Doe v. Haslam et al

Filing 125

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Eli J. Richardson on 4/5/2021. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(kc)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JOHN DOE #1,
Plaintiff,
v.
WILLIAM B. LEE, et al.,
Defendants.

JOHN DOE #2,
Plaintiff,
v.
WILLIAM B. LEE, et al.,
Defendants.

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NO. 3:16-cv-02862
JUDGE RICHARDSON

NO. 3:17-cv-00264
JUDGE RICHARDSON

MEMORANDUM OPINION
The Court previously ruled in these consolidated actions on the following motions: (1)
Defendants’ Motion for Summary Judgment Against John Doe #1 (Doc. No. 73); (2) Defendants’
Motion for Summary Judgment Against John Doe #2 (Doc. No. 79); and (3) Plaintiffs’ Motion for
Partial Summary Judgment (Doc. No. 66, “Partial Summary Judgment Motion”). The Court issued
a Memorandum Opinion and Order granting in part and denying in part all three motions. (Doc.
Nos. 115, 116). Therein, the Court granted Plaintiffs’ summary judgment motion regarding
Plaintiffs’ claim that the Tennessee Sexual Offender and Violent Sexual Offender Registration
Verification and Tracking Act of 2004 (hereinafter “SORA”), as applied to Plaintiffs, violated the
Ex Post Facto Clause of the United State Constitution. (Doc. No. 116). In its Order, the Court
deferred ruling on three issues and ordered supplemental briefing from the parties on the following
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issues: (1) whether a permanent injunction should be issued and, if so, what its scope should be,
(2) Plaintiffs’ request for declaratory relief, and (3) Plaintiffs’ request for attorney’s fees. (Id. at
3). Plaintiff has filed a supplemental Memorandum regarding these outstanding issues. (Doc. No.
119). Defendant has filed a Response. (Doc. No. 120). Plaintiff has filed a Reply with a supporting
declaration. (Doc. Nos. 121, 123).
DISCUSSION
A. Permanent Injunction
a. Legal standard
In order to obtain a permanent injunction, a plaintiff must satisfy a four-factor test: “(1)
that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary
damages, are inadequate to compensate for that injury; (3) that, considering the balance of
hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the
public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange,
L.L.C., 547 U.S. 388, 391 (2006).
b. Discussion
Plaintiffs request a permanent injunction enjoining enforcement of SORA against them and
to not be included on the Tennessee sex offender registry (“SOR”) in the future. (Doc. No. 119 at
1-2). Defendant does not dispute that each of the four factors are met in this case:
Because the Court concluded that SORA’s application to Plaintiffs by the
Defendants is unconstitutional under the Ex Post Facto Clause, Defendants do not
now dispute that Plaintiffs have suffered an irreparable injury. Nor do Defendants
contend that monetary damages would adequately compensate for that injury.
Third, based on the irreparable injury that follows from the Court’s ruling and the
inadequacy of other remedies, the balance of hardships weighs in Plaintiff’s favor.
And fourth, it is well-settled that “the public interest is served by preventing the
violation of constitutional rights.” Chabad of S. Ohio & Congregation Lubavitch v.
City of Cincinnati, 363 F.3d 427, 436 (6th Cir. 2004).

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(Doc. No. 120 at 4). Plaintiffs argue that a permanent injunction is warranted in this case for similar
reasons. (Doc. No. 119 at 3-5). The Court agrees with both parties’ analysis that each and every
one of the four factors is met in this case. Regarding the first factor, the Court has already found
that SORA is unconstitutional as applied to Plaintiffs. (Doc. Nos. 115, 116). Regarding the other
factors, the Court finds that monetary damages would be insufficient to compensate for the
constitutional violation, the balance of hardships weighs in favor of Plaintiffs, and the public
interest would not be disserved by enjoining the enforcement of SORA and the inclusion of
Plaintiffs on the SOR. The Court therefore finds that a permanent injunction is warranted in this
matter.
Thus, the Court must turn to the scope of the injunction. Plaintiffs argue that the Court
should enjoin the entirety of the statute against them and that they should no longer be included
on the SOR. (Doc. No. 119 at 7-9). Defendants do not seem to contest the scope of the injunction.
(Doc. No. 120 at 4).
The Court had previously expressed concerns that it was unclear which specific part of
SORA Plaintiffs wished to enjoin, or whether they wished to enjoin the statute in its entirety. (Doc.
No. 115 at 83). The Court also previously found that elision (declaring some parts of SORA
unconstitutional but severable form the remaining parts deemed constitutional) would be
inappropriate in this matter, since the Court declared SORA unconstitutional only as applied to
Plaintiffs. (Id. at 82). Plaintiffs argue that SORA should be viewed as a whole, and so the entire
statute should be enjoined. (Doc. No. 119 at 5-10). Defendants do not seem to contest that Plaintiffs
are entitled to a permanent injunction that enjoins the entirety of SORA. (Doc. No. 120 at 4).
Therefore, the Court finds that it is appropriate to enjoin the entirety of SORA, albeit only as it
applies to Plaintiffs.

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In its previous memorandum opinion, the Court also expressed concerns regarding granting
relief to Plaintiffs in the form of their removal from the SOR. (Doc. No. 115 at 83 n.57). The Court
noted that though Plaintiffs indicate in their Complaints that there is no mechanism for removal
from the SOR, the statute provides for a sex offender to be taken off the SOR by filing certain
documentation after a designated time period with the Tennessee Bureau of Investigation (“TBI”).
Tenn. Code Ann. § 40-39-207(a)(1); (Doc. No. 155 at 83 n.57). The parties had not previously
briefed the issue of whether Plaintiffs would be able to terminate their inclusion on the SOR
through this mechanism. The supplemental briefing has revealed that the reference to “life of that
offender” in Tenn. Code Ann. § 40-39-207(g)(2) regarding those convicted of a violent sexual
offense or an offense in which the victim was a child of twelve years of age or less (such as
Plaintiffs) has been interpreted by the TBI as meaning that these individuals cannot be removed
from the SOR by the mechanism in Tenn. Code Ann. § 40-39-207(a)(1). Plaintiffs point to
language on TBI’s website, which clearly states that an individual with a “violent” conviction is
“not eligible for removal from Tennessee’s Registry.” (Doc. No. 119 at 2 n.1); Tennessee Bureau
of

Investigation,

Termination

FAQs,

https://www.tn.gov/tbi/general-information/redirect-

tennessee-sex-offender-registry-search/termination-faqs.html (last visited April 5, 2021). In their
Response, Defendants concur with Plaintiffs’ understanding that Plaintiffs are not eligible to be
removed from the SOR. (Doc. No. 120 at 3). Therefore, as Plaintiffs cannot remove themselves
from the SOR through the mechanism in the statute, the Court will order that they no longer be
included on the SOR.

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Therefore, the Court finds the appropriate scope of the permanent injunction to be to
restrain and enjoin Defendants1 from:
1. Enforcing the Tennessee Sexual Offender and Violent Sexual Offender Registration,
Verification, and Tracking Act of 2004, as amended and codified at Tenn. Code Ann. § 4039-201–§ 40-39-218, against Plaintiffs
2. Requiring Plaintiffs to comply with any portion of SORA
3. Including the continued publication of Plaintiffs’ information on the sex offender registry.
B. Declaratory Relief
The Declaratory Judgment Act provides that “[i]n a case of actual controversy within its
jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may
declare the rights and other legal relations of any interested party seeking such declaration, whether
or not further relief is or could be sought. Any such declaration shall have the force and effect of
a final judgment or decree and shall be reviewable as such.” 28 U.S.C.A. § 2201(a). The Supreme
Court has held that the Declaratory Judgment Act “confer[s] on federal courts unique and
substantial discretion in deciding whether to declare the rights of litigants.” Wilton v. Seven Falls
Co., 515 U.S. 277, 286 (1995). When determining whether a district court has properly exercised
its discretion under the Declaratory Judgment Act, the Court of Appeals usually considers five
factors:
(1) whether the declaratory action would settle the controversy;
(2) whether the declaratory action would serve a useful purpose in clarifying the
legal relations in issue;
Fed. R. Civ. P. 65(d)(2) provides that: “The order binds only the following who receive actual
notice of it by personal service or otherwise: (A) the parties; (B) the parties’ officers, agents,
servants, employees, and attorneys; and (C) other persons who are in active concert or participation
with anyone described in Rule 65(d)(2)(A) or (B).” Plaintiffs and Defendants all seem to agree
that other agencies and law enforcement officers will need to abide by this injunction once they
are provided notice. (Doc. No. 120 at 2; Doc. No. 121 at 3). Because of the large number of
agencies and individuals who would or could fall within the scope of Rule 65(d)(2) and should
receive notice of this permanent injunction, the Court will additionally order Defendants to
facilitate the notice process.
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(3) whether the declaratory remedy is being used merely for the purpose of
“procedural fencing” or “to provide an arena for res judicata”;
(4) whether the use of a declaratory action would increase friction between our
federal and state courts and improperly encroach upon state jurisdiction; and
(5) whether there is an alternative remedy which is better or more effective.
Doe v. Vanderbilt Univ., No. 3:18-CV-00569, 2019 WL 4748310, at *11 (M.D. Tenn. Sept. 30,
2019) (citing Grand Trunk W. R.R. Co. v. Consol. Rail Co., 746 F.2d 323, 326 (6th Cir. 1984)).
Plaintiffs argue that the relevant factors weigh in their favor.2 According to Plaintiffs, the
Court should not settle this action only by granting injunctive relief, because 1) a declaratory
judgment would distill the Court’s ruling into final judgment form, and 2) a declaratory judgment
would provide in plain terms that SORA may not be enforced against Plaintiffs. (Doc. No. 121 at
2). Plaintiffs also argue that a declaration would clarify SORA’s inapplicability to Plaintiffs and
that a declaration would complement an injunction. (Doc. No. 119 at 14). Defendants do not seem
opposed to the Court granting declaratory relief, arguing only that the Court might instead settle
this case only by granting injunctive relief. Defendants state that:
The Court has concluded “that SORA is unconstitutional as applied to
Plaintiffs.” (D.E. 115, PageID# 2476). Earlier in this litigation, in ruling on the
motions to dismiss, this Court acknowledged, “Much of the administrative
responsibility falls on the TBI, but the responsibility of case-by-case enforcement
is shared by various local police and prosecutors.” Doe v. Haslam, No. 3:16-CV02862, 2017 WL 5187117, at *10 (M.D. Tenn. Nov. 9, 2017). Consequently, the
second and fifth factors weigh heaviest in favor of declaratory relief: the only
Defendants in this case are officials of the State of Tennessee, yet as a result of the
Court’s conclusion that SORA violates Ex Post Facto protections as applied to
Plaintiffs, far more agencies are implicated than just the Defendants.
That said, this Court could also settle this action by only granting injunctive
relief (the first factor). And the third and fourth factors have little weight here.
Accordingly, if this Court exercises its discretion in granting declaratory relief,
Defendants propose that the Court’s grant of relief be to declare that the application
of the Tennessee Sexual Offender and Violent Sexual Offender Registration,
Verification and Tracking Act of 2004,Tenn. Code Ann. §§ 40-39-201 to -218, as
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Factors three and four are not relevant to this analysis.
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applied to Plaintiffs by the Defendants in this case in their official capacities, is
unconstitutional under the Ex Post Facto Clause.
(Doc. No. 120 at 2-3). As Defendants indicate, it likely would be within the Court’s discretion to
decline to order declaratory relief on the grounds that it is unnecessary in light of the permanent
injunction. But on balance, absent real opposition from Defendants, and the straightforward and at
least somewhat helpful nature of the requested declaration, the Court believes that it is appropriate
to issue a declaration largely (if not completely) as requested by Plaintiffs. Therefore, the Court
will grant declaratory relief to Plaintiffs by declaring that SORA is unconstitutional under the Ex
Post Facto Clause as applied to them by Defendants.3 See e.g., Doe v. Rausch, 461 F. Supp. 3d
747, 777 (E.D. Tenn. 2020) (issuing both declaratory relief and permanent injunction).
C. Attorney’s Fees
The Court will defer ruling on the attorney’s fees issues until Plaintiffs have filed their
contemplated motion for attorney’s fees after entry of the accompanying final order. This is
consistent with the approach suggested, appropriately, by each side. (Doc. No. 119 at 15-19; Doc.
No. 120 at 4).

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Plaintiffs argue that the declaration should state that no one is able to enforce SORA against
Plaintiffs. (Doc. No. 121 at 3). The Court has previously explained that the permanent injunction
is to be directed at Defendants and those discussed in Fed. R. Civ. P. 65(d)(2) who receive notice,
and the declaratory relief will mirror the direction of the permanent injunction. The Court is
confident that the scope of the declaration to be pronounced by the Court, which will be articulated
so as to serve the Declaratory Judgment Act’s goals of settling the controversy and legal relations
between the parties primarily, will be adequate to get across its point without giving the false
impression that it served to resolve a legal dispute involving would-be enforcers who were not
actually litigants herein. Likewise, the Court is confident that as stated, its declaration will not
place Plaintiffs in jeopardy of attempts to enforce SORA by persons other than Defendants and
those discussed in Fed. R. Civ. P. 65(d)(2) who receive notice of the permanent injunction.
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CONCLUSION
For the reasons discussed herein, the Court will grant Plaintiffs a permanent injunction and
declaratory relief to the extent indicated herein. The Court will defer ruling on attorney’s fees until
Plaintiffs have filed their contemplated motion.
An appropriate order will be entered.

____________________________________
ELI RICHARDSON
UNITED STATES DISTRICT JUDGE

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