Does v. Wasden, No. 19-35391 (9th Cir. 2020)
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Plaintiffs, 134 men and women registered as sex offenders in Idaho, filed suit claiming that the retroactive application of Idaho's Sexual Offender Registration Notification and Community Right-to-Know Act (SORA) is unconstitutional. The district court granted defendants' motions to dismiss.
The Ninth Circuit reversed in part, holding that the district court erred in dismissing the ex post facto claim on the basis that SORA was civil in intent and not punitive in effect. The panel explained that the district court erred by applying plaintiffs' ex post facto claim as an as-applied challenge; erred by applying the "clearest proof" standard at the motion to dismiss stage; and erred in finding the outcome of the Smith factors analysis controlled by precedent. Because the district court predicated its dismissal of the Eighth Amendment and double jeopardy claims on its dismissal of the ex post facto claim, the panel held that those judgments were also in error. The panel also held that the district court erred in dismissing plaintiffs' free exercise claim because the district court erred in finding that plaintiffs failed to allege sufficient facts to plead a plausible claim under Idaho's Free Exercise of Religion Protected Act (FERPA). In this case, plaintiffs have alleged facts showing that the challenged policy substantially burdens the exercise of their religious beliefs. The panel found no error in the district court's analysis of plaintiffs' vagueness, Free Association, Equal Protection, Contracts Clause, Takings, Separation of Powers, and state Police Power challenges. Therefore, the panel affirmed the dismissal of those claims. The panel remanded for further proceedings.
Court Description: Civil Rights. The panel reversed in part and affirmed in part the district court’s dismissal of an action alleging that the retroactive application of Idaho’s Sexual Offender Registration Notification and Community Right-to-Know Act, Idaho Code § 18-8301, et seq., is unconstitutional. The panel held that the district court erred in dismissing the ex post facto claim on the basis that SORA was civil in intent and not punitive in effect. Specifically, the panel held that the district court erred by (1) construing appellants’ ex post facto claim as an as-applied challenge; (2) applying the “clearest proof” standard at the motion to dismiss stage; and (3) finding the outcome of the Smith v. Doe, 538 U.S. 84 (2003) factors analysis to be controlled by precedent. Thus, the panel held that to survive a motion to dismiss, appellants only had to plausibly allege that the amended SORA, on its face, was punitive in effect and case law did not foreclose a finding that SORA was punitive. Because the district court’s erroneous ex post facto analysis was incorporated as the sole basis for dismissing appellants’ Eighth Amendment and double jeopardy claims, the panel held that the district court erred by dismissing those claims as well. The panel held that the district court erred in dismissing the free exercise claim under Idaho’s Free Exercise of Religion Protected Act (“FERPA”). The panel held that by alleging that SORA’s amendments have, in fact, prevented DOES V. WASDEN 5 some of the appellants from attending their houses of worship, appellants plausibly alleged that their free exercise of religion was substantially burdened in violation of FERPA. The panel found no error in the district court’s analysis of appellants’ vagueness, Free Association, Equal Protection, Contracts Clause, Takings, Separation of Powers, and state Police Power challenges, and affirmed the dismissal of those claims. Dissenting in part and concurring in part, Judge VanDyke stated that he could not join in the portions of the majority’s decision that raised dispositive arguments sua sponte and revived repeatedly waived arguments. He therefore dissented from the majority’s conclusions on the ex post facto, FERPA, and cruel and unusual punishment claims, except with respect to the holding that circuit precedent did not necessarily foreclose appellants’ claim that Idaho’s SORA could be punitive in effect. Judge VanDyke concurred with the majority’s affirmance of the dismissal of appellants’ remaining claims.
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