Corzine v. Laxalt et al

Filing 46

ORDER that Defendants Motion to Dismiss ECF No. 10 is granted in part and denied in part;Defendants Laxalt, Conmay, and Lomprey are dismissed; Counts I, II, III, and IV are dismissed without prejudice and with leave to amend; some Counts d ismissed with prejudice; Corzines Motion for preliminary Injunction ECF No. 26 is granted in part and denied in part; Corzines Motion is granted in the following manner: Defendants Wright and Wood are ordered to coordinate with the Californ ia authorities responsible for administering the Interstate Compact in order to make clear that California cannot treat Corzines sentence of lifetime supervision as parole, and may instead impose the restrictions it sees fit based on Corzines actual lifetime supervision conditions and the Interstate Compact; if Corzine chooses to amend his complaint to cure the deficiencies, he must file an amended complaint by 08/24/2017. See Order for further details and information. Signed by Judge Miranda M. Du on 07/25/2017. (Copies have been distributed pursuant to the NEF - KW)

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1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 *** 6 MATTHEW CORZINE, 7 Plaintiff, v. 8 9 10 Case No. 3:17-cv-00052-MMD-WGC ORDER ADAM LAXALT; JAMES WRIGHT; NATALIE WOOD; PATRICK CONMAY; AND K. LOMPREY, (Def.’s Motion to Dismiss – ECF No. 10; Plaintiff’s Motion for a Preliminary Injunction -- ECF No. 26) Defendants. 11 12 13 I. SUMMARY 14 Plaintiff Matthew Corzine (“Corzine”) is suing various Nevada state officials in their 15 official capacities, alleging that aspects of Nevada’s program of lifetime supervision violate 16 the state and federal constitutions. Before the Court are Defendant’s Motion to Dismiss 17 (ECF No. 10) and Corzine’s Motion for a Preliminary Injunction (ECF No. 26.) The Court 18 has reviewed the parties’ respective responses and replies. (ECF Nos. 25, 29, 30, 34.) 19 The Court also granted Corzine’s Emergency Motion Seeking an Expedited Hearing and 20 Ruling (ECF No. 35) and held a hearing on July 11, 2017 (ECF No. 40). After the hearing, 21 the Court directed the parties to file supplemental briefing on two issues. (ECF No. 42.) 22 The Court has reviewed the supplemental briefs. (ECF Nos. 43, 44.) For the reasons 23 discussed below, Defendants’ Motion to Dismiss is granted in part and denied in part, and 24 Corzine’s Motion for a Preliminary Injunction is granted in part and denied in part. 25 II. BACKGROUND Corzine’s Sentence 26 A. 27 The parties, for the most part, agree on the underlying facts. Corzine was charged 28 with six counts of sexual assault on July 22, 2005, for crimes he committed in 2004. He 1 pled guilty to five counts of attempted sexual assault and was sentenced to 36 to 120 2 months on one count and 24 to 120 months on each remaining count. (ECF No. 5 at 11.) 3 The sentencing court also imposed a special sentence of lifetime supervision “to 4 commence upon release from any term of imprisonment, probation or parole” and ordered 5 Corzine to register as a sex offender in accordance with NRS § 179D.460 within 48 hours 6 of release from custody. (ECF No. 10-1 at 2-3.) 7 Corzine was paroled on November 28, 2016, after serving 11 years in prison. (ECF 8 No 25-1 at 4.) Before he was released, Corzine transferred his parole to California through 9 the Interstate Compact for the Supervision of Adult Offenders (“Interstate Compact”) – a 10 mechanism through which states “manage the movement between states of adults placed 11 under community supervision and released to the community under the jurisdiction of 12 courts, paroling authorities, corrections or other criminal justice agencies.” NRS § 213.215. 13 Corzine completed his parole in California, where he currently resides, in May 2017. (Id. 14 at 5.) 15 On May 13, 2017, he appeared before the Nevada Board of Parole Commissioners 16 (“Parole Board”), the body that sets conditions of lifetime supervision. The Parole Board 17 imposed a monthly fee of $30, which was subject to a waiver for economic hardship, and 18 three residency restrictions: (1) Corzine may only reside at a residence if it has been 19 approved by his parole and probation officers; (2) he may not reside at a residence that 20 houses three or more persons that have been released from prison unless it is a licensed 21 transitional living facility; and (3) he must keep his parole and probation officers informed 22 of his current address.1 (ECF No. 29-1.) 23 However, because Corzine is living in California, and, he alleges, because of a 24 legislative change made by Nevada in 2005 (discussed further below), Corzine is not 25 simply subject to the lifetime supervision requirements imposed by the Parole Board. 26 /// 27 28 1The Parole Board also included a provision requiring Corzine to be electronically monitored, but that condition was removed in an updated order a few weeks later. (Compare ECF No. 25-3 with ECF No. 29-1.) 2 1 Instead, he is subjected to a long list of parole restrictions imposed by the State of 2 California. (ECF No. 26-12.) California’s parole supervision includes elements like a GPS 3 ankle bracelet, warrantless searches, and polygraph examinations. (ECF No. 26-1 at 7.) 4 Corzine must comply with these conditions as long as he resides in California. Many of 5 these restrictions do not appear in the list of conditions the Nevada Parole Board may 6 impose under NRS § 213.1243. 7 B. 8 In 1995, Nevada began imposing a special sentence of lifetime supervision on 9 certain offenders. NRS § 176.0931 instructs courts to include lifetime supervision in the 10 sentence of a defendant convicted of a sexual offense. Lifetime supervision begins after 11 an offender is released from probation, imprisonment, or parole. It is governed by NRS § 12 213.1243, which in 2004, when Corzine committed the relevant crimes, provided: 13 Lifetime Supervision 19 1. The Board shall establish by regulation a program of lifetime supervision of sex offenders to commence after any period of probation or any term of imprisonment and any period of release on parole. The program must provide for the lifetime supervision of sex offenders by parole and probation officers. 2. Lifetime supervision shall be deemed a form of parole for the limited purposes of the applicability of the provisions of NRS 213.1076, subsection 9 of NRS 213.1095, NRS 213.1096 and subsection 2 of NRS 213.110. 3. A person who violates a condition imposed on him pursuant to the program of lifetime supervision is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, and may be further punished by a fine of not more than $5,000. 20 Thus, the statute did not list any specific conditions of supervision. Rather, it delegated 21 the authority to design the lifetime supervision program to the Parole Board. At the time, 22 the Parole Board required offenders under lifetime supervision to, among other things, 23 obtain permission before leaving the state, obtain a supervising officer’s approval for the 24 location of the offender’s residence, submit to polygraph examinations, and submit to 25 warrantless searches. (See ECF No. 44-1; Palmer v. State, 59 P.3d 1192, 1196 (Nev. 26 2002) (listing common restrictions).) 27 /// 28 /// 14 15 16 17 18 3 1 In 2007, the statute was amended by Senate Bill 354 (“SB 354”) and Senate Bill 2 471 (“SB 471”) to include a number of specific conditions that Courts “shall” impose, 3 including the following condition, which was eventually applied to Corzine: 4 3. Except as otherwise provided in subsection 4, the Board shall require as a condition of lifetime supervision that the sex offender reside at a location only if: (a) The residence has been approved by the parole and probation officer assigned to the person. (b) If the residence is a facility that houses more than three persons who have been released from prison, the facility is a facility for transitional living for released offenders that is licensed pursuant to chapter 449 of NRS. (c) The person keeps the parole and probation officer informed of his current address. 5 6 7 8 9 10 2007 Nevada Laws Ch. 418 (S.B. 354); 2007 Nevada Laws Ch. 528 (S.B. 471). 11 In 2016, the Nevada Supreme Court ruled that the Parole Board could not impose 12 conditions beyond those listed in NRS § 213.1243. McNeill v. State, 375 P.3d 1022, 1025 13 (Nev. 2016). 14 C. 15 In 2001, Nevada passed legislation adopting the Interstate Compact, which in turn 16 became active in June of 2002, after it had been accepted by 35 states. See 2001 Nevada 17 Laws Ch. 460 (S.B. 194).2 The Interstate Compact is an agreement among states to work 18 together to supervise offenders who are “under the jurisdiction of courts, paroling 19 authorities, corrections or other criminal justice agencies.” NRS § 2113.215. It applies, for 20 example, if an offender from Nevada would like to move to California to live with family 21 while on parole. The state receiving an offender is required to supervise him or her 22 “consistent with the supervision of other similar offenders sentenced in the receiving state, 23 including the use of incentives, corrective actions, graduated responses, and other 24 /// 25 /// 26 /// 27 28 The Interstate Compact 2See also INTERSTATE COMMISSION FOR ADULT OFFENDER SUPERVISION, ICAOS BENCH BOOK FOR JUDGES AND COURT PERSONNEL 38 (2017). 4 1 supervision techniques.” Interstate Compact Rule 4.101.3 Furthermore, Rule 4.103 2 provides: 3 (a) At the time of acceptance or during the term of supervision, the receiving state may impose a condition on an offender if that condition would have been imposed on an offender sentenced in the receiving state. 4 5 (b) A receiving state shall notify a sending state that it intends to impose, or has imposed, a condition on the offender. 6 (c) A sending state shall inform the receiving state of any conditions to which the offender is subject at the time the request for transfer is made or at any time thereafter. 7 8 (d) A receiving state that is unable to enforce a condition imposed in the sending state shall notify the sending state of its inability to enforce a condition at the time of request for transfer of supervision is made.4 9 10 11 INTERSTATE COMMISSION FOR ADULT OFFENDER SUPERVISION, ICAOS RULES 4.103 (2017). 12 In 2005, to ensure that other states would be willing to accept Nevada offenders 13 under the Interstate Compact, the legislature amended NRS § 213.1243 and mandated 14 that lifetime supervision would be deemed a form of parole for “[t]he purposes of the 15 Interstate Compact for Adult Offender Supervision ratified, enacted and entered into by 16 the State of Nevada pursuant to NRS § 213.215.” Senate Bill 341 (“SB 341”). 17 Corzine argues, among other things, that changing the definition of lifetime 18 supervision to parole for the purposes of the Interstate Compact amounts to a retroactive 19 increase in his sentence, and therefore a violation of the Ex Post Facto Clause of the 20 United States Constitution. He further argues that the Nevada Supreme Court’s decision 21 in McNeill essentially renders lifetime supervision before the legislature added specific 22 conditions to NRS § 213.1243 unenforceable. 23 III. MOTION TO DISMISS 24 Defendants ask the Court to dismiss Corzine’s Complaint in its entirety. They argue 25 that Corzine has failed to identify any state action subject to suit under 18 U.S.C. § 1983, 26 /// 27 28 3INTERSTATE COMMISSION FOR ADULT OFFENDER SUPERVISION, ICAOS RULES 40 (2017). 4Id. at 42. 5 1 that he has failed to name the proper defendants, and that his claims fail as a matter of 2 law. 3 A. Legal Standard 4 A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which 5 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a 6 short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 7 R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 8 does not require detailed factual allegations, it demands more than “labels and 9 conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. 10 Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555.) “Factual allegations 11 must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to 12 survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a 13 claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal citation omitted). 14 In Iqbal, the Supreme Court clarified the two-step approach district courts are to 15 apply when considering motions to dismiss. First, a district court must accept as true all 16 well-pled factual allegations in the complaint; however, legal conclusions are not entitled 17 to the assumption of truth. Id. at 678-79. Mere recitals of the elements of a cause of action, 18 supported only by conclusory statements, do not suffice. Id. at 678. Second, a district court 19 must consider whether the factual allegations in the complaint allege a plausible claim for 20 relief. Id. at 679. A claim is facially plausible when the plaintiff’s complaint alleges facts 21 that allow a court to draw a reasonable inference that the defendant is liable for the alleged 22 misconduct. Id. at 678. Where the complaint does not permit the court to infer more than 23 the mere possibility of misconduct, the complaint has “alleged—but it has not show[n]— 24 that the pleader is entitled to relief.” Id. at 679 (internal quotation marks omitted). When 25 the claims in a complaint have not crossed the line from conceivable to plausible, the 26 complaint must be dismissed. Twombly, 550 U.S. at 570. 27 A complaint must contain either direct or inferential allegations concerning “all the 28 material elements necessary to sustain recovery under some viable legal theory.” 6 1 Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 2 1106 (7th Cir. 1989) (emphasis in original)). 3 Pro se complaints, like Corzine’s, are held to less stringent standards than 4 pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). This is 5 particularly true when a pro se litigant is alleging civil rights violations. See Karim– 6 Panahi v. Los Angeles Police Dep't, 839F.2d 621, 623 (9th Cir.1988) 7 cases where the plaintiff appears pro se, the court must construe the pleadings liberally 8 and must afford plaintiff the benefit of any doubt.”). 9 10 B. (“In civil rights Discussion 1. Lifetime Supervision Conditions 11 As an initial matter, because Corzine filed suit before the Parole Board actually 12 imposed any conditions, some of his allegations are no longer relevant. To the extent 13 possible, the Court will consider Corzine’s claims in light of the conditions the Parole Board 14 actually imposed, namely a monthly fee and requirement that his residence be approved 15 by his supervising officer. a. 16 Procedural Due Process 17 Corzine alleges that the 1997 version of NRS § 213.1243 is void for vagueness 18 because it creates a punishment for violating any conditions imposed by the Parole Board 19 but does not (or did not at the time) spell out any specific conditions. (ECF No. 5 at 4.) 20 This allegation misstates how the statute actually functions. Corzine could not have been 21 punished for violating any conditions until after they had actually been imposed, thereby 22 giving him sufficient notice of the prohibited conduct. 23 Corzine also alleges that NRS § 213.1243 does not provide an adequate hearing 24 before the Parole Board. (Id.) Defendants correctly argue that the Parole Board itself is 25 the proper defendant if Corzine wants to challenge the specific provisions of the Parole 26 Board’s hearing and appeal process. The Court agrees and grants Defendants’ Motion 27 with respect to Count I. The claim is dismissed without prejudice and Corzine is granted 28 leave to amend. 7 1 b. Substantive Due Process 2 In his Complaint, Corzine simply alleges that the conditions “that will be imposed 3 by the Board under NRS 213.1243 will infringe on Mr. Corzine’s fundamental rights to 4 travel and live with his family.” (ECF No. 5 at 12.) Because the Parole Board had not 5 actually imposed any conditions when Corzine filed his Complaint, he does not allege facts 6 related to any specific condition, or explain how any condition actually hinders the rights 7 he identifies. Even if the Court considers the conditions actually imposed, Corzine’s claim 8 is simply a legal conclusion and does not meet the Twombly standards for particularity. 9 Therefore, Defendants’ Motion is granted in regard to Count II, which will be dismissed 10 without prejudice and with leave to amend. 11 c. First Amendment 12 Once again, Corzine’s First Amendment claim was premised on hypothetical 13 conditions that could have been imposed. It is not immediately apparent how the actual 14 conditions imposed could support a First Amendment challenge. Furthermore, Corzine’s 15 allegations that any restrictions “will prohibit [him] from associating with certain people in 16 certain areas” is once again simply a legal conclusion and insufficient under Twombly. 17 (ECF No. 5 at 13.) Corzine’s First Amendment claim (Count III) is therefore also dismissed 18 without prejudice and with leave to amend. 19 d. Equal Protection Clause 20 Corzine alleges that Nevada treats offenders like him differently than offenders who 21 were sentenced before the enactment of lifetime supervision in 1995, and that this practice 22 violates the Equal Protection Clause of the Fourteenth Amendment. (ECF No. 5 at 13-15.) 23 Corzine’s allegations do not support such a claim. The Equal Protection Clause is not 24 implicated simply because a law affects two groups differently. As long as the distinction 25 has a rational basis (or in the case of certain categories of citizens, passes more 26 demanding standards), there is “no constitutional concern.” Pers. Adm'r of Massachusetts 27 v. Feeney, 442 U.S. 256, 271–72 (1979). Corzine has not alleged facts showing Nevada 28 lacks a rational basis for its actions, or that he is the member of a protected group, which 8 1 would require Nevada to show a stronger justification for its policies. Therefore, his Equal 2 Protection Clause claim (Count IV) is also dismissed without prejudice and with leave to 3 amend. 4 e. Eighth Amendment 5 Corzine alleges that the punishment for violating a condition of lifetime supervision 6 — up to 6 years’ imprisonment and a $5,000 fine — is so disproportionate to the “actual 7 condition violated” that it violates the Eight Amendment’s prohibition on cruel and unusual 8 punishment. (ECF No. 5 at 14-15.) The Eighth Amendment applies to punishments that 9 are grossly disproportionate to the crime being punished. Harris v. Wright, 93 F.3d 581, 10 583 (9th Cir. 1996) (citing Harmelin v. Michigan, 501 U.S. 858, 113 (1991) (Kennedy, J. 11 concurring)). This legal theory, however, is “strictly circumscribed” and only applicable 12 where a “threshold comparison of the crime committed and the sentence imposed leads 13 to an inference of gross disproportionality.” Id. This is not such a case. As Defendants 14 point out, the penalty Corzine challenges is comparable to the penalty for failing to register 15 as a sex offender in Nevada and similar to analogous statutes in states from Alaska to 16 Tennessee. (ECF No. 10 at 18.) Corzine cannot make a threshold showing that the penalty 17 for violating a condition of lifetime supervision supports an inference of gross 18 disproportionality. Therefore, his Eighth Amendment claim (Count V) is legally foreclosed 19 and will be dismissed with prejudice. 20 f. 21 Double Jeopardy/Ex Post Facto/Separation of Powers/Bill of Attainder 22 Corzine alleges that the 2007 amendments to NRS § 213.1243 amount to a 23 retroactive increase of his sentence in violation of the Double Jeopardy Clause of the Fifth 24 Amendment and the Ex Post Facto Clause. (ECF No. 5 at 15-16.) Because the 25 amendments, and indeed the conditions eventually imposed on Corzine, are all conditions 26 that were previously imposed by the Parole Board (see ECF No. 44-1), Corzine’s claim 27 depends on the premise that NRS § 213.1243 cannot be applied to him because the 28 Nevada Supreme Court’s decision in McNeill retroactively rendered it unenforceable 9 1 (which is also the basis for his separation of powers claim — Count IX — and his bill of 2 attainder claim — Count X). In other words, Corzine argues that McNeill created a 3 sentencing windfall for offenders like him, who committed their crimes before the statute 4 contained any enumerated conditions. This argument is ultimately unpersuasive because 5 the only conditions applied to Corzine are conditions later enacted by the legislature. 6 Therefore, Corzine is not subject to any conditions suffering the statutory and 7 constitutional infirmities identified in McNeill. Corzine is proffering two incompatible 8 arguments at once. He asks the Court to hold both that the legislative amendments adding 9 specific provisions are impermissible ex post facto punishments, and that the statute, as 10 applied to him, impermissibly bypasses the legislature, nullifying any conditions. In this 11 case, neither argument is true. The amendments at issue cure the very problem Corzine 12 argues invalidates the 1997 version of the statute, and the conditions imposed upon him 13 by the Parole Board do not retroactively increase his punishment. 14 Defendants’ Motion is granted with respect to these claims, and Corzine’s ex post 15 facto, double jeopardy, separation of powers, and bill of attainder claims (Counts VI, VII, 16 IX, and X) are dismissed with prejudice as they relate to the 2007 amendments to NRS § 17 213.1243. g. 18 Contracts Clause 19 Corzine alleges that the 2007 legislative changes, which occurred after he pled 20 guilty, imposed conditions inconsistent with his plea agreement, and therefore interfered 21 with the agreement in violation of the Contracts Clause of the Constitution. (ECF No. 5 at 22 16-17.) Once again, this line of argument is incorrect because the only conditions imposed 23 upon Corzine are conditions which the Parole Board also imposed when Corzine accepted 24 his plea. Defendants’ Motion is granted with respect to Corzine’s Contracts Clause claim 25 (Count VIII), and the claim is dismissed with prejudice. 26 /// 27 /// 28 /// 10 1 2. 2 Change from Lifetime Supervision to Parole for the Purposes of the Interstate Compact 3 Corzine’s final argument is that the state violated the ex post facto clause by 4 treating his special sentence of lifetime supervision as parole under the Interstate Compact 5 (Count VII). (ECF No. 5 at 3, 6, 11-12, 16.) The Court finds that Corzine has alleged facts 6 which, if true, support a plausible claim that the Nevada legislature enacted a change that 7 had a punitive effect and retroactively increased the punishment for his crime, which may 8 violate the ex post facto clause of the United States Constitution. 9 Defendants argue that Corzine has failed to name the correct defendants for any 10 of his claims. (ECF No. 10 at 9-10.) The Court disagrees. Corzine alleges that Nevada’s 11 decision to define lifetime supervision as “parole” for purposes of the Interstate Compact 12 means that he must face demonstrably harsher penalties for his crime because California 13 now treats him as a parolee rather than an offender on lifetime supervision. He is suing 14 James Wright, Director of the Nevada Department of Public Safety, and Natalie Wood, 15 Chief of the Division of Parole and Probation, in their respective official capacities. (ECF 16 No. 5 at 2.) The Division of Parole and Probation is a division of the Department of Public 17 Safety. NRS § 213.1071. The Division of Parole and Probation houses an Interstate 18 Compact Unit, which is tasked with facilitating “the transfer of offender supervision into 19 and out of the state of Nevada, and is responsible for ensuring that the federal compact 20 rules are followed.”5 The responsibility for moving offenders from Nevada to other states 21 under the Interstate Compact falls squarely within the responsibilities of these two 22 defendants, consequently they are proper parties for Corzine’s request for injunctive relief 23 as it relates to Nevada’s change to the treatment of lifetime supervision and the Interstate 24 Compact. 25 /// 26 /// 27 28 5Federal Interstate Compact, NEVADA DEPARTMENT OF PUBLIC SAFETY: PAROLE AND PROBATION, (last visited July, 21 2017). 11 For these reasons, Defendants’ Motion is denied with respect to Corzine’s ex post 1 2 facto claim (Count VII) against Wright and Wood. 3 C. Summary 4 Defendants’ Motion to Dismiss (ECF No. 10) is granted on all counts except 5 Corzine’s ex post facto claims against Wright and Wood (Count VII), in their official 6 capacities, relating to the 2005 amendments defining lifetime supervision as a form of 7 parole for the Interstate Compact. Defendants Laxalt, Conmay, and Lomprey are 8 dismissed from this action. 9 Corzine’s procedural due process claim (Count I), substantive due process claim 10 (Count II), First Amendment claim (Count III). and Equal Protection Clause claim (Count 11 IV) are dismissed without prejudice and with leave amend. If Corzine chooses to amend 12 any of these claims, he is advised that the Parole Board is the proper defendant for the 13 relief he seeks. 14 Corzine’s Eight Amendment claim (Count V), double jeopardy claim (Count VI), the 15 portion of his ex post facto claim relating to the lifetime supervision amendments (Count 16 VII), Contracts Clause claim (Count VIII), separation of powers claim (Count IX), and bill 17 of attainder claim (Count X), are dismissed with prejudice. 18 IV. MOTION FOR PRELIMINARY INJUNCTION 19 The Court will evaluate Corzine’s Motion based on his sole remaining claim — that 20 defining lifetime supervision under NRS § 213.1243 as parole for the purposes of the 21 Interstate Compact impermissibly increases his sentence in violation of the Ex Post Facto 22 Clause of the United States Constitution. 23 A. Legal Standard 24 “‘An injunction is a matter of equitable discretion’ and is ‘an extraordinary remedy 25 that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.’” 26 Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010) (quoting Winter v. Nat. Res. 27 Def. Council, 555 U.S. 7, 22, 32 (2008)). To qualify for a preliminary injunction, a plaintiff 28 must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood of irreparable 12 1 harm; (3) that the balance of equities favors the plaintiff; and (4) that the injunction is in 2 the public interest. Winter, 555 U.S. at 20. 3 Alternatively, in the Ninth Circuit, an injunction may issue under a “sliding scale” 4 approach if there are serious questions going to the merits and the balance of equities tips 5 sharply in the plaintiff’s favor. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 6 (9th Cir. 2011). The plaintiff, however, must still show a likelihood of irreparable harm and 7 that an injunction is in the public interest. Id. at 1135. “[S]erious questions are those ‘which 8 cannot be resolved one way or the other at the hearing on the injunction.’” Bernhardt v. 9 Los Angeles Cty., 339 F.3d 920, 926-27 (9th Cir. 2003) (quoting Republic of the 10 Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988)). They “need not promise a 11 certainty of success, nor even present a probability of success, but must involve a ‘fair 12 chance of success on the merits.’” Marcos, 862 F.2d at 1362 (quoting Nat’l Wildlife Fed’n 13 v. Coston, 773 F.2d 1513, 1517 (9th Cir. 1985)). B. 14 Discussion 1. 15 Success on the Merits / Serious Questions Going to the Merits 16 The Ex Post Facto Clause of the United States Constitution prohibits state and 17 federal governments from retroactively imposing additional punishment on a criminal 18 defendant after the commission of an offense. U.S. Const. art. I, §§ 9, cl. 3.6 In evaluating 19 an ex post facto claim, the Court must first determine whether the legislature intended to 20 impose a criminal punishment. Smith v. Doe, 538 U.S. 84, 92 (2003). The parties agree 21 that this is not the case, so the Court moves on to the second step of the inquiry: 22 determining whether the law is “so punitive either in purpose or effect as to negate the 23 State's intention to deem it civil.” Id. (internal quotation marks and alteration omitted). 24 /// 25 /// 26 27 28 6The Double Jeopardy Clause provides an alternate theory to address the same problem. See Am. Civil Liberties Union of Nevada v. Masto, 670 F.3d 1046, 1052-53 (9th Cir. 2012) (“Under both constitutional clauses, courts apply the identical two-step test to determine whether a newly enacted legislative scheme constitutes an additional form of punishment.”). 13 1 In Smith, the Supreme Court outlined five of the “Mendoza–Martinez factors,” to 2 determine the punitive effect of a statute. 538 U.S. at 97 (citing Kennedy v. Mendoza– 3 Martinez, 372 U.S. 144, 168-69 (1963)). Those five factors are the degree to which the 4 regulatory scheme imposes a sanction that (1) has historically been regarded as 5 punishment; (2) constitutes an affirmative disability or restraint; (3) promotes the traditional 6 aims of punishment; (4) is rationally connected to a nonpunitive purpose; and (5) is 7 excessive in relation to the identified nonpunitive purpose. Id. at 98. These factors, 8 however, are neither exhaustive nor dispositive; they only provide a framework for the 9 analysis. Id. 10 11 The Court addresses these factors in turn below. a. 12 Historically Regarded as Punishment / Traditional Aims of Punishment 13 Unlike lifetime supervision, parole is part of a sentence of imprisonment. See NRS 14 § 213.110 (“[A parolee] may be allowed to go upon parole outside of the buildings or 15 enclosures, but [remains], while on parole, in the legal custody and under the control of 16 the Board and subject at any time to be taken within the enclosure of the state prison.”); 17 PAROLE, Black's Law Dictionary (10th ed. 2014). The Nevada Supreme Court has made 18 clear that lifetime supervision is different from parole in important ways. Notably, an 19 offender on parole is still serving his sentence of imprisonment for the purposes of a 20 habeas petition. See Coleman v. State, 321 P.3d 863, 866 (Nev. 2014). Moreover, a 21 violation of a condition of lifetime supervision is a new crime, which entitles the offender 22 to all of the procedural protections that accompany a criminal charge. Palmer v. State, 59 23 P.3d 1192, 1196 (Nev. 2002). 24 There is little question that parole has historically been regarded as one aspect of 25 punishment for committing a criminal offense and that it is part of a sentence of 26 imprisonment serving the traditional aims of punishment. In fact, the Nevada Supreme 27 Court recognized this important distinction between parole and lifetime supervision. See 28 Coleman, 321 P.3d at 866. 14 b. 1 Affirmative Disability or Restraint 2 The contrast in the conditions imposed on Corzine as a parolee by California and 3 the conditions imposed on him as an offender on lifetime supervision by the Nevada Parole 4 Board underscores Corzine’s contention that the parole conditions are disabling. California 5 imposes over 100 parole conditions, whereas Nevada imposed three residency 6 restrictions as conditions of lifetime supervision. (Compare ECF Nos. 26-12; 34-4 with 7 ECF No. 29-1.)7 Moreover, by treating lifetime supervision as a form of parole for purposes 8 of the Interstate Compact, NRS § 213.1243 effectively extended the length of Corzine’s 9 parole. 10 Defendants argue that defining lifetime supervision as parole for the Interstate 11 Compact is not punitive because the purpose of the legislative change, and of the compact 12 generally, is to allow offenders like Corzine to relocate to other states. (ECF No. 30 at 12- 13 13.) In other words, they argue that far from imposing restraints, the change actually 14 lessens the harshness of Corzine’s punishment. Based on the limited record before it, the 15 Court does not find this characterization accurate. 16 The Interstate Compact was in place in 2004, when Corzine committed the crimes 17 at issue. Presumably, offenders like him could take advantage of it to transfer their parole 18 or lifetime supervision to states like California at that time. In fact, Defendants have 19 provided a copy of the Department of Public Safety’s Parole and Probation Division Policy 20 and Procedural Manual from 2003. (ECF No. 44-2.) The manual clearly states that 21 “[o]ffenders shall be allowed to transfer via the Interstate Compact.” (Id. at 4.) The change 22 Corzine alleges retroactively increased his sentence—treating lifetime supervision as a 23 form of parole—did not take place until 2005. 24 Furthermore, the information provided by Defendants appears to support the 25 Court’s presumption of transfer of offenders to other states. In its order for supplemental 26 27 28 /// Court does not suggest that the Parole Board may not modify Corzine’s conditions while he is on lifetime supervision. However, the conditions that the Parole Board may impose are enumerated in the state statute. See NRS § 213.1243 7The 15 1 briefing, the Court asked the parties to point to any source of law which supports the 2 argument that offenders in Corzine’s position would not have been able to leave the state 3 while under lifetime supervision in 2004. (ECF No. 42.) In response, Defendants argued 4 that the creation of lifetime supervision in 1995 gave the Parole Board the authority over 5 where an offender may establish residency, thereby giving them authority over whether 6 an offender could establish residency outside of the state. (ECF No. 44 at 1-2.) Defendants 7 also provided examples of lifetime supervision conditions imposed on offenders in 2001, 8 2003, and 2004. (ECF No. 44-1.) Each of those offenders were required to obtain approval 9 from their supervising officer for any out of state travel and for the location of their 10 residence. 11 At this early stage in the litigation, the evidence before the Court indicates that 12 offenders in 2004 were: 1) entitled to take advantage of the Interstate Compact to relocate 13 to other states; 2) subjected to the restriction that their residence must be approved by a 14 supervising officer; and 3) subjected to the restriction that travel out of state must be 15 approved by a supervising officer. It is not clear, as the Defendants argue, that offenders 16 like Corzine were unable to relocate out of state before the 2005 change to NRS § 17 213.1243. And therefore, it is not clear, as Defendants further argue, that the 2005 change 18 simply opened up more possibilities for offenders like Corzine. 19 c. Relation to a Nonpunitive Purpose 20 Defendants argue that the change in lifetime supervisions as parole was meant to 21 be a “procedural” fix to facilitate moving offenders through the Interstate Compact. (ECF 22 No. 30 at 13.) However, even accepting the nonpunitive justification for the change, it still 23 subjects offenders like Corzine to the heightened restrictions of a lifetime on parole, and 24 therefore its punitive affects are excessive in relation to its nonpunitive purpose. 25 In sum, based on Corzine’s allegations and the limited evidence before the Court, 26 it appears that the effect of the 2005 change has been to subject Corzine to the many 27 conditions of California parole rather than the limited conditions of Nevada’s lifetime 28 supervision. At the very least, Corzine has raised serious questions going to the merits in 16 1 regards to the proper understanding of how the 2005 amendment functions for offenders 2 in his position. 3 2. Irreparable Harm 4 Corzine argues that he is being subjected to a number of conditions that restrict his 5 ability to travel, use social media, and go through the day free from warrantless searches. 6 (ECF No. 34 at 21.) Defendants argue that because California has the discretion to 7 determine its own supervision conditions under the Interstate Compact, Corzine may be 8 subjected to more onerous conditions than those listed in NRS § 213.1243 simply by 9 choosing to live in California. (ECF No. 30 at 16.) At this stage Corzine has alleged, and 10 Defendants have not argued or provided evidence to the contrary, that he is only being 11 subjected to the long list of restrictions he currently faces because of Nevada’s 2005 12 amendment to NRS § 213.1243. (ECF No. 25-1 at 9.) 13 As Corzine describes in his Emergency Motion, absent an injunction he will be 14 subjected to, among other things, a polygraph test during which he must waive any Fifth 15 Amendment right against self-incrimination, warrantless searches, and strict travel 16 restrictions. (ECF No. 35.) In fact, since the July 11, 2017, hearing, Corzine has been 17 arrested for violating the conditions of his California parole. (ECF No. 45.) It is clear that 18 absent and injunction Corzine will suffer irreparable harm. 19 3. Balance of Equities 20 An injunction would simply require Defendants to inform their California 21 counterparts that they are not required to treat Corzine as a parolee, and should rather 22 apply the Interstate Compact as it was applied before the legislative change. An injunction 23 would prevent Corzine from being subjected to dozens of potentially unlawful restrictions 24 and remove the corresponding threat of arrest and jailing. The Court finds that the balance 25 of equities tips sharply in Corzine’s favor. 26 4. Public Interest 27 Corzine will remain under some form of supervision under an injunction, assuaging 28 any public safety concerns. Furthermore, preventing a violation of constitutional law is in 17 1 the public’s interest. See United States v. Arizona, 641 F.3d 339, 366 (9th Cir. 2011), aff'd 2 in part, rev'd in part and remanded, 567 U.S. 387 (2012). 3 C. 4 The Court finds that Corzine has shown he is entitled to an injunction under the 5 criteria discussed in All. for the Wild Rockies v. Cottrell. Corzine has identified serious 6 questions going to the merits of his ex post facto claim, has shown that the balance of 7 equities tips sharply in his favor, and an injunction does not cut against the public interest. 8 Therefore, the Court will grant his Motion in the following limited fashion: Defendants 9 Wright and Wood are ordered to coordinate with California authorities in order to clarify 10 that Corzine’s lifetime supervision should be consistent with the pre 2005 version of NRS 11 § 213.1243 — specifically, California cannot treat Corzine’s lifetime supervision as parole. 12 The injunction does not mean that Corzine is free from any supervision. Nevada 13 retains the authority to impose lifetime supervision consistent with McNeill, and California 14 is free to impose restrictions consistent with Corzine’s sentence and the Interstate 15 Compact. 16 V. 17 18 Summary CONCLUSION It is hereby ordered that Defendants’ Motion to Dismiss (ECF No. 10) is granted in part and denied in part. 19 It is ordered that Defendants Laxalt, Conmay, and Lomprey are dismissed. 20 It is further ordered that Counts I, II, III, and IV are dismissed without prejudice and 21 with leave to amend. 22 It is further ordered that Counts V, VI, VIII, IV, and X are dismissed with prejudice. 23 It is further ordered that the portion of Count VII relating to 2007 amendments to 24 NRS § 213.1243 is dismissed with prejudice. 25 If is further ordered that Corzine’s Motion for Preliminary Injunction (ECF No. 26) is 26 granted in part and denied in part. Corzine’s Motion is granted in the following manner: 27 Defendants Wright and Wood are ordered to coordinate with the California authorities 28 responsible for administering the Interstate Compact in order to make clear that California 18 1 cannot treat Corzine’s sentence of lifetime supervision as parole, and may instead impose 2 the restrictions it sees fit based on Corzine’s actual lifetime supervision conditions and the 3 Interstate Compact. 4 If Corzine chooses to amend his complaint to cure the deficiencies identified with 5 respect to Counts I, II, III and IV, he must file an amended complaint no later than thirty 6 (30) days from the entry of this order. If Corzine chooses not to file an amended complaint, 7 these remaining claims will be dismissed with prejudice. 8 DATED THIS 25th day of July 2017. 9 10 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19

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