attorney, office of state of police, and
the Department of Justice, shall be served with a copy of
the motion.
(d) If the supporting documentation described in
Subparagraph (b) of this Paragraph is provided and meets
the requirements of Subparagraph (4)(b), relief shall be
granted unless the district attorney objects and provides
supporting documentation proving that the offense for
which the person was convicted, and which requires
registration and notification pursuant to the provisions
of this Chapter, involved the solicitation of a person
under the age of seventeen.
(e) If the district attorney proves by clear and
convincing evidence that the conviction for crime against
nature pursuant to R.S. 14:89 involved the solicitation
of a person under the age of seventeen, the court shall
deny the motion to be relieved of the sex offender
registration and notification requirements as provided by
the provisions of this Paragraph.
(f) The provisions of this Paragraph shall not apply to
any person who was convicted of one or more offenses
which otherwise require registration pursuant to the
provisions of this Chapter.
La.R.S. 15:541(F)(4)(2012)(as amended by Act 402).
Accordingly,
under Act 402, a person convicted of Crime Against Nature by
Solicitation may petition a state court for an order removing him
or her from the state registry and relieving that person from any
registration obligations.
This remedy is not self-executing;
rather, it requires the registrant to file papers in a local court
and to prove entitlement to relief, and for the court to grant
relief.
Less
than
one
month
after
5
Act
402
became
law,
four
plaintiffs,3 proceeding pseudonymously, on their behalf and on
behalf of others similarly situated,4 sued the defendants in their
official capacities under 42 U.S.C. § 1983 in this Court.
These
plaintiffs allege that they and the class they seek to represent
are identically situated to the prevailing plaintiffs in Doe I.5 As
in Doe I, plaintiffs here have sued James D. Caldwell, Attorney
General of the State of Louisiana; James M. Leblanc, Secretary,
Louisiana Department of Public Safety and Correction; Michael
Edmondson, Superintendent, Louisiana State Police; Charles Dupuy,
Deputy Superintendent, Louisiana State Police; Eugenie C. Powers,
Director, Division of Probation and Parole, Louisiana Department of
Public Safety and Corrections; Barry Matheny, Assistant Director,
3
Since one of the plaintiffs voluntarily dismissed his
claims on October 29, 2012, there are now three anonymous
plaintiffs proceeding on behalf of a putative class.
4
Plaintiffs estimate approximately 484 individuals
statewide must register as sex offenders solely as a result of a
Crime Against Nature by Solicitation conviction.
They present
class action allegations in which they suggest that class treatment
is warranted pursuant to Federal Rule of Civil Procedure 23(a) and
(b)(2).
5
Plaintiffs allege that “No plaintiff has been convicted
of any other crime that requires registration as a sex offender.”
In fact, each plaintiff alleges that he or she has been convicted
of Crime Against Nature by Solicitation for agreeing to perform
oral sex for money and must register as a sex offender solely as a
result of a Crime Against Nature by Solicitation conviction prior
to August 15, 2011, pursuant to La.R.S. 15:542, et seq.
“The
prostitution statute encompasses all the criminal conduct alleged
to have been committed by plaintiffs[; h]owever,” plaintiffs
allege, “because Plaintiffs were charged with, and convicted of,
Crime Against Nature by Solicitation rather than prostitution, they
are required to register as sex offenders.”
6
Division of Probation and Parole, Louisiana Department of Public
Safety and Corrections; and Stephen Campbell, Commissioner, Office
of Motor Vehicles; each defendant is sued in his or her official
capacity.6
Plaintiffs allege that:
The[se] defendants, by continuing to require plaintiffs
and all other individuals similarly situated to register
as sex offenders, are violating the rights guaranteed to
the named plaintiffs and the plaintiff class under the
Fourteenth Amendment to the United States Constitution.
Plaintiffs seek a judgment declaring that the defendants’
actions violate the rights of individuals required to
register as sex offenders pursuant to a CANS conviction
to the equal protection of the laws and applying this
Court’s prior ruling to the entire class of individuals
whose rights are so violated. Plaintiffs further seek an
injunction compelling defendants to remove plaintiffs and
all other individuals similarly situated from the sex
offender registry and to expunge all records signaling
their past inclusion on the registry.
In the factual allegations framing the plaintiffs’ § 1983 Equal
Protection claim, plaintiffs trace the legislative history of the
Crime Against Nature by Solicitation statute and accompanying
penalties and registration requirement, as well as this Court’s
Order and Reasons and Judgment in Doe I. Plaintiffs also summarize
the sex offender registration requirements that continue to be
imposed upon them as a result of their Crime Against Nature by
Solicitation convictions.7
Plaintiffs allege that defendants’
6
With a few exceptions, these are the same defendants
sued in their official capacities that the Doe I plaintiffs named.
7
Under the registry law, plaintiffs allege, an individual
convicted of Crime Against Nature by Solicitation must: (1) provide
her or his name, residential, work, and school addresses, along
with travel routes and proof of residence; (2) provide a current
7
enforcement
of
the
registry
law
as
to
them
has
no
rational
relationship to a legitimate governmental interest and, therefore,
is in violation of their right to Equal Protection of the laws
under the Fourteenth Amendment to the United States Constitution.
Finally, in their complaint, the plaintiffs request that this
Court:
photograph, fingerprints, palm prints, a DNA sample, telephone
numbers, a description of every vehicle registered to or operated
by the registrant, a copy of the driver’s license, social security
number, date of birth, a description of physical characteristics,
email addresses and other online identifiers, temporary lodging
information regarding any place the registrant plans to stay for
seven or more days; (3) pay an annual registration fee of $60.00 to
every law enforcement agency with which she or he is registered;
failure to do so subjects the registrant to prosecution; (4)
disclose the fact of their sex offender registration to all members
of the communities in which they live, work, study and worship;
school principals must post notices in conspicuous areas in schools
with the registrant’s name, address, and crime of conviction; (5)
notify landlords, the superintendent of any park or playground near
the registrant’s home; the registrant’s name, address, and crime of
conviction must be posted in a conspicuous area in the park or
playground; (6) carry a special identification card issued by the
Department of Public Safety and Corrections that includes the words
“SEX OFFENDER” in bright orange capital letters at all time;
failure to obtain and renew this card annually constitutes a
misdemeanor; (7) obtain a driver’s license or non-driver’s state
identification card that features the words “SEX OFFENDER” in
bright orange capital letters; (8) contact the sheriff’s office or
police department if they change residences or are absent for more
than 30 days; (9) appear in person at the sheriff’s office three
days prior to leaving the registered residence to provide
information regarding temporary lodging information if the
registrant plans to stay somewhere other than his or her registered
address for seven or more days; (10) register, renew, and update
registration and comply with all requirements of the registry law
or face prosecution for failure to do so, which may include
incarceration for up to 20 years at hard labor; criminal liability
attaches irrespective of the reason for failure to comply, such as
inability to pay for registration or delivery of notification
postcards, or homelessness.
8
a.
b.
c.
d.
e.
f.
g.
certify this case as a class action;
declare that La.R.S. § 15:542(A)(1)(a) violates the Equal
Protection Clause of the Fourteenth Amendment insofar as it
requires all individuals convicted of Crime Against Nature by
Solicitation to register as sex offenders;
order defendants to permanently remove the named plaintiffs
and class members from the sex offender registry;
order defendants to expunge all state records that document in
any fashion that plaintiffs were ever registered as sex
offenders;
order defendants to alert all agencies who were provided
information regarding the registration of plaintiffs and all
members of the plaintiff class as sex offenders that this
information is no longer valid;
grant plaintiffs authority to monitor defendants’ compliance
with any injunctive relief ordered by the Court;
award attorneys’ fees and costs.
The defendants now seek dismissal of the plaintiffs’ lawsuit,
invoking the doctrine of sovereign immunity; arguing that the
plaintiffs have failed to adequately allege standing; and, in the
alternative, contending that the plaintiffs fail to state a claim
for relief because they have not pleaded a violation of the
Constitution.
The plaintiffs, on the other hand, now request that
this Court certify a class of persons consisting of:
all persons who were convicted under the Louisiana Crime
Against Nature by Solicitation Statute, La.R.S. §
14:89(A)(2) or 14:89.2(A), for solicitation of oral or
anal sex for compensation prior to August 15, 2011 and,
as a result, have been or will be subject to sex offender
registration requirements under Louisiana’s Registration
of Sex Offender Law, La.R.S. §§ 15:540-15:553.
The plaintiffs also seek summary judgment in their favor. The only
issues that have been adequately briefed to the Court deal with the
motion to dismiss.
9
I.
A.
Motions filed under Rule 12(b)(1) of the Federal Rules of
Civil Procedure allow a party to challenge the Court’s subject
matter jurisdiction.
Fed.R.Civ.P. 12(b)(1).
The defendants, sued
in their official capacities, challenge this Court’s subject matter
jurisdiction
immunity.
over
them,
invoking
the
doctrine
of
sovereign
The burden of proof for a Rule 12(b)(1) motion to
dismiss is on the party asserting jurisdiction.
States, 281 F.3d 158, 161 (5th Cir. 2001).
Ramming v. United
The Court may find a
plausible set of facts to support subject matter jurisdiction by
considering any of the following: “(1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the record;
or (3) the complaint supplemented by undisputed facts plus the
court's resolution of disputed facts.”
Barrera-Montenegro v.
United States, 74 F.3d 657, 659 (5th Cir. 1996).
B.
The defendants also seek dismissal for failure to state a
claim under Rule 12(b)(6).
The standard of review applicable to
motions
Rule
to
dismiss
under
12(b)(1)
is
similar
to
that
applicable to motions to dismiss under Rule 12(b)(6). See Williams
v. Wynne, 533 F.3d 360, 364-65 n.2 (5th Cir. 2008)(observing that
the Rule 12(b)(1) and Rule 12(b)(6) standards are similar, but
noting that applying the Rule 12(b)(1) standard permits the Court
to consider a broader range of materials in resolving the motion).
10
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.
Such a motion is rarely
granted because it is viewed with disfavor.
See Lowrey v. Tex. A
& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
In considering a Rule 12(b)(6)
motion, the Court “accepts ‘all well-pleaded facts as true, viewing
them in the light most favorable to the plaintiff.’” See Martin K.
Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464 (5th
Cir. 2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.
1999)).
But, in deciding whether dismissal is warranted, the
Court will not accept conclusory allegations in the complaint as
true.
Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards,
Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). Indeed, the Court must
first identify allegations that are conclusory and, thus, not
entitled to the assumption of truth.
662, 129 S.Ct. 1937, 1949 (2009).
Ashcroft v. Iqbal, 556 U.S.
A corollary: legal conclusions
“must be supported by factual allegations.” Id. at 1950.
Assuming
the veracity of the well-pleaded factual allegations, the Court
must then determine “whether they plausibly give rise to an
entitlement to relief.” Id.
“‘To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
11
relief that is plausible on its face.’” Gonzalez v. Kay, 577 F.3d
600,
603
(5th
Cir.
2009)(quoting
Iqbal,
(2009))(internal quotation marks omitted).
129
S.Ct.
at
1949
“Factual allegations
must be enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).”
Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quotation marks, citations, and footnote
omitted). “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.”
Iqbal, 129 S. Ct. at 1949
(“The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”). This is a
“context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.” Id.
pleads
facts
that
are
merely
consistent
“Where a complaint
with
a
defendant’s
liability, it stops short of the line between possibility and
plausibility of entitlement to relief.”
U.S.
at
557)(internal
quotations
Id. (citing Twombly, 550
omitted).
“[A]
plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitle[ment] to
relief’”, thus, “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”
Twombly, 550 U.S. at 555 (citation omitted).
In deciding a motion to dismiss, the Court may consider
12
documents that are essentially “part of the pleadings” -- that is,
any documents attached to or incorporated in the plaintiffs’
complaint that are central to the plaintiff’s claim for relief.
Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th
Cir. 2004) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d
496, 498-99 (5th Cir. 2000)).
Also, the Court is permitted to
consider matters of public record and other matters subject to
judicial notice without converting a motion to dismiss into one for
summary judgment.
See United States ex rel. Willard v. Humana
Health Plan of Texas Inc., 336 F.3d 375, 379 (5th Cir. 2003).
II.
Sovereign Immunity
The
defendants
contend
that
sovereign
immunity
bars
the
plaintiffs’ claims; they say that the plaintiffs have failed, in
part,
to
request
relief
that
is
properly
characterized
as
prospective, and, to the extent that they do request prospective
relief, defendants contend that plaintiffs fail to plead an ongoing
violation of federal law such that the Ex parte Young exception to
sovereign immunity is inapplicable.8
The Court disagrees.
“Sovereign immunity is the privilege of the sovereign not to
8
Defendants concede that plaintiffs seek prospective
relief to the extent that they request removal of all class members
from the sex offender registry and notification to agencies that
they are no longer subject to registration or notification
requirements. However, defendants suggest that the plaintiffs fail
to allege an ongoing violation of federal law.
13
be sued without its consent.”
Virginia Office for Protection and
Advocacy v. Stewart, 131 S.Ct. 1632, 1637 (2011)(holding that Ex
parte Young exception to sovereign immunity permitted suit by
independent state agency dedicated to advocacy for persons with
disabilities against certain state officials sued in their official
capacities, alleging violations of federal law by refusing agency
access to records to which it was entitled under federal enabling
statutes).
The Eleventh Amendment bars suits by private citizens
against a state in federal court.
K.P. v. LeBlanc, 627 F.3d 115,
124 (5th Cir. 2010)(citing Hutto v. Finney, 437 U.S. 678, 700
(1978)).
This immunity protects state actors in their official
capacities.
Id.
There is, of course, “an important limit” on the
sovereign immunity doctrine: the iconic Ex parte Young exception
“rests on the premise...that when a federal court commands a state
official to do nothing more than refrain from violating federal
law,
he
is
not
the
State
for
sovereign-immunity
purposes.”
Stewart, 131 S.Ct. at 1638; K.P., 627 F.3d at 124 (Ex parte Young
“is based on the legal fiction that a sovereign state cannot act
unconstitutionally[;
t]hus,
where
a
state
actor
enforces
an
unconstitutional law, he is stripped of his official clothing and
becomes a private person subject to suit.”); see also Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989)(noting
“[o]f course a state official in his or her official capacity, when
sued for injunctive relief, would be a person under § 1983 because
14
‘official-capacity actions for prospective relief are not treated
as actions against the State’”).
Of course, as this Court previously noted, the Ex parte Young
exception applies when the plaintiff demonstrates that the state
officer has “some connection” with the enforcement of the disputed
act.
See Doe v. Jindal, No. 11-388, 2011 WL 3925042, at *5 (E.D.
La. Sept. 7, 2011)(citing K.P., 627 F.3d at 124 (citing Ex parte
Young, 209 U.S. at 160), and noting that the purpose of the
connection requirement is to prevent litigants from misusing the
exception)).
The Fifth Circuit U.S. Court of Appeals instructs:
Ex Parte Young gives some guidance about the required
“connection” between a state actor and an allegedly
unconstitutional act. “The fact that the state officer,
by virtue of his office, has some connection with the
enforcement of the act, is the important and material
fact, and whether it arises out of the general law, or is
specially created by the act itself, is not material so
long as it exists.”
Id. (quoting Ex parte Young, 209 U.S. at 157).
But the defendants
do not suggest that they lack the requisite connection with the
enforcement of the continued registration requirement necessary to
establish the applicability of the Ex parte Young exception to
their sovereign immunity;9 rather, defendants contend only that not
9
Indeed, defendants would stretch to suggest as much,
given that none of these defendants (only Governor Jindal, who was
dismissed by this Court’s Order and Reasons, see Doe v. Jindal, No.
11-388, 2011 WL 39250425 (E.D. La. Sept. 7, 2011) invoked sovereign
immunity in Doe I. Moreover, this Court previously observed that
these defendants have the authority to enforce the registry law in
Doe I: “there seems little doubt that the defendants are
responsible for administering and enforcing the sex registry
15
all the relief the plaintiffs seek is prospective, and they insist
that plaintiffs fail to allege an ongoing violation of federal law
because Act 402 changed everything.
“[I]n determining whether the doctrine of Ex parte Young
avoids an Eleventh Amendment bar to suit, a court need only conduct
a ‘straightforward inquiry into whether [the] complaint alleges an
ongoing
violation
characterized
as
of
federal
law
prospective.’”
and
seeks
Stewart,
131
relief
S.Ct.
properly
at
1639
(quoting Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U.S.
635, 645 (2002)).
The plaintiffs’ lawsuit satisfies this inquiry:
they allege an ongoing violation of federal law pursuant to § 1983
(by alleging that the defendants continue to fail to remedy the
Equal Protection violation conduct focused in Doe I). They do also
seek relief that is indeed prospective in nature: declaratory
relief that their continued subjection to sex offender registration
and notification requirements violates the Equal Protection clause;
that they be removed from the registry; and that the records
law...[t]his places the defendants among those who contribute to
the plaintiffs’ harm.” See Doe I, 851 F. Supp. 2d 995, 1004 (E.D.
La. 2012). Defendants did not appeal this Court’s ruling in Doe I.
It is also noteworthy that, during oral argument, counsel
for defendants conceded that the nine plaintiffs in Doe I were
provided relief in accordance with this Court’s Judgment (including
by being removed from the sex offender registry and issued new
licenses without the “SEX OFFENDER” designation) through
cooperation amongst various defendants in their official
capacities; the same defendants named in this lawsuit.
16
documenting that they are sex offenders be expunged.10
III.
Standing
The
defendants
next
urge
this
Court
to
resolve
another
threshold issue: the Court must be satisfied that each of the three
plaintiffs have standing to challenge the continued registration
requirement
imposed
on
individuals
convicted
of
violating
Louisiana’s Crime Against Nature by Solicitation statute.
Like
they did in Doe I, the defendants vigorously attack the plaintiffs’
standing.
Article III of the Constitution commands that a litigant must
have standing to invoke the power of a federal court.
See Nat’l
Fed’n of the Blind of Texas, Inc. v. Abbott, 647 F.3d 202, 208 (5th
Cir. 2011).
The doctrine of standing requires that the Court
satisfy itself that “the plaintiff has ‘alleged such a personal
stake
in
the
outcome
of
the
controversy’
invocation of federal-court jurisdiction.”
as
See
to
warrant
his
Summers v. Earth
Island Institute, 555 U.S. 488, 493 (2009); see also Doe v.
Beaumont Indep. Sch. Dist., 240 F.3d 462, 466 (5th Cir. 2001)(citing
Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343
10
In fact, the plaintiffs in Doe I sought the same relief
which the defendants did not then argue was retrospective in
nature. Plaintiffs here thus characterize defendants’ sovereign
immunity argument as frivolous. It seems, at best, a submission of
tortured reasoning, and offers an unnaturally restrictive view of
the Court’s decision in Doe I regarding defendants’ conduct when
measured by Equal Protection doctrine.
17
(1975)).
“Standing to sue must be proven, not merely asserted, in
order to provide a concrete case or controversy and to confine the
courts’ rulings within our proper judicial sphere.”
Doe v.
Tangipahoa Parish School Bd., 494 F.3d 494, 499 (5th Cir. 2007)
(noting that “[n]o amount of creative inferences from the pretrial
order or ‘stipulations’ can overcome [the necessary proof in the
record required to show standing]” and that the Board’s failure to
contest standing cannot create jurisdiction because standing is not
subject to waiver by the parties).
To establish standing, the plaintiffs must demonstrate the
“irreducible constitutional minimum of standing”, which is informed
by three elements: (1) that they each personally suffered some
actual
or
threatened
“injury
in
fact”
(2)
that
is
“fairly
traceable” to the challenged action of the defendants; (3) that
likely “would be redressed” by a favorable decision in Court.
See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct.
2130, 119 L.Ed.2d 351 (1992).11 The Court has examined in depth the
charge sheets and court records of each of the three plaintiffs,
which were submitted for this Court’s in camera review: the Court
is satisfied that the plaintiffs have alleged a personal stake in
the outcome of this litigation that is traceable to defendants and
11
The actual injury requirement ensures that issues will
be resolved “not in the rarified atmosphere of a debating society,
but in a concrete factual context.” Valley Forge Christian College
v. Americans United for Separation of Church and State, Inc., 454
U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).
18
redressable by a favorable decision in Court.
There is no dispute,12 and more importantly the record evidence
establishes, that each plaintiff was convicted of one violation of
La.R.S. 14:89(A)(2), which was the prior version of the Crime
Against Nature by Solicitation before it was reenacted as La.R.S.
14:89.2.13
The record confirms that each plaintiff is required to
register as a result of a Crime Against Nature by Solicitation
conviction; the prohibited conduct is also prohibited by the
Prostitution statute, but without any registration requirement; the
record also establishes that at no time were the plaintiffs
required to register as a sex offender as a result of a conviction
pursuant to those provisions where the age of the person solicited
12
By focusing on whether or not the plaintiffs have proven
whether they solicited sex from a minor, the defendants appear to
concede that plaintiffs were each convicted of Crime Against Nature
by Solicitation.
Whether Act 402 places this burden on the
offender, as opposed to the local district attorney, is not an
issue that is decided at this time, although it could be important
in the context of a merits inquiry into the Equal Protection
challenge.
13
La.R.S. 14:89(A)(2) provided:
A. Crime against nature is:
(1) The unnatural carnal copulation by a
human being with another of the same sex or
opposition sex or with an animal....
(2) The solicitation by a human being of
another with the intent to engage in any
unnatural
carnal
copulation
for
compensation....
19
would be relevant:
(C).15
By
showing
La.R.S. 14:89.114 or La.R.S. 14:89.2(B)(3) or
that
they
continue
to
be
subject
to
the
requirements of the registry law -- which imposes such burdens as
paying annual registration fees; requires extensive community
notification obligations; inclusion of the words “SEX OFFENDER”
prominently on their driver’s licenses; and adherence to separate
evacuation protocols in the event of a state emergency -- the
plaintiffs
injury.
have
shown
an
actual,
concrete
and
particularized
They have satisfied the first element of Article III
standing.
Second, the plaintiffs must establish that their injuries are
fairly traceable, or caused by, the defendants’ actions.
As this
Court previously observed, and the defendants did not dispute,
there seems little doubt that the defendants are responsible for
administering and enforcing the sex registry law.
This places the
defendants among those who contribute to the plaintiffs’ claimed
harm.
Because the defendants have the authority to enforce the
14
La.R.S. 14:89.1 singles out aggravated crimes against
nature, including “when the victim is under the age of seventeen
years and the offender is at least three years older than the
victim.”
15
La.R.S. 14:89.2(B)(3) is a subsection of the Crime
Against Nature by Solicitation statute; (B)(3) provides for harsher
penalties when the victim solicited is under the age of 18
((B)(3)(a)), and even harsher penalties when the victim solicited
is under the age of 14 ((B)(3)(b)).
Subsection C requires sex
offender registration for those convicted of Crime Against Nature
by Solicitation of a minor (those convicted under (B)(3)).
20
registry
law,
they
have
significantly
contributed
to
the
plaintiffs’ claim of harm and, thus, the plaintiffs’ injuries are
traceable to the defendants’ conduct.
Third, and finally, the Court considers redressability.
“[A]
plaintiff satisfies the redressability requirement when he shows
that a favorable decision will relieve a discrete injury to
himself.
He need not show that a favorable decision will relieve
his every injury.”
Larson v. Valente, 456 U.S. 228, 243 n.15, 102
S.Ct. 1673, 72 L.Ed.2d 33 (1982).
Here, the sued officials or
their successors have duties related to the enforcement of the
registry law and -- if the Court were to rule in the plaintiffs’
favor -- the plaintiffs would be relieved of their obligation to
register as sex offenders.
Therefore, an outcome in plaintiffs’
favor would redress the plaintiffs’ present and future injuries.
Because the plaintiffs have standing, the Court turns to the
defendants’
challenge
to
the
technical
sufficiency
of
the
plaintiffs’ civil rights claim.16
IV.
These parties are by now be familiar with the applicable
16
Like in Doe I, in contesting the plaintiffs’ standing,
the defendants insist that the Court should examine the underlying
circumstances of the plaintiffs’ convictions. Again, they fail to
persuade the Court as to why this is relevant to the plaintiffs’
standing: a Crime Against Nature by Solicitation conviction is the
central consideration to finding an actual injury because that is
what triggers the continuing registration requirement and the risk
of an Equal Protection taint.
21
substantive legal and constitutional requirements, as this Court
has spoken to them in Doe I emphatically.
See Doe v. Jindal, 851
F. Supp. 2d 995 (E.D. La. 2012).
In considering now whether these plaintiffs’ allegations
themselves
are
at
this
stage
sufficient
to
withstand
the
defendants’ Rule 12(b)(6) challenge, the Court reiterates the
applicable legal principles.
A.
Section 1983 imposes civil liability on:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State..., subjects,
or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws....
42 U.S.C. § 1983.
To allege a § 1983 violation, a plaintiff must
state a violation of a right secured by the Constitution or laws of
the United States and state that the deprivation was committed by
a person acting under color of state law.
Anderson v. Law Firm of
Shorty, Dooley & Hall, 393 Fed.Appx. 214 (5th Cir. Aug. 26, 2010
(citing Randolph v. Cervantes, 130 F.3d 727, 730 (5th Cir. 1997)).
Because § 1983 imposes liability only for violations of rights
protected by federal laws and the Constitution, “[t]he first
inquiry in any § 1983 suit...is whether the plaintiff has been
deprived of a right ‘secured by the Constitution and laws.’” Baker
v. McCollan, 443 U.S. 137, 140 (1970).
Here, the plaintiffs allege that they are being denied Equal
22
Protection under the Fourteenth Amendment because they continue to
be subject to sex offender registration pursuant to La.R.S. §
15:542(A)(1)(a). The plaintiffs claim that they are each registered
or registrable solely because they were convicted of La.R.S. §
14:89(A)(2)(prior to August 15, 2010) or La.R.S. § 14:89.2 (after
August
15,
2010)
--
Solicitation statute.
Louisiana’s
Crimes
Against
Nature
by
In the first generation of this case, this
Court determined that because Louisiana’s Prostitution statute and
Crime Against Nature by Solicitation statute punish identical
conduct, requiring one group of offenders to register as sex
offenders, but not the other, violates the Fourteenth Amendment’s
guarantee of Equal Protection under the laws.
F. Supp. 2d 995 (E.D. La. 2012).
Doe v. Jindal, 851
Plaintiffs here complain that,
notwithstanding Act 402 or this Court’s declaratory judgment -that the application of the Registry Law to those convicted of
Crime Against Nature by Solicitation...and their inclusion on the
State Sex Offender & Child Predator Registry pursuant to La.R.S. §
15:542, deprives them of Equal Protection of the laws in violation
of the Fourteenth Amendment to the United States Constitution -they continue to be subject to the sex offender registration
requirement, in violation of their right to Equal Protection, given
that identically situated individuals convicted of solicitation of
Prostitution are not required to register.
23
B.
The Equal Protection Clause of the Fourteenth Amendment of the
Constitution commands that no State shall “deny to any person
within its jurisdiction the equal protection of the laws.”
Const.
Amend.
XIV,
§
1;
Vacco
v.
Quill,
521
U.S.
U.S.
793,
799
(1997)(citations omitted)(holding that New York’s prohibition on
assisting suicide did not violate Equal Protection Clause of the
Fourteenth
Amendment).
The
Constitutional
Protection under law is a common sense one.
lesson
of
Equal
This is “essentially
a direction that all persons similarly situated should be treated
alike.”
City of Cleburne, Texas v. Cleburne Living Center, 473
U.S. 432, 440 (1985)(citation omitted);
Houston, 214 F.3d
John Corp. v. City of
573, 577 (5th Cir. 2000)(citation omitted)(“The
Equal Protection Clause protects individuals from governmental
action
that
works
differently.”);
to
treat
similarly
situated
individuals
Stoneburner v. Secretary of the Army, 152 F.3d
485, 491 (5th Cir. 1998)(citation omitted)(“The Equal Protection
Clause...essentially directs that all persons similarly situated be
treated alike.”). However, “if a law neither burdens a fundamental
right nor targets a suspect class,” the Supreme Court has observed,
“the legislative classification [will survive] so long as it bears
a rational relation to some legitimate end.”
Romer v. Evans, 517
U.S. 620, 631 (1993)(citing Heller v. Doe, 509 U.S. 312, 319-20
(1993)); City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S.
24
432, 440 (1985)(“The general rule is that legislation is presumed
to be valid and will be sustained if the classification drawn by
the
statute
is
rationally
related
to
a
legitimate
state
interest.”).17
When conducting the pivotal rational basis review, the U.S.
Supreme
Court
has
observed
that
“we
will
not
overturn
such
[government action] unless the varying treatment of different
groups or persons is so unrelated to the achievement of any
combination of legitimate purposes that we can only conclude that
the [government’s] actions were irrational.”
Kimel v. Florida Bd.
of Regents, 528 U.S. 62, 84 (2000)(citing Vance v. Bradley, 440
U.S. 93, 97 (1979)). Where, as here, the challenged classification
is
presumptively
rational,
“the
individual
challenging
its
constitutionality bears the burden of proving that the ‘facts on
which the classification is apparently based could not reasonably
be conceived to be true by the governmental decisionmaker.’” Id.
(citing Bradley, 440 U.S. at 111).
To state at this juncture an Equal Protection violation, and
thereby satisfy their burden of alleging a Constitutional violation
sufficient to warrant § 1983 relief, the plaintiffs must allege
17
City of Cleburne, Texas v. Cleburne Living Ctr., 473
U.S. 432, 439-40 (1985)(“Section 5 of the Amendment empowers
Congress to enforce this mandate, but absent controlling
congressional direction, the courts have themselves devised
standards for determining the validity of state legislation or
other official action that is challenged as denying equal
protection.”).
25
that they have been purposefully treated differently from others
similarly situated, and that there is no rational basis for the
difference in treatment.
Stoneburner, 152 F.3d at 490 (citations
omitted). The plaintiffs contend that they have stated a violation
of the Equal Protection Clause for the same reason that the
plaintiffs in Doe I succeeded in their claim: they allege that,
because they were convicted of Crime Against Nature by Solicitation
before August 15, 2011, even though their conduct also fell within
the scope of the statute prohibiting solicitation of Prostitution,
they have, without any rational basis, been subjected to mandatory
sex offender registration while identically situated individuals
convicted under the solicitation provision of the Prostitution
statute are not required to register as sex offenders.
At this
stage of the litigation, the Court must accept the plaintiffs’
well-pleaded facts as true and in the light most favorable to the
plaintiffs; because the test is simply whether the plaintiffs have
stated a claim for relief that has facial plausibility, the Court
finds that the plaintiffs’ allegations are technically sufficient
to withstand dismissal.
The defendants contend that Act 402 substantively changed the
law this Court declared unconstitutional in Doe I by providing a
remedy in state court to those who prove they are only on the
registry for a Crime Against Nature by Solicitation conviction
(and, defendants contend, that they prove they did not solicit sex
26
from a minor).18
Thus, the defendants maintain that the plaintiffs
cannot succeed on their § 1983 Equal Protection claim.
It is
noteworthy (and puzzling) that the plaintiffs’ complaint, which
post-dates Act 402, makes no reference to Act 402, and it is
unclear whether they directly (which they deny) or indirectly
attack Act 402.
That aside, however, the defendants have not
carried their burden at this stage to show that the plaintiffs have
failed to state a plausible claim for relief, particularly in light
of the Court’s repudiation of defendants’ conjecture in Doe I.19
18
Again, the Court stresses that the Court does not reach
the question of who actually has the burden to satisfy Act 402's
requirement regarding persons under 17, the registrant or the local
district attorney. That issue of statutory interpretation could be
rather important when taking account of whether Act 402, indirectly
or directly, adds an unreasonable burden to plaintiffs’ ability to
be removed from the registry.
19
As this Court previously wrote:
The defendants also urge that the plaintiffs
are not similarly situated to prostitutes
because they have submitted no evidence
regarding the underlying circumstances of
their convictions. That argument conveniently
ignores that the straightforward comparison
for the plaintiffs, for Equal Protection
purposes,
is
with
those
convicted
of
solicitation of Prostitution.
...
[T]he defendants [also] assert that requiring
sex
offender
registration
protects
the
public’s safety, health, and welfare.
They
insist that conviction is an imperfect
indicator of the underlying charge and,
because Crime Against Nature by Solicitation
is a lesser offense to which other registrable
offenses can be pleaded down to, it is
possible that prosecutors pleaded down “more
27
The
better
time
to
consider
whether
the
plaintiffs’
charges
directly, or indirectly, put Act 402 at risk, or whether that’s
even the target of this lawsuit, is when that issue has been
developed
by
submission
of
briefing
in
connection
with
the
plaintiffs’ motions for summary judgment or class certification.20
heinous”
solicitation
charges
(such
as
solicitation of persons under 17...).
The
Court has no duty to indulge such patent
hypothetical speculation; no suggestion exists
in the record that the State legislature’s
purpose for requiring those convicted of Crime
Against Nature by Solicitation to register as
sex offenders was anchored to a legislative
desire that prosecutors plead down other
registrable offenses....
Doe v. Jindal, 851 F. Supp. 2d 995, 1008-09 (E.D. La. 2012).
20
The defendants contend that La.R.S. 15:542, as amended
by Act 402, is the reason why the plaintiffs and putative class
members are still on the registry. But the plaintiffs urge the
Court to reject defendants’ semantics, and insist that Act 402, in
fact, does not eliminate the offending classification declared
unconstitutional in Doe I because Act 402 is prospective and left
intact the imposition of a sex offender registration requirement on
those convicted of Crime Against Nature by Solicitation prior to
August 15, 2011, but not those convicted under the identical
solicitation provision of the Prostitution statute.
Plaintiffs
insist that the defendants are bound by the doctrines of stare
decisis and non-mutual offensive collateral estoppel.
Another
argument advanced by plaintiffs, that is best left to a meritsinquiry, is whether Act 402 improperly imposes an exhaustion of
state law requirement. See, e.g., Patsy v. Bd. of Regents, 457 U.S.
496, 501 (1982); Monroe v. Pape, 365 U.S. 167, 183 (1961),
overruled on other grounds by Monell v. Dep’t of Social Services of
City of New York, 436 U.S. 658 (1978)).
The Court urges the
parties to attempt to resolve their conceptual dispute and perhaps
explore practical solutions for removing individuals from the
registry in accordance with Doe I’s declaratory judgment,
notwithstanding the State’s apparent petulance, as seemed apparent
to the Court during oral argument; if one believes that undisguised
sarcasm is a suitable replacement for effective and scholarly
28
Accordingly, IT IS ORDERED: that the defendants’ motion to
dismiss is DENIED.
IT IS FURTHER ORDERED: that the hearing on the
plaintiffs’ motion for summary judgment and motion for class
certification is hereby continued, to be reset.
New Orleans, Louisiana, December 20, 2012
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
advocacy, then this Court’s advice is that one should aspire to a
different job description.
The Court also suggests that the
plaintiffs consider the wisdom of omitting any reference to Act 402
in their complaint. Simply stated, the submissions to the Court
regarding summary relief and class certification do not adequately
focus the issues. There might be differences between this case and
Doe I. But, then again, there might not be.
29
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