Tennessee argues to reinstate sex offender registry requirements at Sixth Circuit

CINCINNATI (CN) — Reporting requirements for sex offenders convicted before 1995, which can include in-person reporting, administrative fees and movement restrictions, do not violate the ex post facto clause of the U.S. Constitution, the Volunteer State argued Thursday at a federal appeals court.

The state sought to overturn the ruling of a federal judge who found the exhaustive regulations punitive in nature when applied to individuals convicted before the registration system was established.

A class of convicted sex offenders filed suit in 2021 and claimed the onerous reporting requirements and restrictions on where they could travel within the state were excessively harsh and overly broad.

U.S. District Judge Aleta Trauger, a Clinton appointee, agreed and granted the class's motion for summary judgment in March 2023.

"At most," she said in her opinion, "the defendants point to evidence establishing, unremarkably, that there is an ongoing risk that someone in Tennessee will commit sex crimes, which, the defendants argue, justifies restraining the plaintiffs and others with similar convictions since those individuals might go on to be the perpetrators. (Emphasis in original.)

"But that thin argument could just as readily support policies that would obviously constitute ex post facto punishments, such as retroactive increases in prison sentences. ... [T]he act simply imposes its restrictions automatically on every person convicted by a jury of convicting a certain type of criminal offense — in other words, like a punishment."

In its brief to the Sixth Circuit, the state argued Trauger erred when she lumped numerous pieces of legislation into a single "act" and analyzed whether the laws as a whole violated the ex post facto clause.

A proper analysis, according to the state, would have included consideration of each element of the registry requirements and a determination as to whether individual laws could be severed to maintain the constitutionality of the entire statutory scheme.

Tennessee also claimed Governor Bill Lee and Bureau of Investigation Director David Rausch are improper defendants because they lack enforcement powers over the registration requirements.

Attorney Gabriel Krimm of the Tennessee Attorney General's office devoted much of his time Thursday to this point and told the panel of judges that local law enforcement officials are the parties that could grant meaningful relief to the plaintiffs.

"Director Rausch does have responsibilities, but they are not enforcement responsibilities," he told the court. "Judge Trauger granted vague and sweeping relief that violated the basic principles of equity."

Attorney Justin Adams of the Nashville firm Spencer Fane pushed back against the state's argument and claimed that Rausch's ability to remove his clients from the registry allows him to be sued under the Ex parte Young doctrine.

"It doesn't have to be complete relief, it doesn't have to be perfect relief, it just has to be some relief," Adams said. "Rausch isn't playing some bit part in the system. He is administering the heart of the scheme that makes it possible to enforce these other unconstitutional burdens."

Adams cited the Sixth Circuit's previous decision in Doe v. Snyder, a case in which similar in-person reporting requirements for sex offenders in Michigan were overturned as unconstitutional by the appeals court.

U.S. Circuit Judge Stephanie Davis, a Biden appointee, asked the attorney if Trauger's decision "threw the baby out with the bathwater" by preventing enforcement of the entire statutory scheme, some of which had been ruled constitutional.

Adams emphasized only the "bare requirement to register" was upheld in previous decisions and that Trauger properly analyzed whether in-person requirements could be severed from the scheme as a whole before she granted his clients' request for relief.

In their brief, the plaintiffs expounded upon this point and argued the system laws undoubtedly creates a cohesive statutory scheme.

"The scheme comprehensively monitors and restricts registrants by classifying them by offense, forcing them to register and report in person, collecting and publishing their information, tracking their compliance, restricting where they live, work, or are present, restricting their interactions with children, and coercing compliance with the threat of severe criminal punishment," the brief said.

Adams said it is incumbent upon the Tennessee General Assembly to make amendments that bring the scheme into compliance.

Krimm disputed that point in his rebuttal and reiterated the argument made in the state's brief.

"You cannot look at the scheme as a whole," he said. "We're talking about dozens of laws compiled into a code."

Senior U.S. Circuit Judge Eugene Siler Jr., a George H.W. Bush appointee, and U.S. Circuit Judge John Nalbandian, a Trump appointee, also sat on the panel.

No timetable has been set for the court's decision.

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