CIVIL RIGHTS AND CRIMINAL LAW, FEDERALISM, AND SECTION 1983

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April 29, 2005

Doe v. Miller: No Place to Live

Mike

Today a unanimous three-judge panel of the Eighth Circuit Court of Appeals upheld a law that would
require people convicted of certain sex offenders to live, if at all, as complete outcasts. Doe v. Miller,
No. 04-1568 (8th Cir. Apr. 29, 2005). Perhaps people convicted of crimes against minors should be
treated as lepers. Sermon Illustrations, Leprosy ("Almost every age has had its social outcasts, people
barred from normal society whether through physical illness or national origin. One person who
stepped across these barriers in India was pioneer missionary Mary Reed. Already working in India,
Mary visited a leper colony and was deeply moved by the people’s plight.")

How we should treat those convicted of harming the most vulnerable is an interesting question -
morally and legally. But before I go into the law involved in Doe v. Miller, I want to illustrate that
Iowa's law would indeed create a new form of leper colonies.

Iowa City, IA adopted an ordinance that prohibited persons convicted of certain crimes against minors
from living within 2,000 feet of a school zone.

The problems for sex offenders are three-fold. First, the law prevents them from living with relatives.
Many convicted criminals - and especially those convicted of sex offenses - are unable to find jobs; as a
result, their only viable option is the generosity of friends and family.

Second, Iowa City's law would mean that some people would have difficulty establishing housing
anywhere. According to the panel, "the district court found that the restricted areas in many cities
encompass the majority of the available housing in the city, thus leaving only limited areas within city
limits available for sex offenders to establish a residence." Slip op. at 4. Indeed, "[i]n smaller towns, a
single school or child care facility can cause all of the incorporated areas of the town to be off limits to
sex offenders." Id.

Third, when you factor in that a sex offender's registration becomes imperfect unless he immediately
updates it upon every change of residence, it's also likely that some sex offenders will be convicted for
forgetting to register after every short-term move. There was a recent case where a person who had not
reoffended in almost a decade was convicted of failing to (re)register as a sex offender after he had
moved. Because he did not update his registration within the required two weeks, this man - who by all
acounts was rehabilitated - returned to prison. Imagine the difficulties people who jump from friend's
house to friend's house will face, as they now must ensure that they are not within 2,000 feet of a
school zone and that they promptly update their registration.

Maybe you think that the law, constitutional issues aside, is just. Perhaps the need to protect children
outweighs and problems Iowa City's law might cause. Please leave your remarks (anonymously, if you
feel uncomfortable discussing this volatile topic using your name) in the comments section.

CIVIL RIGHTS AND CRIMINAL LAW, FEDERALISM, AND SECTION 1983

Doe v. Miller: The Legal Theories

Mike

[Ed's note: This is the second installment on Doe v. Miller. The first installment is located here.]

The plaintiffs in Doe v. Miller attacked Iowa City's law on several bases. They argued that the law
violated their procedural due process and substantive due process rights; that it violated their rights to
travel interstate and intrastate; that it violated their privileges against self-incrimination and that it
violated the Ex Post Facto Clause.

Procedural due process.

According Judge Colloton:

[T]he Does contend that they are deprived of notice required by the Constitution because
some cities in Iowa are unable to provide sex offenders with information about the location
of all schools and registered child care facilities, and because it is difficult to measure the
restricted areas, which are measured “as the crow flies” from a school or child care facility.

Slip op. at 9. The vagueness challeng rightfully failed because, unlike in a free speech case where a
can be facially challenged, Broadrick v. Oklahoma, the plaintiffs could not prove that the law could
never be constitutionally applied. See Sabri v. United States ("Facial challenges [against criminal
laws] are especially to be discouraged.") Instead, the plaintiffs are limited to bringing as-applied
challenges to the law. One practical problem to this holding is that the plaintiffs must not wait until
being prosecuted before bringing an as-applied challenge to the law.

In theory, a plaintiff could bring a declaratory action after demonstrating that he could not determine
how far his potential home was from a school. But a judge would likely say: "If you can figure out - or
obtain the help to - file this lawsuit, then obviously you can go to city hall to obtain surveyors' notes.
No injury, and thus no standing. It's also not ripe: have your lawyer here take you to city hall where the
surveyors' notes are located. Case dismissed." Forcing someone to do some leg work to comply with a
law does not violate the notice requirement of due process.

The plaintiffs also argued that their due process rights were violated because they were not given an
individualized hearing before being excluded a school zone. But no case have ever held that due
process requires that. Indeed, a similar challenge failed in Connecticut Department of Public Safety v.
Doe (holding that "due process does not require the opportunity to prove a fact that is not material to
the State’s statutory scheme.")

Substantive due process.

The plaintiffs next argued that the law violated their right to familiar association. Since the law
prevented some sex offenders from living with family, they argued it violated their due process right to
familial relationships. The panel rejected this claim. The panel seemed to say: "Very well. Move."

While there was evidence that one adult sex offender in Iowa would not reside with his
parents as a result of the residency restriction, that another sex offender and his wife moved
45 miles away from their preferred location due to the statute, and that a third sex offender
could not reside with his adult child in a restricted zone, the statute does not directly
regulate the family relationship or prevent any family member from residing with a sex
offender in a residence that is consistent with the statute.

Slip op. at 12-13. I'm not sure who's right. On the one hand, the law does interfere with the right to
live with one's family. On the other hand, the plaintiffs can still live with relatives: they just can't live
with them within 2,000 feet of a school zone. Unlike free speech cases where laws that unintentionally
but indirectly burden expressive association, Brandenburg v. Ohio, there isn't any caselaw (that I know
of) holding that heightened scrutiny applies to indirect burdens on familiar relationships. If you can
correct, then feel free to do so.

Interstate and intrastate travel.

The next argument involved the right to travel interstate. The plaintiffs argued that a person from, say,
Minnesota, who wanted to travel across the border to move into Iowa would be precluded from doing
so. But as the Court noted in Saenz v. Roe, there are three components to the right to travel:

(1) “the right of a citizen of one state to enter and leave another state”;
(2) “the right to be treated as a welcome visitor rather than an unfriendly alien when
temporarily present in the second state”; and
(3) “for those travelers who elect to become permanent residents, the right to be treated like
other citizens of that state.”

But the law does not prevent someone from "enter[ing]" or "leav[ing]" Iowa or from being treated as a
"welcome visitor." Visitation is fine: just don't stay in Iowa City. And since in-state and out-of-state
sex offenders were treated equally, the challenge failed.

What about the dormant Commerce Clause?

One argument not raised, but worthy of dicussion is the dormant Commerce Clause issue. Namely, not
allowing workers to move into Iowa City places an undue burden on interstate commerce. As we know
from positive Commerce Clause cases, almost anything is interstate commerce.

Under dormant Commerce Clause jurisprudence, facially neutral regulations that unduly burden
interstate commerce must meet heightened scrutiny. Even post-Morrison, I think that the right of
employees to travel interstate to work would be interstate commerce. Morrison referred only to their
productivity - not their right to travel qua travel. Of course, the reviewing court weighing the burden
on interstate commerce could well conclude that the local benefits outweigh the burden. But it's still an
issue worth exploring. (New plaintiffs would be needed, though, as the current plaintiffs were in-state
residents and thus wouldn't have standing.)

The panel also rejected the argument that the law violates the plaintiffs' right to travel intrastate. This
created a circuit split. Slip op. at 15-16 (collecting cases). This could be the case for the Court to
consider whether there is a right to travel intrastate. In analyzing this question, it seems that the panel
takes a wrong turn.

Judge Colloton wrote: "We find it unnecessary in this case to decide whether there is a fundamental
right to intrastate travel under the Constitution, because assuming such a right is recognized, it would
not require strict scrutiny []." Slip op. at 16 (emphasis added). While it's true that it might not require
strict scrutiny, the challenge would still be analyzed under some form of heightened scrutiny. The
judge also wrote that

the Iowa statute would not implicate a right to intrastate travel for the same reasons that it
does not implicate the right to interstate travel. The Iowa residency restriction does not
prevent a sex offender from entering or leaving any part of the State, including areas within
2000 feet of a school or child care facility, and it does not erect any actual barrier to
intrastate movement.

Id. at 16-17. This seems to misapply Saenz. In Saenz, the plaintiffs were not denied the right to travel
into California. Rather, they were denied the right to obtain the same welfare benefits that in-state
residents enjoyed. Under Saenz's third category, the right to be treated equally would seem to apply.
Here, plaintiffs who want to move to Iowa City are not being treated equally. Perhaps there are good
reasons for disparate treatment. But the panel glosses over the issue, instead pretending that there isn't
any issue of equal treatment.

The panel split 2-1 on the Ex Post Facto Clause issue; and the self-incrimination issue is also
interesting. I've written enough, though, and look forward to seeing Professor Berman forthcoming
post.

All in all, Doe v. Miller is a very interesting case. You can find the full opinion by clicking here.