Twenty-six years ago, when he was 23, a California man was convicted of a crime involving sexual contact with a 16-year-old girl. The federal government says he therefore must register with the state as a sex offender. But California says he can't, because the state subsequently expunged his record and issued a "certificate of rehabilitation," meaning he is no longer covered by California's registration requirements. For failing to do the impossible, he faces the risk of federal prosecution, which could send him to prison for up to 10 years.
According to a federal lawsuit that the Pacific Legal Foundation (PLF) filed this week, that Kafkaesque conundrum, the result of new Justice Department regulations that took effect in January, violates the separation of powers, which prohibits executive-branch agencies from writing the laws they enforce. The complaint, which identifies the main plaintiff as "John Doe," also argues that the department's regulations violate the right to due process, since they hold him criminally responsible for something he cannot control, and the First Amendment, since they require him to report his internet usernames, which would prevent him from engaging in anonymous online speech—including commentary about the maddening situation in which he finds himself.
Doe joined the U.S. Marines when he was 17. Six years later, he committed the crime that the Justice Department says requires him to stay on California's sex offender registry even though he no longer qualifies for it under state law. The lawsuit describes the incident as "a consensual but inappropriate encounter" that "did not involve sexual intercourse." But since the teenager was two years younger than California's age of consent, that encounter resulted in criminal charges. Doe pleaded no contest to a misdemeanor count of sexual battery, which required him to register as a sex offender.
"Since then," the complaint says, "Mr. Doe has dedicated himself to making amends and becoming a model citizen. He expressed sincere remorse for his crime and voluntarily underwent psychological treatment. And equipped with a healthier perspective, he pursued higher education and has had a rewarding and productive career, became a loving husband and father, and became an active participant in his church. He has done everything one is supposed to do following a criminal conviction."
State courts officially recognized Doe's rehabilitation, clearing his 1996 conviction in 2002 and issuing a certificate recommending an unconditional pardon in 2012. He therefore "is no longer a convicted criminal and has not registered as a sex offender for more than a decade."
In the meantime, however, Congress approved the Sex Offender Registration and Notification Act (SORNA). That 2006 law made a sex offender's failure to follow state registration requirements, already a crime under state law, a federal felony. Initially, that was not a problem for Doe, since by 2012 California had removed him from the state registry. But last December, the Justice Department published SORNA regulations that required Doe, despite his expungement, to re-register with California, even though the state will not let him do that. The new rules said "only pardons on the grounds of innocence terminate registration obligations under SORNA."
Even if Doe were able to register in California, the complaint notes, it "would mean that [he] would have to turn the clock back on the past decade and threaten his stable and productive life." Doe "would face restrictions on everyday activities like picking his children up from school," along with "ostracization and harassment from his community," which would "put his hard-earned career success at risk."
And even if California allowed Doe to register, the state's requirements would not comply with the Justice Department's SORNA regulations. "California requires registrants to provide their current address and a photocopy of an identification or driver's license to their local sheriff," PLF attorney Caleb Kruckenberg explains in an email. "The new rule requires much more. A registrant must include his social security number, his 'remote communication identifiers' (e.g., internet usernames), his work or school information, and information concerning any international travel, passport and vehicle registration, or professional licenses."
There's more: "The registrant must also appear 'in-person' at least yearly in his local jurisdiction and verify all information. Depending on his predicate offense, the registrant may be required to appear as many as four times per year. He must also report, in person, changes in address within three days, give advance notice if he plans to change residences jobs or school, report changes in remote communication identifiers within three days, and international travel plans prior to any trip."
If Doe were prosecuted for violating SORNA, he could defend himself by proving that "uncontrollable circumstances prevented [him] from complying with SORNA," that he "did not contribute to the creation of those circumstances in reckless disregard of the requirement to comply," and that he "complied as soon as the circumstances preventing compliance ceased to exist." But the availability of that affirmative defense does not protect Doe from prosecution, and it is not clear how he could satisfy that third prong. There is "no guarantee that an individual will be able to prevail on this defense," the complaint notes, and "they must undergo the time and expense of a trial to find out if their state's non-compliance has turned them into a felon."
The lawsuit says "hundreds of other individuals who have had their convictions expunged are in the same position." The Alliance for Constitutional Sex Offense Laws (ACSOL) joined the lawsuit on behalf of members who face the same dilemma as Doe because their records have been expunged or because they have successfully sought relief from California's registration requirements. Other ACSOL members are still required to register under California law but are not able to supply all the information required by the Justice Department because the state does not collect it.
Attorney General Merrick Garland, who is named as a defendant in the lawsuit, issued the challenged rules under 34 USC 20912, a SORNA provision that requires states to establish sex offender registries if they want to continue receiving certain federal funds. Toward that end, the provision authorizes the attorney general to "issue guidelines and regulations." Garland also cited 34 USC 20914, which specifies the information that states are supposed to collect from registrants and adds that they also should demand "any other information required by the Attorney General."
Those provisions, the lawsuit argues, "are unlawful delegations of legislative authority," giving the attorney general "unrestrained authority to impose any registration requirement on sex offenders, without any guiding principles." It add that "the statutes impermissibly allow the Attorney General to unilaterally define the scope of violations" and "create new registration requirements that are not required or even contemplated by Congressional directive."
A similar issue was at the center of Gundy v. United States, a case that the Supreme Court heard in 2018. That case involved 34 USC 20913, a SORNA provision that gives the attorney general broad authority to decide whether and which sex offenders convicted before the law was enacted are subject to its registration requirements. The petitioner, Herman Gundy, challenged the Justice Department's retroactive application of SORNA, arguing that the law violated the nondelegation doctrine, which aims to uphold the separation of powers by constraining the executive branch's role in lawmaking.
When the Court decided Gundy in 2018, a four-justice plurality avoided that issue by reading 34 USC 20913 as requiring the attorney general to impose registration requirements on previously convicted sex offenders "as soon as feasible." In a separate opinion, Justice Samuel Alito agreed with the result, but not because he shared the plurality's narrow interpretation of Section 20913. Instead he said upholding the law was consistent with the Court's longstanding reluctance to invoke the nondelegation doctrine. "Because I cannot say that the statute lacks a discernable standard that is adequate under the approach this Court has taken for many years," he wrote, "I vote to affirm."
But Alito also said that "if a majority of this Court were willing to reconsider the
approach we have taken for the past 84 years, I would support that effort." That caveat is potentially important given the current makeup of the Court. Three justices dissented in Gundy, saying it was clear that SORNA violated the separation of powers.
"The Constitution promises that only the people's elected representatives may adopt new federal laws restricting liberty," Justice Neil Gorsuch wrote in an opinion joined by Chief Justice John Roberts and Justice Clarence Thomas. "Yet the statute before us scrambles that design. It purports to endow the nation's chief prosecutor with the
power to write his own criminal code governing the lives of a half-million citizens. Yes, those affected are some of the least popular among us. But if a single executive branch official can write laws restricting the liberty of this group of persons, what does that mean for the next?"
Justice Brett Kavanaugh, who was confirmed in October 2018, did not participate in Gundy, and he has since been joined by Justice Amy Coney Barrett, who replaced Justice Ruth Bader Ginsburg in 2020. If Kavanaugh or Barrett is open to the reconsideration that Alito suggested in 2019, there may well now be a majority in favor of reviving the nondelegation doctrine. In Gundy, the PLF notes, "the Court avoided ruling on the constitutional issue, while several Justices mentioned in dissent that SORNA is ripe for a constitutional challenge. This case could present them with an opportunity to revisit that decision."
In addition to the nondelegation and due process claims, the lawsuit argues that the Justice Department's demand for "remote communication identifiers" violates the constitutional right to freedom of speech. Doe "seeks to engage in anonymous speech on the internet through the use of anonymous remote communication identifiers, such as email addresses and social media usernames," the complaint says. "He wishes to remain anonymous to preserve his privacy, and to avoid adverse reputational and other risks related to his past offenses. He also wishes to speak anonymously about issues of public concern, including sex offender registration requirements and the unfairness of the new SORNA rule."
The Supreme Court has made it clear that people do not lose their First Amendment rights simply because they have been convicted of sex offenses, that those rights extend to the internet, and that they include the freedom to speak anonymously. The lawsuit argues that requiring registrants to divulge "remote communication identifiers" is inconsistent with those rights, as the U.S. Court of Appeals for the 9th Circuit held in a 2014 case involving a similar requirement that California used to impose.
"The new rule violates the First Amendment because it requires Mr. Doe, as well as ACSOL's members, to provide up-to-date 'remote communication identifiers' as a part of their registration information," the complaint says. "The definition of 'remote communication identifiers' is impermissibly vague, and chills free expression and anonymous speech. The identifiers can also be disseminated to the public at will, states are encouraged to allow members of the public to check specific identifiers to see if they belong to a registrant, and jurisdictions are encouraged to share them with law enforcement agencies. Plus registrants must update any changes within three days, in person, with law enforcement. There is little doubt that this provision unlawfully chills protected speech, particularly anonymous speech, yet fails to meet constitutional scrutiny."