Appendix — Doe v. Miller

District Court Order - 07/25/03

Staic, county, or as county attorney, except as otherwise

provided.” lowa Code § 331.756(1). As a County Attorney has

a duty to enforce, or cause to be enforced, the laws of the State,

it follows that this duty :aust extend to defending the

constitutionality of those same laws. Refusal, reluctance. or any

other form of goldbrick representation would be to shirk the

duty imposed on the official by the voters of his or her county.

Both named County Attorneys have now appeared before the

Court to defend § 692A.2A, and neither has flatly refused to

serve as a class representative.’ The Court, therefore, has no

reason to believe that cither party intends to forego his duty to

diligently enforce or cause to be enforced the law of the State.’

Accordingly. the Court finds that the Johnson and Clinton

County Attorneys will fairly and adequately protect the interests

‘In a recently filed response, Defendant White states that he has

no objection to being ordered to serve as a class representative.

“The Court takes judicial notice of the fact that both Mr. White

and Mr. Wolf enjoy excellent reputations as fine lawyers and well-

regarded public servants. The Court further notes that Defendant

Tom Miller, the lowa Attorney General, ts vigorously defending. §

G9IJALA

‘As the interests of the Attorney General and the Defendant

class of County Attorney are largely similar, the Court assumes

that the work involved in defending § 692A.2A will, most likely,

be shared between the State and County offices

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D*strict Court Order - 07/25/03

of the Defendant class of County Attorneys.’

Having found that the Defendant class satisfies the

requirement of Rule 23(a), the Court must again determine

whether the action may be maintained as a class action under

Rule 23(b). As with the Plaintiff class, the Court finds that

Rule 23(b\1)(A) applies in the present case as prosecution of

separate actions would create a risk of inconsistent

adjudications which would establish incompatible standards of

conduct for the Defendant Couniy Attorneys. For these reasons,

the Court hereby certifies a Defendant class under Rule

23(b) 1A), defined as “all County Attorneys for the State of

lowa, in their official capacities.” As with the Plaintiff class,

the notice and opt-out provisions of Rule 23(c)(2) do not apply

to a class certified under 23(b)(1). All members of the defined

class will, therefore, be bound by the Court's orders.

Although the named Defendant class representatives are

qualified and charged with the duty to defend the interests of

the Defendant class of county attorneys, the Court is well aware

of the tensions that may arise among class members based on

the fact that the Defendant class representatives were named by

Plaintifis. The Court has within its power the ability to replace

class representatives with other class members or to increase the

number of class representatives. See Robinson v. Sheriff of

( 00k County, 167 F.3d 1155, 1157 (7th Cir. 1999). The Court,

therefore, invites the members of the Defendant class to discuss

which member or members they would choose to serve as the

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class representative(s). Motions or affidavits regarding a

change in class representation must be received by the Court by

August 18, 2003 so the Court may consider the request and

make any changes in time for the September 15, 2003 hearing

on Plaintiffs’ Motion for Preliminary Injunction. Because,

however, Defendants White and Wolf are individually named

as Defendants in this action, Plaintiffs alone have the option of

dismissing them at this stage of the proceedings.

iil, TEMPORARY RESTRAINING ORDER

Plaintiffs next move the Court to issue a temporary

restraining order (TRO) pursuant to Fed.R.Civ.P. 65(b), to

enjoin Defendants from enforcing lowa Code § 692A.2A until

the Court has an opportunity to fully consider Plaintiffs’ request

for a preliminary injunction.’

Under Rule 65(b), a TRO may issue without notice or

hearing only if (1) it is clear that tmmediate and irreparable

‘Although Plaintiffs’ Motion is for temporary restraining order,

Defendants were given notice and were heard at the July 14, 2003

hearing. The Court also left the record open until July 25th to allow

Defendants to submit any additional evidence or argument in

opposition to Plaintiffs’ request for the TRO. As such, the Motion is

treated similarly to a motion for a preliminary injunction, and the ten

day limitation on the duration of the TRO does not apply. See C.

Wright & A. Miller, Federal Practice & Procedure: Civil 2d § 295\

(1995). See also Kansas Hosp. Ass'n_v. Whiteman, 835 F.Supp.

1548, 1551 (D. Kan. 1993) (citing Wright & Miller); Saint v.

Nebraska School Activities Asso., 684 ¥ Supp. 626, 627, n. 1 (D.

Neb. 1988 (citing Wright & Miller).

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harm will result before the adverse party can be heard in

opposition, and (2) if the applicant certifies in writing the

efforts that have been made to give notice and the reasons why

notice is not required. Here, notice is of no concern as

Defendants had an opportunity to be heard at the July 14, 2003

hearing.

In this Circuit, analyzing a plaintiff's request under Federal

Rule of Civil Procedure 65 requires application of the standards

enunciated in Dataphase Sys., Inc., v. C L Sys., Inc., 640 F.2d

109 (8th Cir. 1981) (en banc). See United indus. Corp. v.

Clorox Co., 140 F.3d 1175, 1178 (8th Cir. 1998). The

Dataphase test is applicable to a motion for a TRO as weil as

to a motion for a preliminary injunction. See SB. McLaughlin

& Co. v. Tudor Oaks Condominium Project, 877 F.2d 707, 708

(8th Cir. 1989); Sports Design and Development, Inc. v.

Schonebdom, 871 F.Supp. 1150, (N.D. lowa 1995).

The Dataphase test involves the examination of four

factors: “(1) the threat of irreparable harm to the movant; (2) the

state of the balance between this harm and the injury that

granting the injunction will inflict on other parties litigant; (3)

the probability that movant will succeed on the merits: and (4)

the public interest.” Dataphase Sys., Inc.,640 F 2d at 113. The

Eighth Circuit has determined that no single Dataphase factor

is dispositive; all factors must be considered and balanced to

determine whether to grant a restraining order. See

International Ass'n of Machinists and Aerospace Workers,

AFL-CIO v. Schimmel, 128 F.3d 689, 691 (8th Cir. 1997). The

burden of establishing the propriety of a TRO is on the movant.

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See Baker Elec. Co-op., Inc. v Chaske, 28 ¥ 34 1466, 1472 (8th

Cir. 1994) (citing Modern Computer Sys., Inc. v. Modern

Banking Sys., Inc., 871 F.2d 734,737 (8th Cir. 1989) (en banc)).

A. Threat of Irreparable Harm

_ Although none of the Dataphase factors are individually

dispositive, the Eighth Circuit has noted that “the failure to

demonstrate the threat of irreparable harm is. by itself, a

sufficient ground upon which to deny [temporary injunctive

relief].” United Indus. Corp. v. Clorox Co., 140 F.3d 1175,

1183 (8th Cir. 1998) (internal citation omitted). Plaintiffs offer

affidavits from nine members of the Plaintiff class as evidence

of the threat of irreparable harm to members of the class if

injunctive relief is not granted.”

1) John Doe | was convicted of second degree sexual assault

in Wisconsin in 1994 for having consensual sex with a girl

who was almost fifteen when he was eighteen. This

behavier does not constitute a crime under lowa law, but

John Doe I was still required to register as a sex offender

when he moved to lowa for school. John Doe | currently

resides in lowa City. He currently resides in an apartment

that is within the restricted zone under § 692A.2A, but he

established this residence prior to July |, 2002. On August

‘Plaintiffs have asked that the identities of the class members be

concealed. The Court agrees with Plaintiffs’ desire to protect their

privacy on these sensitive issues and will, therciore, refer to the

affiants using Plaintiffs’ requested John Doe pseudonyms

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1, 2003, John Doe I wishes to move to a new apartment in

the same apartment complex. Doing so would require him

to register a new residence, thereby placing him in violation

of the residency restriction. A map of Johnson County

shows that there is virtually no place in lowa City for a sex

offender to live. As John Doe | is a student at the

University of lowa, he expresses concern about being able

to continue his studies while being compelled to reside in a

rural area outside lowa City.

John Doe Il pleaded guilty to third degree sexual abuse in

August 2002 for having consensual sex with a fifteen year

old girl when he was twenty years old. John Doe Il

currently reSides in lowa City at a location that is in

violation of § 692A.2A. The Johnson County Sheriff's

Department is aware of the fact that John Doe II is currently

in violation of the statute, but has given him until August 1,

2003 to find a suitable residence. John Doe II maintains

that he has attempted to find a legally acceptable residence

since April 2003, when he was evicted from his apartment,

but he has been unsuccessful in locating such a place.

John Doe IV currently resides at the Mount Pleasant

Correctional Facility in Mount Pleasant, lowa because of a

third driving while intoxicated conviction. John Doe IV

was paroled by the lowa Board of Parole on June 10, 2003,

but has not been allowed to leave prison because he cannot

find an acceptable residence. John Doe IV wishes to live

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with his mother in Mason City, but is unable to do so

because her residence is within a restricted area. John Doe

V's mother states in a separate affidavit that she was told of

two apartment compiexes in Mason City that might be

suitable, but neither has vacancies. John Doe IV's mother

states that her son is certainly welcome to live with her if

not for § 692A.2A. John Doe IV is subject to the

restrictions of the Statute because of a 1992 offense against

a minor that was adjudicated in juvenile court because John

Doe IV was fourteen years old at the time.

John Doe V has been serving a fifteen year sentence at the

Mount Pleasant Correctional Facility after pleading guilty

to second degree sexual abuse. He has completed the Sex

Offender Treatment program and received a parole in

March of 2003. As with John Doe IV, John Doe V remains

incarcerated in spite of receiving a parole because he cannot

find a suitable place to live. If he is released, John Doe V

would like to live with his wife in the Des Moines area. He

states that it would be an extreme hardship for his wife to

have to live outside of Des Moines. A map of the City of

Des Moines shows that the 2000 feet residency restriction

bars individuals covered by § 692A.2A from living virtually

anywhere except for a few biocks in some of the city's most

exclusive neighborhoods. As such. John Doe V's wife has

been unable to find an acceptable residence, and John Doe

V remains incarcerated four months after receiving a parole.

District Court Order - 07/25/03

5) John Doe VI states that he purchased a house for himself

and his elderly and infirm mother after the address was

cleared by the Des Moines Police Department. About six

weeks after they moved into the house on April |, 2003,

John Does VI's mother received a call from the Des Moines

Police Department Sex Offender Division stating that John

Doe VI would have to move out as the house was actually

within two thousand feet of a schocl. John Doe VI found

and moved to an acceptable apartment in a Des Moines

suburb, but is unable to maintain payments on both the

apartment and the house. Since being forced to move to the

apartment, Johr Doe VI has suffered a heart attack and now

has medical bills to contend with in addition to two housing

payments. During the first part of July, John Doe VI was

told to move out of the apartment as the owner does not

want to rent to a sex offender. He has been since been

unable to find any place to live that is not in violation of §

692A.2A. John Doe VI received a twenty-five year

sentence for sexual abuse in the second degree in 1993 and

remains on supervised parole until 2005.

6) John Doe VII lives with his wife and child in rural Linn

County, lowa and works in Cedar Rapids. He must register

as a sex Offender in lowa because he was convicted of the

crime of indecent liberties with a child under Kansas law. '

"The statutory crime of indecent liberties with a child, Kan. Stat.

Ann. §21-3503 replaced what was commonly knowe as statutory

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John Doe VII's wife is expecting another chiid and

the family wishes to move to make room for the new baby

and because of a significant pest problem in their present

residence that the landlord has been unwilling to correct.

John Doe VII has investigated upwards of twenty-five

locations in Cedar Rapids, lowa, but none are beyond two-

? thousand feet from a school or daycare center. The Linn

County Sheriff's Department will not provide John Doe VII

with a list of places to live in Cedar Rapids, but claim that

they know “that there are a 1ew places on one side of town.”

The Sheriff's Department will not tell John Doe VII where

these places are, and he has been unable to fine a legally

acceptable residence.

7) John Doe VIII was convicted of the~- aggravated

misdemeancr of sexual exploitation of a minor under lowa

Code § 728.12(3) for possessing improper pictures from the

internet. Because his crime involved an offense against a

minor, John Doe VIII is subject to the residency restriction

of §692A.2A. John Doe VIII was recently evicted from his

apartment and presently lives with his parents in lowa City.

As his parents’ home its within two-thousand feet of a school

or child care facility, he is currently living in violation of §

692A.2A. John Doe VIII works in Coralville and attends

school at Kirkwood Community College. He states that he

rape. State ex rel. Hermesmann v. Seyer, 847 P.2d 1273, 1276 (Kan.

1993).

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8)

9)

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would be unable to do cither if compelled to live in the

country as he has no driver's license.

As with John Doe VIII, John Doe [X was convicted under

lowa Code § 728.12(3) for downloading inappropriate

material from the internet that involved minors. John Doe

[ X registered with the Johnson County Sheriff's

Department and was given a list of four apartments that

would be legally acceptable. After checking, John Doe IX

learned that none of the listings had any current openings.

He is currently living in violation of § 692A.2A and cannot

find a place that is legally acceptable.

John Doe X and his wife both receive Social Security

Disability payments because of mental retardation and

mental ilIness. John Doe X has no regular employment, but

he occasionally finds work through government sponsored

work groups. In June of 2002, John Doe X, was convicted,

as a pro se defendant, of a serious misdemeanor for

violating lowa Code § 709.14, lascivious conduct with a

minor John Doe X has been discharged trom probation and

is not included on the published list of sex offenders

because he is classified as a low risk to re-offend.

Regardless, John Doe X must abide by the terms of §

692A.2A as his offense was committed against a minor.

John Doe X had lived in a trailer home with his wife in

Carroll, lowa, but must now find a new residence as his

wife recently sold the trailer. As John Werden, the Carroil

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County Attorney, confirmed at the J uly 14 hearing, John Doe X

cannot live anywhere in the City of Carroll because of the 2000

feet restriction. John Doe X avows thai if the County Attorney

is allowed to enforce § 692A.2A, he will in all likelihood be

homeless as he can find no place to legally reside.

Defendants argue that Plaintiffs have not shown a threat of

irreparable harm, and offer statements from Coralville and lowa

City police officers identifying potentially legal housing in these

two communities. Defendants also challenge the allegations of

John Does II and VIII that they were recently evicted as

Defendants were unable to discover any formal records of

evictions. Lastly, Defendants note the actions taken by the

Coralville Police Department to work with certain individuals

affected by § 692A.2A. The fact that limited housing may be

available, that John Does Il and VIII may not have been

formally evicted from their apartments, or that government

officials may assist some class members in finding suitable

housing before commencing prosecution has little effect on

Plaintiffs’ statements.

The collective result of the Court's review of the Plaintiffs’

proffered affidavits reveals that two class members, John Does

IV and V, will remain in prison regardless of receiving a parole

unless the Defendant class is enjoined from enforcing §

692A.2A. At least four class members, John Does I, IL. VII.

and IX, face an immediate or imminent threat of criminal

prosecution as they are currently, or will soon be, living in

violation of § 692A.2A. John Doe VI has nowhere to live so

long as § 692A.2A is in force as he has been evicted from the

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apartment he rented after the Des Moines Police Department

told him that he could not live in the house they had approved

a short time before. Unless Defendants are enjoined from

enforcing § 692A.2A, John Doe VII and his family must

continue to live in a residence that is not only too small to

accommodate their growing needs, but that is plagued by a pest

problem the landlord will not remedy. Finally, John Doe X, a

mentally retarded man, may end up homeless as the Carroll

County attorney has made clear both his intent to enforce §

692A.2A and the fact that there are no legally acceptable

residences in the City of Carroll. Although the nine John Doe

class members represented in Plaintiffs’ affidavits make up but

a small percentage of the class as a whole, the threat of

irreparable harm to these individuals is enormous. As the Court

has already found, the claims of the class representatives and

the identified John Doe class members are typical of the class

as a whole.

In bringing this action, Plaintiffs argue that lowa Code §

692A.2A violates a number of their constitutional rights.

Absent injunctive relief, a number of the identified members of

the Plaintiff class and countless unidentified class members will

face criminal prosecutions for exercising what they believe is

their constitutional right to live in privacy with their families

where they so choose. “An individual who is imminently

threatened with prosecution for conduct that he believes is

constitutionally protected should not be forced to act at his

peril.” Edgar v. MITE Corp., 457 U.S. 624, 651 (1982)

(Stevens, J. concurring). With the words of Justice Stevens in

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mind, the Court finds that Plaintiffs have successfully—~

demonstrated a threat of irreparable harm.

B. Balance of Harm Against Injury to Other Litigants and

Public Interest

The second Dataphase factor instructs the Court to balance

the harm to Plaintiffs against the injury that granting the

injunction will inflict on other parties to this litigation. The

threatened harm to Plaintiffs includes criminal prosecution.

continued incarceration, untenable living situations, economic

loss, and forced vagrancy. Defendants’ interest is their duty to

enforce the laws of the State of lowa. As noted above, this

interest is a function of their office as elected officials; it ts not

personal. The Court agrees with Plaintiffs that Defendants’

interest is further attenuated by the fact that Plaintiffs’

Complaint raised a number of substantial challenges to §

692A.2A under the United States Constitution, which

Defendants are also sworn to uphold. As such, the Defendants

themselves should prefer resolution of the constitutional issues

involved here before they embark on continued prosecutions of

§ 692A.2A. Accordingly, the Court finds that the harm to

Plaintifts greatly outweighs any potential harm to the interests

of Detendants.

Che same can be said for the fourth Dataphase tactor, the

public's interest in granting injunctive relief. Plaintiffs contend

that although the public has an undeniable interest in ensuring

public safety and in having the laws of the State enforced, the

public has an even greater interest in assuring that constitutional

violations are remedied. Plaintiffs are correct, “it is always in

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the public interest to prevent the violation of a party's

constitutional rights.” G & V Lounge v. Michigan Liquor

Control Comm., 23 F.3d 1071, 1079 (6th Cir. 1994) (citing

Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 383 (1979);

Planned Parenthood Association vy. City of Cincinnati, 822 F.2d

1390, 1400 (6th Cir. 1987)). The Court, therefore, finds that the

public interest is served by enjoining Defendants from

enforcing lowa Code § 692A.2A.

C. Likelihood of Success

The final factor requires the Court to consider the likelihood

that Plaintiffs will succeed on the merits of their claims. As

these procecdings are in their infancy, the Court can do little

more than speculate about the eventual outcome of this case.

The Eighth Circuit notes that such speculation “militates against

any wooden or mathematical application of the test,” and

instead advises that “a court should flexibly weigh the case's

particular circumstances to determine Whether the balance of

equities so favors the movant that justice requires the court to

intervene to preserve the status quo until the merits are

determined.” U/nited Indus. Corp., 140 ¥.3d at 1179 (quoting

Calvin Klein Cosmetics Corp. vy. Lenox Laboratories, Inc. 815

F.2d 500. (8th Cir. 1987) (quoting Dataphase, 640 F.2d at

113)).

Here, Plaintiffs have raised a number of substantial

constitutional challenges to lowa Code § 692A.2A. Defendants

have not had an opportunify to respond to these legal

arguments, and the Court is not prepared to address the merits

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District Court Order - 07 25 03

of the same at the present time. As well, lowa Code §692A.2A

appears unique among state laws. and no federal court has had

an opportunity to consider a similar statutory scheme. The

Court, therefore, turns to the one court that has reviewed §

6924.2A. Inanextremely well reasoned opinion from the lowa

District Court for Washington County, Judge Lucy Gamon

found § 692A.2A unconstitutional as applied to a criminal

defendant based on a number of the same issucs raised in the

present case. See Plaintiffs’ Uxhibit A. State of lowa v. Keith

Frederick Seering. Criminal No. AGINO06718." Having not yet

fully considered Plaintiffs’ claims or Defendants’ anticipated

opposition. the Court currently has no reason to doubt the

sagacity of Judge Gannon's decision. The Court, therefore,

finds that Plaintiffs are likely to succeed on the merits of their

claims.

As Plaintiffs have shown the propriety of granting a TRO by

suceveding on all four Dutaphase factors, Plaintifls’ Motion for

a Temporary Restraining Order is granted. The individual

Defendants and members of the Defendant class shall be

enjoined from enforcing 'owa Code § 692A.2A for the duration

of the Order. This Order shall remain in offect until the Court

rules on Plaintiffs’ Motion tor Preliminary Injunction. Oral

‘Although the State's case against Mr. Seering was dismissed, the

lowa Attorney General indicated the State's intent to appeal Judge

Camon's ruling. Accordingly, Mr. Seering ts excluded from the

Plaviff class mn this action

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argument on the Motion is scheduled for September 15 and

16th, 2003.

D. Security

Before the Court may issuc a temporary restraining order to

enjoin Defendants from enforcing § 692A.2A, Fed.R.Civ.P.

6S(c) requires the party secking injunctive relief to post a

security bond “for the payment of such costs and damages as

may be incurred or suffered by any party who is found to have

been wrongfully enjoined or restrained.” In requiring a security

bond, Rule 65(c) furnishes financial security to the opposing

party in the event the injunction is later deemed improper.

United States v. Onan, 19 F.2d 1, 7 (8th Cir. 1951). The

amount of the bond required lies within the sound discretion of

the Court. Rathman Group v. Tanenbaum, 889 F.2d 787, 790

(8th Cir. 1989).

Defendants have no financial or personal interest in the

outcome of this case. As noted above. there is no risk of harm

to Defendants because of the Court's issuance of this temporary

restraining order. The Court, therefore, finds that no amount

shall be required as security from Plaintiffs before issuing the

TRO. See Kaepa Inc. v. Achilles Corp.. 76 F.3d 624, 628 (Sth

Cir. 1996) (“court 'may elect to require no security at all."”)

(quoting Corrigan Dispatch Co. v. Casa Guzman, 569 F.2d

300, 303 (Sth Cir. | 978); International Controls Corp. v. Vesco,

490 F.2d 1334, 1356 (2nd Cir. 1974) ("| The district court may

dispense with security where there has been no proof of

likelihood of harm to the party enjoined.”) (citations omitted);

Urban v. Knapp Bros. Mfg, 217 F.2d 810, 816 (6th Cir. 1954)

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(no bond required where no material damaye would ensue);

Onan, 190 F.2d at 7 (district court did not error by not requiring

bond where plaintiff could not have been damaged).

IV. ORDER

Plaintiffs’ Motions to certify Plaintiff and Defendant classes

in this action are granted. Plaintiffs’ Motion for Temporary

Restraining Order is also granted. No security bond shall be

required from Plaintiffs before the injunction takes effect. The

individually named Lrefendants and the members of the certified

Defendant class of County Attorneys are hereby immediately

enjoined from enforcing lowa Code § 692A.2A until the Court

rules on Plaintifis’ Motion for Preliminary Injunction.

IT IS SO ORDERED.

Dated this 25th day of July, 20053.

/s/ Robert W. Pratt

ROBERT W. PRATI

US. DISTRICT JUDGE

27a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

DAVENPORT DIVISION

JOHN DOE 1, JOHN DOE *

Il, and JOHN DOE IIL, on . 3:03-cv-90067

their own behal! and as .

representatives of the class *

of sex offenders in the State *

of lowa .

>

Plaintifts .

Vv. °

>

TOM MILLER. lowa °

.

Attorney General and J

PATRICK WIITE. Johnson *

County Attomey as °

representative of the class of *

all county attorneys inlowa = * MEMORANDUM

° OPINION ANDORDER

Defendants °

Writing in dissent from an en bane panel of the kighth

Circuit Court of Appeals more than thirty years ago, former

Chief Circuit Judge Donald Lay observed

The denial of due process in parole revocation

simply mirrors society's overall attitude of

degradation and defilement of a convicted felon.

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District Court Opinion and Order - 02/0904

It is sad 20th Century Commentary that socicty

views the convicted felon as a social outcast.

He has done wrong. so we rationalize and

condone punishment in various forms. We

express a desire for rchabilitation of the

individual, while simultaneously we do

everything to prevent it. Society cares fittle for

the conditions which a prisoner must suffer

while in prison: it cares even less for his future

when he is released from prison. He is a

marked man. We tell him to return to the norm

of behavior, yet we brand him as virtually

unemployable: he 1s required to live with his

normal activities severely resiricted and we

react with sickened wonder and disgust when

he returns to a life of crime.

Morrissey v. Brewer, 443 F.2d 942, 953 (8th Cir. 197 ) (en

banc) (Lay, J.. dissenting), rev , 408 U.S. 471 (1972).

Societal attitudes towards convicted persons have

changed iittle in the three decades since Morrissey. A convict

who has served his or her sentence still faces the social

stigmas and discrimination that Judge Lay described. Yet, in

some instances, the crimes perpetrated by certain classes of

offenders are so offensive to human dignity and so atrocious

that many would be comfortable using any means necessary to

prevent even the possibility of re-offense. The present case

asks the Court to examine the limits of this supposition as the

class of Plaintiffs represented includes those who society

would deem among the most deplorable of offenders. those

convicted of committing sexual offenses against minors. To

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District Court Opinion and Order - 02/09/04

what extent. then, may the State go to protect its children

from those whom it suspects might prey upon them?

Sex offenders are a serious threat in this Nation.”

Connecticut v. Doe, 538 U.S. 1,4 (2003) (quoting McKune vy.

Lile, 536 U.S. 24,32 (2002) (plurality opinion)). “The victims

of sex assault are most often juveniles.” and “when convicted

sex offenders reenter society, they are much more likely than

any other type of offender to be re-arrested for a new rape or

sex assault.” /d (quoting McAune, 536 U.S. at 32-33).

In 2002, the State of lowa responded to this threat by

enacting lowa Code § 692A.2A. The Act prohibits a person

who has committed a criminal offense against a minor from

residing within two thousand fect of a school or child care

facility. Three named Plaintiffs initially brought this action

against the lowa Attorney General and a proposed defendant

class consisting of all of lowa’s County Attorneys (“the

State”). Plaintiffs’ Complaint asks the Court to declare §

692A.2A unconstitutional on a number of theories, and

Plaintiffs further request that the Court permanently enjoin the

State from enforcing the law. By Order dated July 25, 2003,

the Court certified this action as a class action. The Plaintiff

class includes all individuals defined as a “person” by lowa

Code § 692A.2A(1), currently living in the state of lowa, or

who might wish to live in the state of lowa, and excluding

those individuals currently being prosecuted under lowa Code

§ 692A.2A in the lowa state courts. The Court also certified

Plaintiffs’ proposed Defendant class, which includes all ninety

nine of lowa's County Attorneys. with J. Patrick White, the

Johnson County Attorney, serving as class representative.

Upon certifying both Plaintiff and Defendant classes, the

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District Court Opinion and Order - 02/09/04

Court granted Plaintiffs’ motion to temporarily enjoin

enforcement of lowa Code § 692A2A until the Court ruled on

Plaintiffs’ motion for a preliminary injunction. The parties,

however, agreed to forego a preliminary injunction hearing

and to proceed directly to trial with Defendants consenting to

the Court's injunction remaining in effect throughout the

litigation process.

Plaintiffs’ challenge to lowa Code § 692A.2A is that

the law infringes upon a number of constitutional rights,

including Plaintiffs’ substantive due process rights of family

privacy and freedom to travel, the Fifth Amendment right

against self-incrimination, the Eighth Amendment's guarantee

azainst cruel and unusual punishment, and the right to

procedural due process. Plaintiffs further contend that lowa

Code § 692A.2A is an unconstitutional ex post facto law

when applied to those class members who committed their

crimes before July 1.2002. Defendants counter that the Act ts

u lawful exercise of the State's police power and a

constitutional effort to protect children from dangerous

individuals. The Court heard testimony and received evidence

from both sides during a two-day bench trial on December 15

and December 16, 2003. At the Court's behest. both sides

filed post-thal briefs on Januaiy 9, 2004, and the matter is

now filly submitted. Pursuant to Federal Rule of Civil

Procedure 52(a), the Court now sets forth its findings of fact

and separate conclusions of law thereon as detailed below.

1. FINDINGS OF FACT

I. lowa Code § 692A.2A

On May 9.2002, lowa Governor Thomas Vilsack

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signed Senate File 2197 into law. Effective July 1.2002.

Senate File 2197, now codified at lowa Code § 692A.2A,

states in full:

692A.2A Residency restrictions — child care facilities

and schools.

|. For purposes of this section, “person” means a

person who has committed a criminal offense

against a minor, or an aggravated offense, sexually

violent offense, or other relevant offense that

involved a minor.’

2. A person shall not reside within two thousand fect

of the real property comprising a public or

nonpublic elementary or secondary school or a

child care facility.

3. A person who resides within two thousand feet of

the real property comprising a public or nonpublic

elementary or secondary school, or a child care

facility, commits an aggravated misdemeanor.

4. A person residing within two thousand feet of the

real property comprising a public or nonpublic

elementary or secondary school or a child care

facility does not commit a violation of this section

‘Within the definition of person in § 692A.2A (1), the terms

“criminal offense against a minor,” “aggravated offense,” “sexually

violent offense.” and “other relevant offense” are specially defined.

See lowa Code § 692A.1 (1). (5). (7), and (9).

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District Court Opinion and Order - 02/09/04

if any of the following apply:

a. The person is required to serve a sentence at a

jail, prison, juvenile facility. or other

correctional institution or facility.

b. The person is subject to an order of

commitment under chapter 229A.

c. The person has established a residence prior to

July 1, 2002, or a school or child care facility is

newly located on or after July |, 2002.

@ The person ts a minor or a ward under a

guardianship.

Where applicable, the Act restricts the area in which a

person may reside to places that are not within two thousand

feet from a school or child care facility.’ Residence is defined

‘Laws restricting where sex offenders may live are relatively new

and somewhat unique in other jurisdictions. Twelve states other than

lowa have enacted some form of residency *» stricticy applicable to

sex offenders. See Alabama, Ala. Code § 1 5-.9-26 (1999) (restricts

sex offenders from residing or accepting employment within 2000

feet of schvol or child care facility), Arkansas, Ark. Code Ann. § 5-

14-128 (2003) (unlawful for level three or four sex offenders to

reside within 2000 feet of school or daycare), California, Cal. Pen.

Code § 3003 (as amended 2003) (parolees may not live within 35

miles of victim or witnesses, and certain sex offenders on parole may

not live within a quarter mile from a primary school), Florida, Fla.

Stat. Ann. § 947.1405 (7 a\2) (released sex offender with victim

under eighteen prohibited from living within 1,000 feet of a school,

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as “the place where a person sleeps, which may include more

than one location, and may be mobile or transitory.” lowa

Code § 692A. 1(8). As the restriction is limited to one's

residence, §692A.2A does not otherwise prohibit an

individual's presence within the restricted zone; affected

persons are free to travel, work, or generally move about

within any area. The Act contains no time frame regarding

when a person committed his or her crime, but does include a

limited “grandfather clause,” whereby an individual who has

established a residence prior to July |, 2002 is exempted from

the area restrictions. See lowa Code § 692A.2A(4\(c). The

text of § 692A.2A also indicates that sex offender who

day care center, park, playground, or other place where children

regularly congregate); Georgia, GA. Code Ann. § 42-1-13 (2003)

(sex offenders required to register shall not reside within | ,000 feet

of any child care facility, school, or area where minors congregate),

WMinois, 720 Illinois Comp. Stat. § 5/1 1-9.3 (b-5) (as amended 2000)

(child sex offenders prolhibited from knowingly residing within 500

feet of schools); Kentucky, Ky. Rev. Stat. Ann. § 17.495 (2000)

(registered sex offenders on supervised release shall not reside within

1000 feet of school or child care facility), Lowisiana, LA. Rev. Stat.

§ 14:91.1 (sexually violent predators shall not reside within 1000 feet

of schools unless permission is given by school superintendent),

Ohio, Ohio Rev. Code Ann. § 2950.03! (2003) (sex offenders

prohibited from residing within 1000 feet of school), Oklahoma, 57

OKI. Stat. § 590 (2003) (prohibits sex offenders from residing within

2000 feet of schools or educational institutions). Oregon. Or. Rev.

Stat. § 144.642, 144.643 (incorporates general prohibition on

supervised sex offenders living near places where children reside),

Tennessee, Tenn. Code. Ann. § 40-39-11! (2003) (sex offenders

prohibited from establishing residence within 1000 feet of school,

child care facility, or victim)

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establish legal residence residences after July, | 2002 will be

exempted from new restricted areas caused by the creation of

a new school or child cam facility after the effective date. See

id. Finally, §692A.2A gives no indication as to how long the

restriction will apply to any given individual

B. Child Care Facility

“Child care facility,” as the term is used in § 692A.2A,

is defined at lowa Code § 237A.1. lowa Code § 692A.1(2)

Under §237A.1, a child care facility is “a child care center,

preschool, or a registered child development home.” lowa

Code § 237A.1(5). The same code section defines a “child

care center” as “a facility providing child care or preschool

services for seven or more children, except when the facility

is registered as a child development home,” and “preschool”

as “a child care facility which provides to children ages three

through five, for periods of time not exceeding three hours per

day, programs designed to help the children to develop

intellectual skills, social skills, and motor skills, and to extend

their interest and understanding of the world about them.

lowa Code § 237A.1(4), (13). A “child development home” is

“a person or program registered under section 237A.3A that

may provide child care to six or more children at any one

time.” lowa Code § 237A.1(7)

Currently, the only available list of child care facilities

is a database maintained by the lowa Department of Human

Services ("DHS"). Plaintiffs’ witness Jodi Caswell, a DHS

administrator responsible for overseeing the registration of

child development homes, explained that the database is

maintained at the state central offices and is not published

Plaintiffs’ contend that they received a copy of the list only

after filing an open records request and paying a seventy

dollar fee.

District Court Opinion and Order - 02/09/04

Ms. Caswel, testified that the central database is

updated daily. Ms. Caswell further explained that the turnover

rate for child care facilities is frequent and could be high.

Plainuffs produced database reports from 2002 and the most

current 2003 database to show the extent to which the

database can change over a given year. (Plaintiffs’ Ex. 60 -

61). The 2002 list contains 7462 daycare locations and is 258

pages long. (Plaintiffs’ Ex. 60). Although the 2003 database

lists only 7172 locations. 1921 of these are new from the 2002

database. (Plaintiffs’ Ex. 61). In several instances, the listings

contain no physical address or only a post office box number,

but Ms. Caswell testified that an applicant is supposed to

provide a physical address

As Ms. Caswell testified. registering as a child

development home requires an individual to meet certain

requirements and to complete a one page application. At the

most hasic level, an individual can apply to register as a

Category A child development home, so long as the applicant

is at least exghteen years old. provides three letters of

reference, and has a smoke detector and fire extinguisher in

the house. See Plaintiffs’ Ex. 48. DUIS also conducts criminal

background checks on the applicant. employees, and any

person over the age of fourteen living in the home. There ts

no fee for the application and the registration ts valid for two

years

c. Implementation of lowa Code § 692A.A

John Werden, the Carroll County, lowa, county

attomey testified for the State on the steps taken to implement

§ 692A.2A im his county. Werden stated that after reviewing

the Act. he contacted the Carroll County imiormation

technology department and asked them to produce maps

gencrally locating the county's schools and child care

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District Court Opinion and Order - \2/09/04

facilities. To produce the maps, Werden explained that the

county utilized a Geographic Information Systems (“GIS”)

system, ordinarily used by the county for tax assessment

purposes, to input the locations of schools and child care

facilities. County officials then manually selected parameters

and defined the two thousand foot buffer areas around the

locations. The maps are continuously updated as locations are

added or removed from the database.

Werden conceded that the maps produced were not

accurate to the foot because of at least two variables. First,

Werden explained that the GIS system relies on aerial

photographs to establish geographic layers and to pinpoint

given locations. Once the locations vere established from the

GIS system, a question arose regarding where to place the

origin of the two thousand foot circles; circles could cither be

drawn based on the outer perimeter of a school or child care

facility's property boundaries or from the center of the

property. Werden testified, however, that the maps his office

provided to local law enforcement “were not meant to be to

exact scale,” but “a reasonable way to provide general

guidance.”

In addition to the difficulties with scaling accuracy as

described above, the map produced by Carroll County also

tailed to accurately reflect the locations of all schools and

child care facilities in the county. As Werden admitted at trial,

a daycare center in the town of Breda was mistakenly omitted

from the maps produced for law enforcement and for trial

After correcting the map to reflect the location, the entire

town was encompassed by a restricted area.

Plaintiffs also presented the Court with maps from

numerous jurisdictions throughout lowa other than Carroll

County. Plaintitfs noted, however, that not all counties or

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jurisdictions have created maps showing restricted areas.

Plaintiffs indicate that, among others, no maps exist for the

cities of Cedar Rapids, Davenport, Burlington, Newton, or

Fort Dodge. In other counties, the responsibility for

developing maps has been delegated to the towns and cities

within the county. Plaintiffs used as an example, Johnson

County, where no countywide map exists. Rather, maps from

towns in Johnson County were prepared by the lowa City and

Coralville police departments. Although the evidence

indicates that not all jurisdictions that have created maps did

so in the same fashion as Carroll County, the specific

processes used to create each map is not clear...

Lieutenant Ronald Wenman of the City of Coralville

Police Department testified about the process of

implementing and enforcing § 692A.2A in that town.

Wennian stated that when the Act was first enacted, he

researched it as best he could and attended a training seminar

conducted in Des Moines by the lowa Department of Criminal

Investigation. Wenman also assumed the responsibility for

attempting to map the city of Coralville to identify restricted

areas. In going about the process, Wenman explained that he

had personal knowledge of where public schools and

commercial daycare centers were located, and that he

obtained a list of registered child care facilities from DIIS to

supplement his knowledge. Wenman provided — this

information to the city engineering department which then

overlaid two thousand foot circles around each of the

locations

Notice of the change in law was provided to sex

ottenders by the lowa Department of Public Safety, Division

of Criminal Investigation. As Defendants’ witness Joanne

linker, the public service supervisor overseeing the sex

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District Court Opinion and Order - 02/09/04

offender registry, testified, notices were generated directly

from the sex offender registry database and were sent to the

registrant's last home address, regardless of whether the

offender's victim was a minor. The notices included a portion

of the text of § 692A.2A, but did not state whether the

registrant was subject to the residency restriction described

therein. As well, the notice did not include the exemptions to

the restriction contained in the Act.

D. Effect of lowa Code § 692A.2A on Housing

Both parties presented evidence and testimony to

detail the significant effect that lowa Code § 692A.2A has

had on available housing for those offenders covered under

the law. Perhaps most compelling are the maps detailing the

restricted areas in various jurisdictions. In larger cities such as

Des Moines and lowa City, the maps show that the two

thousand foot circles cover virtually the entire city area. See

Plaintiffs’ Ex. 9a, lla. The few areas in Des Moines, for

instance, which are not restricted, include only industrial areas

or some of the city’s newest and most expensive

neighborhoods. In smaller towns that have a school or child

care facility, the entire town is often engulfed by an excluded

area. See Plaintiffs’ Ex. 12b-12h. In Johnson County alone,

the towns of Lone Tree, North Liberty, Oxford, Shueyville,

Selon, Swisher, and Tiffen are wholly restricted to sex

offenders under § 692A.2A. Unincorporated areas and towns

too small to have a school or child care facility remain

available, as does the country, but available housing in these

areas ts not necessarily readily available.

Carroll County Attorney John Werden testified about

the effect that § 692A.2A has had on housing in his county.

As Werden explained, and a map of Carroll County shows,

the majority of Carrell County remains available for sex

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District Court Opinion and Order - 02/09/04

offenders. the large majority of this area, however, is

unincorporated farmland. Cities and towns in Carroll County

follow the same pattern as those in the rest of the state. The

City of Carroll, with a population of just over ten thousand, is

all but completely blocked off. There are small areas around

the edge of town that are not restricted, but Werden testified

that only the areas to the north and south of town have

residences. Certain small towns such as Halbur and Breda are

completely restricted while other small towns without schools

or child care facilities are completely available, ihe difference

typically being the presence of one restricted location. The

town of Breda appears completely available on the map. but

Werden explained that this was a mistake. The town, in fact.

has a registered private daycare center. With the error

corrected, the town of Breda is entirely restricted from

persons covered under § 692A.2A.

Werden also provided actual numbers of housing that

remains available in Carroll County for affected sex

offenders. The housing statistics provided do not indicate

whether units are rental properties or owner occupied, nor do

they state the number of vacancics. In defining a residential

unit, Werden explained that any dwelling was included, such

that an apartment complex with four apartments would be

counted as four units.

Defendants’ Exhibit WC shows that of 9019

residential units in Carroll County, 6942 units are inside

restricted zones and 2077, or twenty three percent, of housing

units are not in restricted areas. Of the 2077, however, all but

383 residential units are in unincorporated areas. Werden

conceded that the units in the unincorporated areas are mainly

farmhouses, but noted that the trend towards larger farms has

created some vacancies where the one who lives in the

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District Court Opinion and Order - 02/09/04

~ farmhouse no longer farms the land. Of the remaining 383

units, 244 are located in towns without a school or child care

facility, leaving 139 possible housing units for sex offenders

who want neither to live in a town so small that it has no

services, nor in an unincorporated area. As a result, in towns

and cities in Carroll County that are not completely available

or completely restricted, barely two percent of housing is

available to persons to § 692A.2A.

F. Sex Offenders

As of December 1, 2003 there were approximately

5674 sex offenders registered in the state of lowa.

(Defendants’ Ex. WA).’ Of the victims attributed to these

offenders, 5073, or eighty three pércent, Were under the age of

cighteen.* /d By far, the largest percentage of victims are

females ages eleven to seventeen, with 2812, or 45.9 percent

of total victims. Six to ten year old females rank as a distant,

but disturbing, second with 1065 victims or 17.4 percent of all

victims. /d. The statistics show that anyone of almost any age

could be either the victim of a sex offender or the perpetrator

of a sex offense. The average age for offenders is twenty three

years old: female victims average thirteen and male victims

average a mere eleven years old. /d The youngest victims in

‘Defendants’ witness Joanne Tinker expiained that approximately

800 of the registered sex offenders reside out of the State.

‘Defendants’ Ex. WA actually lists 7796 total victims. Of these,

however, 1679 are classified as “sex not listed.” The exhibit goes on

to provide information on male and Téffale victims in a given age

range, but does not include information where the sex is not listed.

Excluding these victims then, the number of victims for which the

Court was provided demographic information is 6117.

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District Court Opinion and Order - 02/09/04

lowa have not even reached their first birthdays.

Plaintiffs presented testimony and affidavits at trial

from sixteen sex offenders, the wife of one of the sixteen, and

the mother of a seventeenth offender. As in the Court's

previous Order, the Court shall refer to the Plaintiff class

members using the John Doe pseudonyms assigned by

Plaintiffs’ counsel.

I. John Doe I successfully completed probation after

being convicted of second degree sexual assault under

Wisconsin law in 1994 for having consensual sex with a gir!

who was fourteen years eleven months old when he was

eighteen years and two months old- Under lowa law, John

Doe I's actions would not constitute a crime’, but he was

nonetheless required to register as a sex offender when he

moved to lowa to attend the University of lowa. He is not

listed on the online iowa Sex Offender Registry (“ISOR”).”

John Doe | currently resides in Johnson County, lowa,

in an apartment that is within the restricted zone under §

692A.2A. John Doe I originally signed a lease for an

apartment prior to July, |, 2002 and was exempted under §

692A.2A (c)(4). On August |, 2003, John Doe | moved into a

new apartment in the same apartment complex. Upon so

doing, he was initially told that the move might be considered

a change of address that would require him to re-register and

*Pursuant to lowa Code § 709.4 (2\(c)\4), where the younger party

is fourteen or fifteen, third degree sexual abuse occurs only where

the other party is more than four years older.

*The online lowa Sex Offender Registry lists only those persons

who have been assessed as moderate or high risk for re-otfense. See

lowa Code § 692A.13(3Xc), http://www iowasexoffender.com.

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District Court Opinion and ¢ Irder - 02/09/04

lose his exempt status. In September 2003, however. the

Johnson County Attorney informed him that the new

apartment would also be exempted under the grandfather

clause.

2. John Doe I pleaded guilty to third degree sexual

abuse in August 2002 for having consensual sex with a fiftezn

year old girl when he was twenty years old. During the fall of

2002, John Doe Il lived in a halfway house in Johnson

County, lowa. lo be released from the halfway house, John

Doe I was required to secure a residence that was acceptable

to his counselor and parole officer. John Doe II had difficulty

finding housing that complied with § 692A.2A, and he

remained in the halfway house for longer than otherwise

necessary until he found suitable housing in November 2002.

John Doe Il was evicted from this apartment in April 2003

because of problems with rent. He began looking for another

residence, but had difficulty finding housing that was both

within his budget and in compliance with the two thousand

foot restriction. In searching for housing, John Doe [l-was

assisted by Margie Stanton of the Juanson County Sheriff's

Department, who would advise him on whether a given

location was outside of a restricted area. Even with this

assistance, John Doe Il was unable to tind legal housing in

part because of the two thousand foot restriction and in part

because of his own credit problems. John Doe H currently

resides in Johnson County, lowa at a location that would be in

violation of § 692A.2A but for the Court's injunction. He

remains on probation, and his probation officer is aware of his

current living situation. The online ISOR lists John Doe HI as

a moderate risk for re-offense.

3. John Doc Ul was released from prison in July 2000

4

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District Court Opinion and Order - 02/09/04

after serving nearly half of a ten-year sentence for third-

degree sexual assault. He is listed on the ISOR as a moderate

risk to re-offend. John Doe Il owns a home in Davenport,

lowa but he has had a difficult time making his mortgage

payments in large part because employers have been

unwilling to retain him upon learning of his criminal history.

John Doe Ill ts engaged to a woman who owns a home in

Clinton County, lowa where she lives with her two minor

children. John Doe Ill would like to live with his fiancee in

her home, but would be unable to do so under § 692A.2A

because the house is within a restricted area.

4. John Doe IV's mother testified about her efforts to

find her son Iegally acceptable housing after he received

parole on June 10, 2003. John Doe IV was in prison because

of multiple drunk driving offenses. He is subject to the

restrictions of § 692A.2A because of a 1992 offense against a

minor that was adjudicated in juvenile court because John

Doe IV was fourteen years old at the time. When her son

received parole, John Doe IV's mother had intended that he

come live with her in Mason City. lowa. Before he could

leave prison, however, John Doe IV had to have an approved

place to live, and his mother's house was within a restricted

area. John Doe IV's mother worked with his parole officer to

find him a place to live. but learned that most of Mason City

was restricted. She did try to find him a ple ¢ at two locations

that she Was told about, but was unable to find any vacancies.

John Doe IV was paroled to his mother's }ouse after the Court

entered its injunction. John Doe iv has since absconded.

5. John Doe VI pleaded guilty to the charge of sexual

abuse in the second degree in 1997 and was sentenced to

twenty-five years in prison. While in prison, John Doe VI

completed the sex offender treatment program and was

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District Court Opinion and Order - 02/09/04

paroled to Polk County, lowa in February 2002. John Doe VI

remains on supervised parole until 2005, and he currently

participates in after care scx offender treatment. Ilis risk

status on the ISOF is high.

John Doe VI began looking for a house to purchase

for himself and his elderly and infirm mother in January 2003.

He found a home within the city | mits and measured the

distance from the house to the two nearest schools with his

car odometer. Believing that the house was not within a

restricted area, he checked with the Des Moines Police

Department and was told that the address complied with §

692A.2A. About six weeks after John Doe VI and his mother

moved into the house on April 1.2003, his mother received a

call from the Des Moines Police Department Sex Offender

Division stating that John Doe VI would have to move out as

the house was actually within two thousand feet of a school.

John Doe VI found and moved to a legally acceptable

apartment in a Des Moines suburb, but was unable to

maintain payments on both the apartment and the house. After

being forced to move from his house, John Doe VI suffered a

heart attack and incurred substantial medical bills in addition

to the two housing payments. Shortly before the Court

enjoined enforcement of § 692A.2A, John Due VI was told to

move out of the apartment as the owner did not want to rent to

a sex offender. Upon issuance of the injunction, John Doe VI

moved back into the house he had purchased with his mother.

He states that if § 692A.2A is allowed to stand, he will have

to sell the house as he can not afford two housing payments.

6. John Doe VII lives with his wife. their two children,

and his mother-in-law in a two bedroom apartment in rural

Linn County. lowa. Ile must register as a sex offender in lowa

because he was convicted of the crime of indecent libertics

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District Court Opinion and Order - 02/09/04

with a child under Kansas law.’ As with John Doe I, John Doe

VII's actions would not have been criminal under lowa law.

The [SOR lists John Doe VII as a moderate risk to re-offend.

John Doe VII's wife gave birth to their second child

in early December 2003. Shortly before the new arrival, his

wife's mother also moved into their apartment for financial

reasons. The apartment is too small for the family and John

Doe VII wishes to move to make room for everyone. John

Doe VII states that he has investigated as many as forty

locations in Cedar Rapids, lowa, but none are beyond two-

thousand feet from a school or child care facility. The Lian

County Sheriff's Department will not provide John Doe VII

with a list of places to live in Cedar Rapids, but claim that

they know of a few places on one side of town. The Sheriff's

Department will not tell John Doe Vil where these places are,

and he has been unable to find a legally acceptable residence.

Because of his crime, John Doe VII's probation officer does

not want him living next to a high school, but has no problem

with John Doe VII living near a daycare center.

7. John Doe VII was convicted of the aggravated

misdemeanor of sexual exploitation of a minor under lowa

Code § 728.12(3) for possessing improper pictures from the

internet. Because his crime involved an offense against a

minor, John Doe VIII is subject to the residency restriction of

§ 692A.2A. John Doe VIII is classified as a high risk to re-

offend.

"The statutory crime of indecent liberties with a child, Kan. Stat.

Ann. §21-3503 replaced what was conmonly known as statutory

rape. State ex ret Jiermesmann v. mm, 847 P.2d 1273, 1276 (Kan.

1993).

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District Court Opinion and Order - 02/09/04

John Doe VIII attempted to find legal housing in the lowa

City arca, but was unable to find anything that he could

afford. He did find one possible location, but his application

was denied because of his criminal record. After

unsuccessfully searching for housing, John Doe VIII moved

into his parents’ home with the consent of his probation

officer though the home was in a restricted area. He lived with

his parents in lowa City until his recent move to another city

with his girlfriend. This new residence is also within two

thousand feet of a school or child care facility. John Doe VIII

was charged with assault and driving under the influence in

fall of 2003. and he expects that he will be sent to prison once

he is sentenced for these crimes.

8. John Doe IX was also convicted under lowa Code §

728.12(3) for downloading inappropriate material from the

internet that involved minors. After being placed on probation

for two years in June 2003, John Doe IX registered with the

Johnson County Sheriff's Department and was given a list of

four apartments that would be legally acceptable. John Doe

IX looked into each of the four apartments, but learned that

none of the listings had any current openings. He is currently

living with his wife in an apartment that would be in violation

of § 692A.2A but for the Court's injunction, and he states that

he does not Know where he would find a place to live if the

law were upheld. John Doe LX is not listed on the online

ISOR.

9. John Doe X was convicted of a serious misdemean st

for violating lowa Code § 709.14, lascivious conduct wiih a

minor. John Doe X has been discharged from probation and is

not included on the published list of sex offenders because he

is classified as a low risk to re-offend.

John Doe X and his wife both receive Social Security

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District Court Opinion and Order - 02/09/04

disability payments because of mental retardation and mental

illness. John Doe X has no regular employment, but he

occasionally finds work through government-sponsored work

groups. As John Werden, the Carroll County Attorney.

confirmed at the July 14 hearing, John Doe X cannot live

anywhere in the City of Carroll because of the 2000 feet

restriction. To comply with the two thousand foot restriction

then, John Doe X moved to an apartment complex outside of

Carroll, lowa that is substantially more expensive than any

apartment he could have obtained in town. Since moving, his

mental and physical health have deteriorated. Because of the

restriction, John Doe X was unable to obtain some subsidized

housing otherwise available for mentally disabled individuals.

10. John Doe XI has lived at his parents’ house in Cedar

Rapids, lowa since before July 1, 2002, and is exempted from

§ 692A.2A so long as he remains there. In addition to their

adult son, however, John Doe XI's wife and John Doe XI and

his wife's fifteen month old daughter and six month old son

also live in his parents’ house. As might be expected, the

stress on all parties has becn great. John Doe XI and his wiie

have searched for a new residence but were unable to find an

apartment that was either not in a restricted area or that would

accept John Doe XI given his criminal history. John Doe XI

and his wife eventually purchased a house that is within two

thousand feet of an elementary school. John Doe XI's

prebation officer has no objection to him living in the house

save for § 692A.2A. John Doe XI was convicted of

committing lascivious acts with a thirteen year old girt in

August 2000. He is classified as a high risk to re-offend.

11. John Doe XII pleaded guilty to an aggravated

misdemeanor charge of assault with intent to commit sexual

abuse in Johnson County, lowa in 2001. At the time of the

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offense, both John Doe XII and his victim were seventeen

years old. He successfully completed two years of probation

in August 2003 and is classified as a low msk to re-offend.

He is not listed on the ontine ISOR.

John Doe XII is a student at a college in lowa. During

his freshman year in 2001 and 2002, he lived in the school

dormitories with the consent of his probation officer as §

692A.2A had not yet gone into effect. He relied on grant

money to cover the cost of his room and board while at

school. John Doe XII returned to his parents’ house the

following summer and was living there when § 692A.2A

went into effect. When he returned to schoo! in August 2002,

he was told that he could no longer live in the dorms because

of a nearby child care facility. Unlike John Doe |, the fact that

John Doe XII had signed a housing contract prior to July |,

2002 was of no consequence, John Doe XII was also told that

living in the dorms during his freshman year did not qualify

him for exempt status under § 692A.2A(4\(c).

When he was told that he could not live on campus,

John Doe XII returned to his parents’ home, but coatinued to

attend school full time. As he was not living in the schoo!

dorms, he was no longer cligible for grant or scholarship

money to cover his room and board. Instead, John Doe XII

made a two hour daily commute to attend classes, yet was still

able to maintain over a 3.5 grade point average. Once the

Court enjoined enforcement of § 692A.2A. John Doe XII

moved back into the school dormitories and his housing

scholarship was reinstated.

12. John Doe XIII pleaded guilty to the class D felony of

lascivious acts with a child in 2000 for offenses against his

six year old stepdaughter. He completed two different sex

offender programs, was released from probation in August

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2002, and is classified as a low risk to re-offend. John Doe

XI was living in Black Hawk County, lowa when §

692A.2A went into effect. Although he was exempt from the

residency restriction at the time under the grandfather clause.

he was not able to afford the rent at that location and moved

out. John Doe XIII looked for a more affordable residence in

Black Hawk County but was unable to find anything that

complicd with the two thousand foot restriction. He,

therefore, moved out of lowa to his parents’ home in Indiana,

where he has lived since. His parents have now moved to

Missouri, and John Doe XIII would like to return to lowa, but

is unable to find a place in Black Hawk County that would

comply with § 692A.2A.

13. John Doe NIV pleaded guilty to a serious

misdemeanor charge in 1995 when he was nineteen after

exposing himself at a party where a thirteen year old girl was

present. Because of his crime, he was required to register as a

sex offenc 1 for ten years. After successfully completing two

years of probation and a sex offender class, John Doe XIV is

not considered a risk to re-offend, and he is not listed on the

online ISOR.

John Doe XIV is now married and has two childrer:.

the second of whch was born in September 2002. In the

summer of 2002. John Doe XIV and his wife began lodRing

for a larger place in Waterloo. lowa in anticipation of the new

baby. Although John Doe XIV had received a notice

regarding the two thousand foot residency restriction, he

mistakenly disregarded it because he did not think that it

pertained to him. Instead. he and his wife found a house with

shade trees on the street that they thought their daughter

would love because of the clementary school playground

around the corner. After moving into the new house on

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August |, 2002. John Doe XIV registered the new address at

the local sheriff's office as required by law. Upon so doing, he

was told that he could not live in the house because of §

692A.2A's residency restriction ind that he would be arrested

if he did not move. John Doe XIV returned to the sheriff's

office the next day to consult a map and learned that the only

locations not restricted by § 692A.2A were in a very exclusive

and high priced neighborhood. He then spent the next two

months looking for 1 place in or around the Waterloo area.

When nothing was found, John Doe XIV and his wile ended

up financing one hundred percent of the cost of a house in a

mral area about forty five miles from Waterloo. Because of

the move, John Doe XIV now commutes an hour each way to

work every day, and the family rarely sees their friends and

family from the Waterloo area. John Doe XIV explained thas

the move was particularly hard on his four year old daughter,

and tha: she often asks about moving back.

14. John Doe XIV's wife also testified about the effect of

§ 692.4.2A on her and her family. Because of the residency

restriction that her husband must abide by, she was forced to

quit her job in Waterloo. She now works two jobs, but makes

less than she did with her previous job. As. there are no child

care facilities near their home, John Dee XIV's wife must

drive sixteen miles each way to take their two young children

to a daycare center so that she can work to afford the housing

payments. To remain with her husband and family she had to

leave her own family and friends in the iown she had lived her

entire life. She explained that the stress caused by looking for

a new place and abiding by the residency restriction while in

the final months of her second pregnancy was immense and

sometimes made her depressed and hysterical.

15. John Doe XV was serving a twenty five year sentence

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for the second degree sexual abuse of his former girlfriend's

then ten year old daughter until he received a work release in

May 2003. After completing the work release program, he

was paroled in October 2003 to his mother's house. As his

mother's house is within two thousand feet of a school. he

would not have received the parole but for the Court's

injunction. John Doe XV has purchased a trailer of his own

and wishes to move there, but will be unable to under §

692A.2A because the trailer court where the trailer is located

is within a restricted area. John Doe XV is considered a

moderate risk to re-offend.

16. John Doe XVI appears on the sex offender registry

because he had consensual sex with a thirteen year old girl

when he was cighieen. He is classified as a high risk to re-

offend. When § 692A.2A went into effect, John Doe XVI was

living in a small one bedroom apartment with his pregnant

girlfriend. When the child was born in August, 2002, John

Doe XVI's father helped him purchase a condominium on the

outskirts of Coralville, lowa. After the Court entered its

injunction, John Doe XVI and his family moved from the

condominium into his childhood home. As the house is within

a restricted arca, he would not be able to remain there if the

injunction is lifted.

17. John Doe XVII is not a member of the Plaintiff! class

as he is currently being criminally prosecuted for a violation

of § 692A.2A. See July 25 7003 Order § II(A)(5). Join Doe

XVII pleaded guilty to tw) ©. arts of sexual abuse in the third

degree in 1994 and was | aenced to twenty years in prison.

He is classified as a high risk to re-offend. John Dee XVII

was released from prison in June 2003. The prison notified

the Webster County Sheriff's Department of John Doe X VII's

intended address forty five days prior to his release, and the

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Sheriff's office raised no concerns at that time. After he was

discharged from prison, John Doe XVII registered his new

address with the Webster County Sheriff, but states that he

was not told that the residence was within a restricted area

though a daycare center was localed in a nearby church.

Within two weeks after registering his new address, John Doe

XVII was arrested for violating the two thousand foot

residency restriction of § 692A.2A. He ts currently awaiting

trial on the charge.

18. John Doe XVI was convicted of lascivious acts

against a minor for offenses against his stepdaughter. He

completed the sex offender treatment program at Mt

Pleasant, lowa and was given a work release by the board of

parole in January 2003. He is classified as a high risk to re-

offend.

John Doe XVIII desired to live with his adult son upon

his release from prison, but was unable to because his son

lives within two thousand feet of a school. After completing

the work release program, John Doe XVIII moved to the

county to comply with § 692A.2A. He believes that he would

have received a parole rather than work release had he been

able to live with his son. John Due XVIII suffers from a

number of scrious medical problems, and he is concerned

about living in the country where he does not have convenient

access to a hospital and medical treatment.

F. Expert Witness Testimony on Treatment,

Restriction, and Supervision of Sex Offenders

1. Dudley Allison 4

Dudley Allison, an lowa Department of Corrections

parole and probation officer in Johnson County who

specializes in the supervision of sex offenders, testified for

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the State. Mr. Allison holds a bachelor's degree in psychology

and has been involved in training sessions for sex offender

treatment. He does not consider himself a scientist, and he has

done no clinical research on the treatment of sex offenders.

From 1984 until the fall of 1996, Allison was a sex offender

treatment manager at the Mount Pleasant Correctional Facility

in Mount Pleasant, lowa. During this time, he helped to

develop and supervise the prison's sex offender treatment

program. As a treatment manager, Allison facilitated group

therapy and other treatment sessions for sex offenders.

Mr. Allison explained that when he worked at Mount

Pleasant, treatment for sex offenders focused first on the

individual offender acknowledging his or her past behavior

and fighting through the minimizing, rationalizing, and

excuses the offender relied on to justify the behaviors. Once

the offender could acknowledge that his or her behavior was

inappropriate, a relapse prevention plan was established to

identify dangerous situations so the offender could, in the

future, avoid the circumstances that led to the original

offense. Both while offenders are incarcerated and once they

are released, they participate in group and individual therapy

sessions. As Allison explained. “sometimes an offense may

be more of a situational thing, other times it may be almost a

lite long pattern of behavior: we have to consider that

individually.”

In his position as a parole and probation officer,

Allison testified that he prepares risk assessments for the

Department of Corrections. In so doing, he ranks individuals

as a low, moderate, or high risk for re-offense based on a

number of factors. Polygraph and , .<thysmograph tests are

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also used in the assessment process.* As noted above, low risk

individuals are subject to fewer community notification

requirements and do not appear on the ISOR website.

Allison testified that, as a parole and probation officer,

he has the ability to place restrictions and limitations on the

activities of the offenders he supervises. When crafting

restrictions, Allison explained that he tries to have offenders

avoid “dangerous situations,” which depend on_ several

variables defined by the iidividual offender such as the type

of offense, the risk assessment. victim choice, and others.

Allison noted that just as the variables differ based on the

individual offender, restrictions and limitations would also be

individualized to address the specific needs of a given

offender. Ile provided the example of twenty year olds with

fourteen and fifteen year old girlfriends. These men have

committed sexual offenses against minors, but Allison stated

that he did not find these people to be specifically dangerous

to young minors. For other offenders, Allison testified that he

might not want an offender working in a toy shop or spending

his days staring at aplayground or school across the street.

Mr. Allison opined that, based on his training and

experience, he believes that there is a legitimate public safety

concern reyvarding where sex offenders live. He testified-

however, that as a parole and probation officer, he was able to

deal with dangerous situations without § 692A.2A. As well.

*As used in this setting, a plethysmograph is a device that

measures changes in the circumference of the penis. During the test,

a cuff, which Allison referred to as a “strain gauge,” is placed around

the subject's penis and any change in circumference is noted while

the subject ts presented with materials depicting various sexual

scenarios, both appropriate and otherwise.

District Court Opinion and Order - 02/09/04

Allison admitted that placing sex offenders into residences

designed to implement a4 particular offender's parole or

probation plan would be casicr without the Act. Allison

explained that, when considering restrictions for an offender,

he was more concerned with the circumstances and situation

into which the individual was being placed than he was with a

specific distance. When asked about any concerns he had

about potential problems that could arise if a number of sex

offenders begin living in the same apartment complex or

residence, Allison replied, “if you put individuals together

with like interests, and those intcrests are negative or deviant,

then potentially they could be negative influences on each

other

2. Dr. William McEchron

The State introduced the transcript of Dr. William

McEchron's expert witness testimony from a hearing on

criminal defendant Keith Secring's motion to dismiss for

failure to state a constitutional claim, in the lowa District

Court for Washington County. Defendants’ Ex. MB> Dr.

McEchron holds a Ph.D. in educational psychoivgy from the

University of lowa, and maintains an office in Davenport

lowa. His general practice includes seeing a variety of clients,

including adults, children, and families, as well as doing work

for custody evaluations. According to Dr. McEchron, “the

majority of the practice is with people who have...life's

problems, depression, anxiety, that soft of thing.” Defendant's

Ex. MB at 27. He also testified that he sees “a lot of sex

offenders” and that his work in this area includes group

therapy. evaluations for private attorneys, and occasional

Court evaluations for sentencing and risk assessment

purposes.

According to Dr. McEchron, sexual offender behavior

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is not classified as a mental illness,

but rather as a disruptive behavior. As did Mr. Allison, Dr.

McEchron testified that a common element in the treatment of

sex offenders is to first make them aware that they have done

something wrong. Once this step is accomplished, treatment

begins to focus on relapse prevention. The process of relapse

prevention, Dr. McEchron explained, involves getting sex

offenders to understand why they committed the offense. The

process “varies from person to person,” and “there are

probably very few common elements.” /d. at 37. He also

identified “opportunity. knowing what the issues were in the

person's life” as another component of relapse prevention,

noting. for example, that re-offense can happen “during a

particularly stressful time in their lives.” /d. at 38. _

When asked if there is a cure for sex offenders, Dr.

McEchron answered “no,” and went onto explain that,

although there are some types of individuals with which they

have had “a great deal of success” and “some that we feel very

positive about”, “there are never any guarantees that they

might not re-offend.” /d at 29. Other individuals cause a

much greater level of anxiety because they are prone to “a lot

higher degree of re-offending.” /d

Dr. Mckchron testified that he believed it ts

appropriate to place restrictions on sex offenders who are in

his treatment and also under the supervision of the

Department of Corrections. Hle explained that such

restrictions are a “combined effort” that consists of a

therapeutic component for which he is responsible, and issues

of supervision and accountability in terms of following Court

orders, for which the Department of Corrections ts

responsible. Finally, this combined effort also includes “what

we feel is best for that individual — to be successful in the

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future and to not re-offend.” /d at 30. Reasonable restrictions

might include restricting a sex offender's access to children,

“particularly if that's an issue,” but Dr. McEchron went on to

explain that “we can't say that all sex offenders offend against

children, but certainly we're very concerned about their

welfare, and you also have w cefine, you know, the age of the

children, the relationship to the offender and so on.” /d. at 31.

Because there “were very high rates of re-offense for sex

offenders who had offended against children,” Dr. Mclichron

testified that he believed it would be appropriate to restrict

places where sex offenders might come into contact with

children if their victims were children. Dr. McEchron stated

that the appropriateness of such a restriction, is “common

sense,” although there is not sufficient data to allow them to

know “where to draw the marks.” /d at 32. “Ideally, you

would want to have most, if not all, the restrictions, lifted

from a person before they're off of parole or probation to see

how the offender does while there are still people involved in

his life to keep an eye on him and see how he does in the real

world.” /d. at 39.

According to Dr. McEchron, removing restrictions

would require “some judgment.” and that ‘there's experience

on the part of, particularly, the parole officers who use some

judgment in terms of how can they let go of some of those

restrictions.” /cd. He siated that the goal is to have the person

be self-restrictive, which involves starting off with

appropriate restrictions and then educating the individual on

how to avoid high-risk situations. He identific:| “opportunity”

and “temptation” as the main elements that create a serious

risk of re-offense when an offender finds himself around

children, but Dr. McEchron identified the biggest risk as

“what's going on inside the individual.” /d at 33-34. He

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explained that, “we have a real hard time controlling what's in

a person's head and in their heart. That has to be , their

responsibility in the end.” /d. at 34. Dr. McEchron agreed that

controlling the opportunity and temptation to re-offend is the

probable aim of restrictions that limit an offenders access to

children and that reducing opportunity and temptation is

extremely important to treatment.

When questioned about the factors that go into

assessing the dangerousness of sex offenders or the likelihood

of their re-offense, Dr. McEchron said such factors would

include prior history, prior criminal history, the number of

offenses, the number of sexual offenses, the victims age, the

victim's sex, the relationship to the victim, whether alcohol

was involved, and whether mental illness was involved. He

testified that he had not seen a variable that consists of the

distance that one resides from a school or day care, nor was he ~

aware of any studies that have presented evidence of

recidivism rates that specifically look at the distance sex

offenders live from a school or child care facility.

Dr. McEchron testified that a restriction that applies _

for the remainder of an individual's life, regardless of progress

made in treatment, does not aid in the treatment process

because such a restriction does nothing to help motivate the

offender. Rather, Dr. Meckchron admitted that such

restrictions could actually be a problem for treatment because

the restriction seems unfair to the individual offender. Ile

agreed that the residency restriction might be a setback for a

person who is doing well in treatment, stating that it, “might

not always be the case, but it certainly isn't going to help him

therapeutically. It's not going to help them towards a good

attitude towards authority and society, and it may spiral them

into depression.” /d. at 51-52. Dr. McEchron further agreed

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that a law that would prevent a patient from living with, or

being a part of, his or her family would be detrimental to the

progress in treatment.

Sex offenders, Dr. Mclichron explained, attempt to

avoid the restrictions that have been placed on them in order

to create the opportunity or temptation to re-offend. As such,

Dr. McEchron stated that there are “a number of issues that

we try to deal with in treatment thai are probably more

powerful” than restrictions might be for eliminating re-

offense because of opportunity and temptation. /d at 36. He

listed victim identification, victim insight, relapse prevention,

and any possible mental health and substance abuse issues as

controls to identify and treat to avoid later temptations and

opportunities. Dr. McEchron testified that, “if there are those

controls, you have isolated the problem and made it more

manageable for the offender.” /d at 36. Dr. McEchron stated

that he knew of no particularly safe distance for those

offenders who have not demonstrated self-control or adopted

tools of relapse prevention. “There isn't any good, hard data

on what the minimum or maximum is. . .1 think its what's

inside the person's mind.” /d at 41.

a Dr. Luis Rosell

Dr. Luis Rosell, a clinical and forensic psychologist in

Mount Pleasant, lowa, testified as an expert witness for

Plaintiffs. Dr. Rosell has testified in five different states on

behalf of convicted sex offenders in proceedings for the post-

incarceration civi. commitinent of sexually violent predators.

After receiving his master’s degree in 1988, Dr. Rosell

worked as a master’s level psychologist at the Reception

Center in Baltimore, Maryland, a state run sex offender

treatment program. Dr. Rosell received a doctorate in

psychology in 1998. He has given numerous presentations on

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the topic of sex offender treatment. Dr. Rosell is also a

member of the Association for the Treatment of Sexual

Abusers (ATSA).

From October 1998 until April 2002, Dr. Rosell

served as the program director of the sex offender treatment

program in Mount Pleasant, lowa. In this capacity, his duties

included supervising the twelve to thirteen correctional

counselors who provided the majority of the treatment, as

well as the master’s-level psychologists, who helped with

evaluations.

In preparation for his testimony in this case. Dr. Rosell

sent'a mass email ‘o his colleagues in the ATSA, asking for

any research on residency restrictions for sexual offenders.

Although the email was sent to the more than one thousand

members, the only response came from Stephen J. Hout,

director of the sexual offender treatment program for the

Minnesota Department of Corrections. Hout referred Dr.

Resell to his study, based on the State of Minnesota’s inquiry

into residency restrictions, entitled Level Three Sex Offenders

Residential Placement Issues. See Plaintiffs’ Ex. 41. Dr.

Rosell testified that, to his knowledge, this study is the only

professional writing that has in some way attempted to

address residential placement issues as they pertain to sexual

offenders.

a. Categorization of Sex Offenders

Dr. Rosell testified that it can be helpful to break sex

offenders into different categories, “especially when it comes

to determining risk.” Categorization of offenders is based first

on a victim type, such as pedophilia. From this initial

determination, there are different subcategories within

pedophilia. The first subcategory depends on the sex of the

victim, and the second subcategory delineates between

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incestuai and non-incestual offenses. Dr. Rosell stated that the

most common type of victim is one who has a familial

relationship to their offender. While acting as program

director in Mt. Pleasant, he observed that, at one time, of the

300 sexual offenders that were being treated, about forty nine

percent had some form of relationship to their victim, and

another twenty five to thirty percent knew their victims, either

as friends, neighbors, or in a similar capacity. Dr. Rosell

remarked that, in his experience, “stranger relationships,”

where the offender does not know his or her victim, “have

always been the least common type of relationships.” The

final descriptor used to categorize offenders is “exclusive

versus nonexclusive type,” where exclusive type means that

the offenders are only attracted to children and have no

interest in adults. Nonexclusive type sex offenders are

individuals who have adult relationships most of the time, but

who have also committed offenses against children and meet

the criteria for pedophilia.

A Swedish study which categorized sexual offenders

by the modus operandi of the individual offenders has

indicated that there can be stability in the offender’s choice of

victim. Dr. Rosell explained that the study, which looked at

1,400 subjects, found that seventy five of them re-offended.

These seventy five were then broken down to examine the

type of offense in which they had engaged. The study showed

significant stability in regards to the offenders’ choice of

victims such that individuals that offended against males

continued to offend against males, and so on. Offenders

choice of victim by age groups also remained stable. Dr.

Rosell opined that, “if an individual offends against 14 or 15

year old girls, they're most likely going to stay in that range.”

b. Recidivism Rates

District Court Opinion and Order - 02/0904

_In discussing recidivism rates, Dr. Rosell referred to a

1998 study conducted by Dr. R. Karl Hanson and Monique

Bussiére, entitled, Predicting Relapse: A Meta-Analysis of

Sexual Offender Recidivism Studies. See Plaintitfs’ Ex. 50.

’ Dr. Hanson’s study involved a large “meta-analysis,” or a

statistical study of other studies, that looked at sixty one

studics with up to 28,000 subjects. They found that in a four-

to five-year follow-up, 13.4 percent of child molesters re-

offended and about 18.9 percent of adult rapists re-offended.

Dr. Roscll also discussed a 2002 meta-analysis conducted by

Dr. Hanson that examined the treatment outcome of 9,000

subjects. In that study, Dr. Ilanson reported that among

individuals that did not complete treatment, seventeen percent

re-offended. Among those who did comp!-te treatment, ten

percent re-offended.

When asked to provide an opinion based on all studies

that examine recidivism rates for sex offenders, Dr. Rosell

placed the recidivism rate over twenty years for sex offenders

as a Whole around twenty to twenty five percent. but qualified

his answer by saying, “a lot depends on the individual.” As an

example, he cited one study that found the recidivism rate to

be about ten percent for incest offenders and twenty five

percent for extra-familial offenders. Dr. Rosell agreed,

however, that many, but not all, sex offenders will have to

deal with their behaviors for the remainder of their lives. Over

time though, Dr. Rosell stated, Dr. Hanson's study makes

clear that recidivism rates will decrease. He explained, “its

believed that if an individual hasn't recidivated after 10 or 15

years, obviously they have learned the right way to go and that

likelihood is decreased.”

¢. Treatment and Restrictions

As a general method for treating sex offenders, Dr.

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Rosell explained that “each person is going to have a different

factor that led them to engage in this inappropriate act or

acts.” As such, “the main thing about treatment is to identify

all of those, then later assist. . . the individual with [creating]

coping mechanisms that can be implemented so that in the

future, when they are confronted with similar situations, they

don't act in the same way.” Treatment restrictions are then

considered based on the factors that led to the offending

behavior to ensure that these elements are not duplicated

when the individual is released from prison. Dr. Rosell

explained that he would be concerned about whether the

person had any substance abuse history and whether that was

related to his offending behavior. Restrictions, he stated, “are

going to be based on what type of victim they have.”

Dr. Rosell agreed that specifically restricting a sex

offender's access to children was a good idea, and explained

that the children he would be concerned about restricting the

offender from would depend on the type of offending

behavior in which that individual had engaged. For example,

this would involve distinguishing an exira-familial offender

from an intra-familial offender, as “there arc some offenders

that offend only in the home, children, stepchildren, nieces,

and cousins.” Dr. Rosell challenged the societal belief that sex

offenders are the “ones we read about who kidnap kids and

then there is a big search for them,” noting, “those are the

exceptions, not the rules.” According to Dr. Resell, “we need

to be more aware of the ones who we actually know who they

are and we may even be related to them.”

Dr. Rosell was also asked whether he believes it

would be appropriate. in restricting access to children, to

make the restriction apply to all minor children. Ue answered

that the diagnosis is, “going to be made on an individual

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basis."and agreed with Plaintiffs’ counsel that a probation

officer, parole officer, or someone in the prison system should

be able to determine with some reasonable accuracy what am

appropriate restrictions with regards to children.

Dr. Rosell stated that he was not aware of any

literature suggesting that the distance or proximity to a school

or daycare center 1s a factor in whether or not someone was

going to re-offend. He testified that in Dr. Hanson's large

meta-analysis he looked at an exhaustive list of factors.

Proximity was not one of the factors addressed. When asked

about the Minnesota study, which examined thirteen people

over two years, Dr. Rosell said of thirteen level offenders who

re-offended, in not one of the cases was the recidivism related

ai all to proximity or the 1,500 law. Dr. Rosell pointed to the

study's third finding, which reads:

There is no evidence in Minnesota that residential

proximity to schools or parks affects re-offense. Thirteen

level three offenders released between 1997 and 1999 have

been rearrested for a new sex offense since their release from

prison, and in noné of the cases has residential proximity to

schools or parks been a factor in the re-offense.

Plaintiffs’ Ex. 41 at 11.

In response to questioning as to whether the distance

that someone lives from a school has any impact at all with

regard to re-offending, Dr. Rosell said, “not in general,” and

remarked that, “basically. if an individual wants to get

children in, he can find ways.” Plaintiff's counsel then asked

whether the logic of that would have him limiting people with

regard to schools and parks and playgrounds and arcades. Dr.

Rosell replied. “if an individual has that history. But not

everybody has that type of history.”

When asked by defense counsel whether he would

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agree that for those individuals who have a propensity or ~

potential to re-offend, but who do not have parole or

probation supervision, there is probably a good justification

for this law, Dr. Rosell disagreed, stating, “I don’t even think

it would really make that much of a difference . . . | don't

believe that residential proximity makes that big of a

difference. If an individual wants to offend, he will offend. It

doesn’t really matter how close the school is.” Dr. Rosell

went on to state that he did not fecl that § 692A.2A was an

appropriate or effective saleguard against re-offense, but he

did agree that for a few offenders, such as those without

intensive supervision, sound treatment would be to remove

opportunities and temptations from the individual. By

removing opportunity, the likelihood of re-offense ts

decreased, he explained, because by definition, if “the

opportunity is not there, then you really can't offend.”

Because, however, § 692A.2A applies to all sex offenders

with minor victims, Dr. Rosell reasoned that the law was not

really appropriate from a “common sense modality.” As he

explained, “if an individual has victims of fifteen year-olds

and he has shown no propensity to any attraction to children,

being worried that he is a thousand feet from an elementary

school is really not that — it’s over-worry.” According to Dr.

Rosell, the two thousand foot restriction is too restrictive, and

the law does not adequately address the danger to public

safety.

When asked his opinion on whether the Act could

actually be counterproductive with regard to making the

community safer. Dr. Rosell stated that “it could be

counterproductive to the individual in numerous ways, which

can make it another barrier that he deals with. Then maybe

increase the likelihood of the individual becoming depressed

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and then giving up and who knows what an individual might

do when they have just given up.” He explained that

depression could result because after the offenders “come out

of prison already with having to register, community

notification, they feel like a pariah.” Furthermore, “if they are

not allowed to go back and live with their wives or mothers or

brothers, who is going to help them get back on their feet?

Then it's just another barrier that they are having ts deal

with.” Dr. Rosell testified that “a support system is important

for everybody, not just the sex offender,” and that “the

support system might not be available to that individual if he

has to live apart from them.”

For the majority of offenders, Dr. Rosell noted, it is

unnecessary to impose a residency restriction if those

offenders are already under supervision by probation or parole

officers. He stated. “I can only think of specific examples in

which I thought it would be appropriate. Those are specific

exceptions, not the general rule.” He also testified that two

thousand feet is an “extreme...it is just pretty excessive.” He

added that it might not be effective “because the individuals

who are going to go to a daycare or take a kid from a school,

are usually very predatory and danycrous individuals, and

those are the exceptions, not the rule.” For these individuals,

Dr. Rose!) concluded, “it doesn't matter if it was ‘a two mile

radius that they could not be close to. If they want to take

someone, they will.”

if. CONCLUSIONS OF LAW

To declare a legislative Act unconstitutional is “the

gravest and most delicate duty that this Court is called upon to

perform.” Blodgett v. Holden. 275 U.S. 142, 148 (1927)

(Holmes, J. concurring). In so doing, “the rule is settled that

as between two possible interpretations of a statute, by one of

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which it would be unconstitutional and by the other valid, [the

Court's} plain duty is to adopt that which will save the Act.

Even to avoid a serious doubt the rule is the same.” /d.

The class of Plaintiffs represented here challenges the

constitutionality of lowa Code § 692A.2A on a number of

grounds. First Plaintiffs argue that the law imposes an

unconstitutional punis ment on those subject to the

restrictions. Plaintiffs contend that by restricting where sex

offenders may live, § 692A.2A in fact imposes a punishment

that is the functional equivalent of banishment. Because the

Act is punitive, Plaintiffs argue, retroactive application of the

law to those individuals who committed their crimes before

July 1, 2002 is « violation of the cx post facto clause of the

United States Constitution.

Next, Plaintiffs contend that § 692A.2A

unconstitutionally impedes on their substantive due process

rights. Plaintiffs argue that the residency restriction infringes

on the constitutionally protected right to travel because class

members who may wish to return to lowa or migrate to lowa

would not be able to because of the lack of legal housing. As

well, those class members who were exempted from the

restriction because they had established their residence prior

to July 1, 2002, are unable to establish a new residence

because there are so few places to live. Plaintiffs also argue

that § 692A.2A infringes on the right to family privacy

because the law restricts an individual's ability to associate

and live with the family members of his or her choosing.

In addition to claiming that § 692A.2A4 infringes upon

their substantive due process rights, Plaintiffs argue that the

Act violates their Fourteenth Amendment right to procedural

due process because the residency restrictions apply to all

class members without providing sufficient notice, an

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opportunity to be heard, or any sort of review process.

Lastly, Plaintiffs contend that § 692A.2A violates both

their Fifth and Eighth amendment rights against self

incrimination and cruel and unusual punishments. Plaintiffs

argue that the Act infringes on the Fifth Amendment right

against self incrimination because sex offenders, by law, must

register their addresses with local law enforcement. Failure to

register is itself a criminal offense. See lowa Code § 692A.7.

If, therefore, an individual resides in a restricted zone, he will

be admitting to a crime when he provides his address to

comply with the registration law. As such, Plaintiffs contend

that § 692A.2A forces offenders to unlawfully incriminate

themselves. Plaintiffs also argue that § 692A.2A violates the

Eighth Amendment's guarantee against cruel and unusual

punishment, because excluding sex offenders from certain

areas amounts to banishment. The Court will consider each

claim separately.

A. Ex Post Facto

The United States Constitution specifically bans both

the federal government and the states from passing ex post

facto laws. See Art. 1, §9, cl. 3 (federal government); Art. 1,

$10. cl. L (state government). Literally, the Ex Post Facto

Clause prohibits the passage of a law after the fact. Calder v

Bull, 3 U.S. 386, 390 (1796) (Chase, J., seriatim). Upon initial

review, however, the United States Supreme Court stated that

without explanation, the Clause is unintelligible and

meaningless. /d Consequently, the Court has spent more than

two centuries deriving perspicuity from the otherwise

ambiguous term of art. In dicta in a seriatim opinion in the

1796 case of Calder v. Bull, 3 U.S. 386, Justice Samuel Chase

described four categories of ex post facto laws:

District Court Opinion and Order - 02/09/04

Ist. Every law that makes an action done

before the passing of the law, and which was

innocent when done, criminal; and punishes

such action. 2d. Every, law that aggravates a

crime or makes it greater than it was, when

committed. 3d. Every law that changes the

punishment, and inflicts a greater punishment.

than the law annexed to the crime, when

committed. 4th. Every law that alters the Icgal

rules of evidence, and receives less, or

different, testimony. than the law required at

the time of the commission of the offence, in

order to convict the offender.

Id at 390. More than two hundred years after Justice Chase

identified his categories, the Supreme Court continues to rely

on this framework for analyzing laws under the ex post facto

clause. See ¢.g. Stogner v. California, 123 S. Ct. 2446, 2450

(2003); Carn. ell v. Texas, 529 U.S. 513, 539(2000).

Members of the Plaintiff class who committed their

crimes before July 1, 2002, the effective date of lowa Code §

692A.2A, argue that the law is an unconstitutional ex post

facto law as applied to them because the Act's residency

restriction amounts to a punishment. Plaintiffs assert that the

Act effectively banishes them from most towns and

communities in lowa. The residency restriction, Plaintiffs

argue, punishes them a second time for their original sex

crime. As such, Plaintiffs argument is that § 692A.2A falls

within Justice Chase's third category of ex post facto laws, a

law that changes the punishment, and inflicts a greater

punishment, than the law annexed to the crime when

committed. See Calder, 3 U.S. at 390.

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The State contends that there is no~ex post facto

problem because § 692A.2A docs not punish actions that

occurred prior the law's enactment. Rather, the State argues

that the only criminal sanction involved is that imposed for

violations of the residency restriction. See lowa Code §

692A.2A(3). As such, an individual is not being punished for

the prior sex offense. but for residing within a restricted area.

The Siate likens § 692A.2A to criminal statutes prohibiting

felons from possessing firearms. Under laws such as this, the

individual is a felon and. therefore, subject to the law's

restrictions by virtue of the past offense, not current conduct.

Violation of the law, however, comes about because of events

which can occur only after passage of the law. Here, the State

argues, a sex offender falls within § 692A.2's purview

because of the prior sex offense. Any further criminal

sanction under the law could occur only if a “person” under

the law is found to reside in a restricted area after July 1,

2002.

Although initially attractive, the State's position fails

to consider the fundamental premise of Plaintiffs’ argument,

the two thousand foot residency restriction itself constitutes a

punishment.

I. Legislative Intent

. When faced with the question of whether a given

statute imposes a punishment. the Court must first “ascertain

whether the legislature meant the statute to establish ‘civil’

proceedings.” Smith v. Doe, 538 U.S. 84, 92 (2003) (quoting

Kansas v. Hendricks, 521 U.S. 346, 361 (1997)). If the

legislature intended to impose a punishment, the inquiry is

complete. /d. If, however, the intention of the legislature “was

to enact a regulatory scheme that is civil and non-punitive.”

the Court “must further examine whether the statutory scheme

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is “so punitive either in puipose or effect as to negate [the

States} intention’ to deem it ‘civil.”” /d. (quoting Hendricks,

521 U.S. at 361 (quoting United States v. Ward, 448 US.

242, 248-249 (1980))). In making this determination, the

Court should “ordinarily defer to the legislature's stated

intent,” and “only the clearest proof will suffice te override

legislative intent and transform what has been denominated a

civil remedy into a criminal penalty.” /d. (quoting Hendricks,

521 U.S. at 361; Hudson v. United States, 522 U.S. 93, 100

(1997) (quoting Ward, 448 U.S. at 249)).

The lowa Supreme Court has stated, “the purpose of

chapter 692A is clear: to require registration of sex offenders

and thereby protect society from those who because of

probation, parole, or other release are given access to

members of the public.” Jn Interest of SMM... 558 N.W.2d

405, 408 (lowa 1997). lowa Code Chapter 692A, however,

contains no such statement of purpose. In State v. Pickens,

published on the same day and cited in S. Af. M. as controlling,

the lowa Supreme Court specifically acknowledged the lack

of clear legislative intent in Chapter 692A, noting

“[ujnfortunately, we are not aided by an express legislative

statement as to the underlying intert of the lowa Legislature

in enacting chapter 692A.” Staiv v. Fickens, 558 N.W.2d 396,

399 (lowa 1997): see In Interest of S.M.M., 558 N.W.2d at

465. The Pickens court went on to hold that the purpose of the

sex offender registration requirements in chapter 692A are to

protect the public, and not to punish sex offenders. Pickens,

558 N.W.2d at 400.

Although the lowa General Assembly has not provided

a clear statement of the legislative intent behind § 692A.2A to

which the Court can defer, “where a legislative resthction ‘is

an incident of the State’s power to protect the health and

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safety of its citizens,’ it will be considered ‘as evidencing an

intent to exercise that regulatory power, and not a purpose to

add to the punishment.” Smith v, Doe, 538 U.S. at 93-94

(quoting Flemming v. Nestor, 363 U.S. 603, 616 (1960)).

lowa Code § 692A.2A would appear to have been crafted for

the same purpose as the remainder of chapter 692A, an

exercise of the State's police power designed to protect the

public from potentially dangerous individuals. As such, the

Court must conclude that the intent of the lowa General

Assembly in passing the two thousand foot residency

restriction in § 692A.2A. was to create a civil, non-punitive

statutory scheme to protect the public.

2. Whether the effect of § 692A.2A is punitive

Having concluded that the intent behind § 692A.2A

was civil and not punitive, the Court must now go further and

consider whether the effect of the law is so punitive that it

negates the State’s attempt to craft civil restrictions, See Smith

v. Doe, 538 U.S. at 92; Rem v. United States Bureau of

Prisons, 320 F.3d 791, 794 (8th Cir. 2003) (citing Kennedy v,

Mendoza-Martinez, 372 U.S. 144, 168-169 (1963)).

Where the record lacks conclusive evidence that the

legislature intended to enact a penal statute, the Court must

consider the law on its face using the seven factors noted in

Kennedy v. Mendoza-Martinez. See Smith v. Doe, 538 U.S. at

97 (citing Mendoza-Martinez, 372 U.S. at 168-69). The tests

traditionally applied to determine whether an Act of Congress

is penal or regulatory in character include:

Whether the sanction involves an affirmative

disability or restraint, whether it has historically

been regarded as a punishment, whether it comes

into play only on a finding of scienter, whether its

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operation will promote the traditional aims of

punishment — retribution and deterrence,

whether the behavior to which it applies is

already a crime, whether an alternative purpose

to which it may rationally be connected ir

assignable for it, and whether it appears

excessive in relation to the alternative purpose

assigned.

Mendoza-Martinez, 362 U.S. at 168-69 (citations and

footnotes omitted). These same factors apply in a number of

constitutional contexts, and they are “neither exhaustive nor

dispositive,” United States v, Ward, 448 U.S. at 249, but are

useful guideposts,” //udson, 522 U.S. at 99. See Smith v. Doe,

538 US. at 97.

Recently, in Smith v. Doe, the Supreme Court referred

to the Mendoza-Martinez factors when considering the

punitive effect of Alaska’s sex offender registration laws. In

so doing. the Court noted that five of the seven factors were

relevant to its analysis. Smith v. Doe, 538 U.S. at 97. The

Court reasoned that the two remaining factors, whether the

regulation comes into play only on a finding of scienter and

whether the behavior to which it applies ts already a crime,

were of litthe weight because the “regulatory scheme applics

only to past conduct, which was, and is, a crime.” /d at 105.

Because the same holds truc in the present case, that the

residency restriction in § 692A.2A applics only because of

prior criminal sex offenses, the Court's analysis relies on the

same five factors used in Smith v. Doe.

a. Whether the residency restriction has historically

been regarded as a punishment

“A historical survey can be useful because a State that

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decides to punish an individual is likely to select a means

deemed punitive in our tradition, so that the public will

recognize it as such.” /d. at 97. In colonial times, “[t]he most

serious offenders were banished. after which they could

neither return to their original community nor, reputation

tarnished, be admitted easily into a new one.” /d. at 98 (citing

T. Blomberg & K. Lucken, American Penology: A History of

Control 30-31 (2000). Plaintiffs contend that the two

thousand foot residency restriction imposed on them by lowa

Code § 692A.2A closely resembles this historical punishment,

for offenders are effectively forced out and restricted from

returning to their orig.aal community lest they be guilty of

another offense.

On its face, § 692A.2A does not specifically banish

scx offenders from lowa’s many communities. By simply

specifying certain areas where sex offenders may not live, the

Act would appear to differ from an order of banishment that

forever casts a given individual away from the community.

Practical application of the Act. however. reveals striking

similarities between the two. Under § 692A.2. sex offenders

are completely banned from living in a number of lowa’'s:

smaller towns and cities. In the State’s major communities,

offenders are relegated to living in industrial areas, in some of

the cities’ most expensive developments, or on the very

outskirts of town where available housing is_ limited.

Although some areas are completely unrestricted. these are

either very small towns without any services, or farmland. As

well, should anyone in an available area decide that he or she

no longer wants sex offenders to have the option of moving

into the neighborhood, the individual need only register his or

her home as a private child development home and a two

thousand foot buffer zone emerges.

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The effective result of § 692A.2A is that some sex

offenders end up remaining in prison beyond their parole

dates, choosing between living with their families or

complying with the Act, going homeless or breaking the law,

or simply leaving the State because no community has a legal

space for them. The differences between a law that would

leave a man in prison or cause h.». to go homeless rather than

have him reside in the community, and an order forever

banishing him, are very slight. As such, the Court finds that

the regulatory scheme employed in § 692A.2A has

historically been regarded as a punishment.

b. Whether the Act imposes an affirmative disability

or restraint

When determining whether a law subjects those within

its purview to an “affirmative disability or restraint,”

Martinez-Mendoza, 372 U.S. at 168, the Court inquires “how

the effects of the Act are felt by those subject to it. If the

disability or restraint is minor and indirect, its effects are

unlikely to be punitive.” Smith vy. Doe, 538 U.S. at 99-100.

The affirmative restraint imposed by lowa Code § 692A4.2A is

neither minor nor indirect. Rather, the Act very specifically

restricts persons subject to it from living in certain areas

under penalty of imprisonment. As noied above, those

affected by § 692A.2A are almost completely restricted from

living in any of lowa’s population centers. Unlike the

registration laws reviewed in Smith vy. Due, § 692A.2A does

in fact restrain sex offenders from changing residences. See

Id. at 100. Testimony from the John Doe sex offenders in this

case establishes a record replete with “evidence that the Act

has led to substantial . . . housing disadvantages for former

sex offenders that would not have otherwise occurred through

the use of routine background checks by employers and

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landlords.” /d. As it were, § 692A.2A imposes exactly the

affirmative restraint that the Supreme Court found lacking in

Alaska’s sex offender registration scheme. The Court.

therefore, finds that § 692A.2A imposes an affirmative

restraint on those subject to it

c. Whether the operation of § 692A.2A promotes the

traditional aims of punishment

The third Martinez-Mendoza factor instructs the Court

to consider whether the operation fof § 692A.2A] will

promote the traditional aims of punishment -- retribution and

deterrence.” Martinez-Mendoza, 372 U.S. at 168. In Smith y

Doe, the State of Alaska conceded that the sex offender

registration law at issue there might deter future crimes. Smith

v. Doe, 538 U.S. at 102. Although lowa chooses not to

consider the two thousand foot residency restriction a

punishment, Defendants must concede that § 692A.2A goes

even further to deter would-be sex offenders than does a

registration and community notification system.

As well, § 692A.2A promotes retribution as the

second aim of punishment. Under the Act, sex offenders are

subject to the residency restriction regardless of whether they

pose a danger to the population. Whether an individual is

classified by the lowa Department of Corrections as a high.

low, or moderate risk to re-offend is irrelevant to the

restrictions placed on where that person might live

Additionally. no consideration is made of an individual

offender's prior offenses or choice of victims. Many of the

John Doe Plaintifis testified that their parole officers would

have had no objection to them living in a particular residence

but for § 692A.2A. Both Drs. Rosell and Mclichron testified

that sex offenders tend to prefer a particular type of victim,

and although crossover to different victim types does occur, it

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is not customary. Dr. Rosell also testified that those treating

sex offenders feel most comfortable about a lessened chance

of recidivism with those offenders who have not re-offended

for a number of years. The residency restriction contains no

time limit, and could potentially be enforced for the remainder

of the offender's life. The Act, then, goes beyond whait is

necessary to protect the public and enters into the realm of

retribution. Accordingly, the Court finds that § 692A.2A

promotes both of the traditional aims of punishment,

deterrence and retribution.

d. Whether § 692A.2A may rationally be connected to

an alternative purpose

There is no doubt that § 692A.2A has a purpose other

than simply to punish sex offenders. The lowa Supreme Court

reasoned that the purpose ‘of lowa Code Chapter 692A as a

whole is to “protect socicty from those who because of

probation, parole, or other release are given access to

members of the public.” /n Jnterest of S.M.M.. 558 N.W.2d at

408. Restated, the purpose of Chapter 692 is to protect the

public from sex offenders. Given this purpose, it is certainly

reasonable to conclude that restricting sex offenders from

residing within two thousand fect of a schvol or child care

facility might also protect society.

€. Whether § 692A.2A is excessive in relation to its

alternative purpose

As noted above, the residency restriction in §

692A.2A goes beyond what is reasonably necessary to protect

the public. The Act makes no consideration for the type of

offender, type of offense, or the offender's risk of re-

offending. That is, § 692A.2A applies regardless of whether a

particular offender is a danger to the public. As such, the law

goes beyond the alternative purpose for which it is related.

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The Court, therefore, finds that § 692A.2A is

excessive in achieving its purpose of protecting the public.

After reviewing the effect of § 697A.2A under the

Martinez-Mendoza factors, the Court concludes that the Act

goes beyond the legislatures intent to craft a civil regulatory

scheme and is, in fact, punitive. The scheme closely

resembles that of the historical punishment of banishment.

The residency restriction is an affirmative restraint or those

subject to § 692A.2A. The Act would be effective at deterring

future sex offenders by promoting and promising retribution

for those who are convic ‘ed. Finally, the Act is connected to

the alternative and compelling purpose of protecting the

public, but it exceeds that which is reasonably necessary to

accomplish this goal. As such, the Court holds that lowa Code

§ 692A.2A is “so punitive in effect as to negate [the State's]

intention to deem it civil.” Smith v. Doe, 538 U.S. at 92

(internal citations and quotations omitted). Application of §

692A.2A to those who committed their respective crimes

before July 1, 2002, constitutes a retroactive punishment

forbidden by the Lx Post Facto Clause of the United States

Constitution.

B. Substantive Due Process

The Fourteenth Amendment to the United States

Constitution mandates that no State shall “deprive any person

of life, liberty, or property, without due process of law.” U.S.

Const. amend. XIV, § 1. In addition to the “guarantee of fait

procedure.” the Due Process Clause also includes a

substantive component. “which forbids the government to

infringe certain ‘fundamental’ liberty interests at all, no matter

what process ts provided, unless the infringement is narrowly

tailored to serve a compelling state interest.” Reno v. Flores.

$07 U.S. 292. 301-302 (1993) (citing Collins v. City of

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Harker Heights, 503 U.S. 115, 125 (1992) (Due Process

“protects individual liberty against certain government actions

regardless of the fairness of the procedures used to implement

them.”) (quoting Daniels v. Williams, 474 U.S. 327,

331(1986))).

In addition to the freedoms enumerated in the Bill of

Rights, a long line of Supreme Court cases have held that the

substantive Due Process Clause specially protects an

individual's liberty interest in the rights to marry, Loving v.

Virginia, 388 U.S. | (1967); to have children, Skinner vy.

Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); to direct

the education and upbringing of one’s children, Meyer v.

Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters,

268 U.S. 510 (1925); to marital privacy, Griswold vy.

Connecticut, 381 U.S. 479 (1965); to use contraception, id; to

bodily integrity. Rochin v. California, 342 U.S. 165 (1952), to

abortion, Planned Parenthood v. Casey, 505 U.S. 833 (1992);

and to privacy arid choice in one’s personal and sexual

relationships, Lawrence vy. Texas, 123 S. Ct. 2472 (2003). The

Supreme Court, however, has “always been reluctant to

expand the concept of substantive due process because

guideposts for responsible decision making in this

unchartered area are scarce and open-ended,” Collins, 503

U.S. at 125 (citing Regents of Univ. of Mich. v. Ewing, 474

U.S, 214, 225-226 (1985)).

There are two primary features of the established

method of substantive due process analysis. Washington v.

Gluckshere, 521 U.S. 702, 720 (1997). First, “the Due

Process Clause specially protects those fundamental rights

and liberties which are, objectively, ‘deeply rooted in this

Nation's history and tradition.” id, at 720 (quoting Moore v.

East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion));

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(citing Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (“so

rooted in the traditions and conscience of our people as to be

ranked as fundamental™)), “and ‘implicit in the concept of

ordered liberty,’ such that ‘neither liberty mor justice would

exist if they were sacrificed." /d (quoting Palko vy.

Connecticut) 302 U.S. 319, 325, 326 (1937)). Substantive due

process also requires a careful description of the asserted

fundamental liberty interest.” /d at 721 (citations and

quotation omitted). As the Supreme Court has stated, ‘[o}ur

Nation's history, legal traditions, and practices thus provide

the crucial *guideposts for responsible decision making’ that,

direct and restrain our exposition for Due Process Clause.” /d

(quoting Collins, 503 U.S. at 125).

1. Fundamental Rights

a. Right to Personal Choice Regarding Family

Matters

The Supreme Court has often recognized a right to

privacy and personal choice regarding family matters. As

noted in Roberts v United States Jaycees, 468 U.S. 609

(1984), “in one line of decisions, the Court has concluded that

choices to enter into and maintain certain intimate human

relationships must be secured against undue intrusion by the

State because of the role of such relationships in safeguarding

the individual freedom that is central to our constitutional

scheme.” dd at 617-18.

| Phe constitutional shelter afforded such relationships

reflects the realization that

individuals draw much of their emotional

enrichment from close tics with others.

Protecting these relationships from

unwarranted state interference therefore

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safeguards the ability independently to define

one’s identity that is central to any concept of

liberty.

The personal affiliations that

exemplify these considerations, and that

therefore suggest some relevant limitations on

the relationships that might be entitled to this

sort of constitutional protection, are those that

attend the creation and sustenance of a family

— marriage, childbirth, the raising and

education of children, and cohabitation with

one’s relatives. Family relationships, by their

nature, involve deep attachments and

commitments to the necessarily few other

individuals with whom one shares not only a

special community of thoughts, experiences,

and beliefs but also distinctively personal

aspects of ones life.

Id. at 619-20 (citations omitted).

Plaintiffs contend that § 692A.2A infringes on their

right to privacy and choice in personal affiliation because the

act interferes with the ability of sex offenders to live with

their family members. Plaintiffs take examples from the John

Doe testimony to show that in certain instances some

offenders remain in prison though their families desperately

want them to come home. and others are compelled to move

away from their family and support network though both their

family members and parole officers are comfortable with

them living there. Other offenders are subject to arrest for

attempting to live with their husbands or wives

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The State, on the other hand, dismisses Plaintiffs’

“warm endorsement of family life” as “fallacious,” because

the argument “loses sight of the fact that many of the

members of the Plaintiffs’ class sexually molested their own

sons. daughters, or grandchildren.” Def.s’ Br. at 6. Rather, the

State argues that the residency restriction is no different from

a zoning regulation as it prohibits certain uses of land within

the jurisdiction.

From the outset, the Court flatly rejects the State's

attempt to cast § 692A.2A as a zoning regulation. First, those

who might violate a zoning regulation are not subject to a year

in prison for their misdeeds. More basic though, is that zoning

regulations do not identify a specific group of persons and

mark off areas wherein they may not live subject to attest.

Were the class of people subject to the regulation other than

convicted sex offenders, the State's forced segregation would

prompt outrage. Without question though, sex offenders are

not a suspect class, and the protections available to others

when the segregation or discrimination is based on race, sex,

or national origin are not available. Even so, the residency

restriction goes well beyond that which anyone could

reasonably argue is a zoning regulation.

The fundamental right that Plaintiffs assert is a right to

privately choose how they want to conduct their family

affairs. Included in this right is the right to determine those

members of the family with whom one wants to reside.

Although Defendants correctly identify that many of the

Plaintiff class members committed their offenses against

family members, this is not the case for all class members.

Yet all class members are subject to the residency restriction.

Moreover, the Act restricts flee choice of association, not only

for the offenders, but for their family members as well. Upon

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completion of the sex offender's penal sentence, the offender

has paid his or her debt to society and should have the

opportunity to start anew. If an offender's family wishes their

relative to return, and the individual is not dangerous, then the

-choice should be theirs to make. Beyond the offenders, non-

offender spouses should also be free from the Hobson's

choice of whether to stay with the person to whom they are

legally bound, which could involve moving away from the

spouse's family, friends, and support network, maintaining

separate residences, or dissolving the marriage.

The Court found the testimony of John Doe XIV's

wife an exceedingly compelling and informative example of

the effect § 692A.2A has on those who have done no wrong

themselves. Before § 692A2A went into effect, John Doe

XIV’s wife had a good job in the city where she grew up and

where her family lived. She lived with her husband and their

young daughter, and they had recently purchased their first

_home. After July 1, 2002, her life was thrust into a depressing

turmoil when she learned that her husband would be arrested

if he continued to live in the house they had just bought. After

a frustrating search, she and her family moved away from her

lifelong home to live forty five miles away in the country.

Where she used to do her part to support the family with one

job, she now works two and still has difficulties making ends

meet. Because there are no child care facilities nearby, she

drives an extra thirty miles every day to take her two children

to daycare so that she can work two jobs that pay less together

than the job she was forced to leave. She testified that she has

suffered nervous breakdowns since moving and is often

depressed. On many nights, her four year old daughter cries

and asks when“they will be able to go home. Yet she has

remained by her husbands side and has honored her marital

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vows, even though doing so has caused extreme hardship.

And she endures this all because three years before she even

met him, her then nineteen year old husband exposed himself

at a party where a thirteen year old girl happened to be

present.

The right to privately choose how to conduct family

affairs and decide where and with whom family members will

live is held by the entire family; the sex offender is not the

only factor in the domestic calculus. Inherent in the right ts

that the freedom of choice must permeate to all members of

the family. As § 692A.2A interferes with these choices, the

Court finds that the Act infringes upon Plaintiffs’

fundamental right to govern their family affairs as they so

desire and without undue interference from the State.

b. Right to Travel

The Supreme Court has described the “constitutional

right to travel from one State to another,” United States v.

Guest, 383 U.S. 745, 757 (1966), as a right so fundamental

and important that it is “assertable against private interference

as well as government action...a virtually unconditional

personal right, guaranteed by the Constitution to us all.”

Saenz v. Roe, 526 U.S. 489, 498 (1999) (quoting Shapiro v.

Thompson, 394 US. 618. 643 (1969) (Stewart, J..

concurring)). In Saenz, the Court noted three different

components to the “right to travel.” /d at 500. First. it

guarantees that a citizen of one state may-freely enter and

leave another state. /d Next, the right to travel ensures that

visitors of another state are welcomed rather than treated as

unfriendly alicns. /d. Lastly, the constitution protects the right

of those who choose to travel to another state and make it

their permanent home to be treated as an equal with other

citizens of that state. /d.

District Court Opinion and Order - 02/09/04

Those members of the Plaintiff class who currently

reside outside of the State of lowa, but who would like to

return to the State, allege that lowa Code § 692A.2A infringes

on the right to interstate travel because the Act effectively

bans sex offenders from residing in large sections of lowa’s

towns and cities. Plaintiffs living in lowa contend that the Act

infringes on the asserted right to intrastate travel. As Plaintiffs

concede, however, whether the constitution protects intrastate

travel as a fundamental right, as it does interstate travel, is

less clear.

In Johnson vy. Cincinnati, 310 F.3d 484 (6th Cir. 2002).

the Sixth Circuit Court of Appeals held, “[t}he Constitution

protects a right to travel locally through public spaces and

roadways.” /d. at 498. The Court agrees. Protecting a right to

intrastate travel comports with the principles behind the right

to interstate travel. Whether an individual travels across many

states or a single county, the right to be free to enter, leave, or

remain in a place, and to be treated as an equal with current

denizens, is a fundamental liberty guaranteed by our

constitution.

The State argues that nothing in § 692A.2A precludes

sex offenders from traveling into lowa from other states.

Defendants further contend that sex offenders who choose to

reside in lowa are treated the same as other sex offenders

regardless of whether the stay is temporary or permanent. As

such, the State alleges that § 692A.2A neither discriminates

against out of state travelers, nor does it infringe upon any scx

offender's right to travel. The Court disagrees. 2

On its face, § 692A.2A restricts a person from residing

within two thousand feet of a school or child care facility.

“Residence” is defined at lowa Code § 692A.1(8) as “the

place where a person sleeps, which may include more than

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one location, and may be mobile or transitory.” As the term is

defined, sleep is the only condition for establishing a

residence that would be subject to the two thousand foot

restriction. Thus, a person may have innumerable transitory

residences that are newly established each time he is

unfortunate enough to fall asleep. Literal application of the

Act would result in the great majority of the State’s hotels and

motels being restricted to traveling sex offenders. As well,

community centers such as homeless shelters and missions

will most likely be unavailable to sex offenders because of

location. A sex offender simply wanting to travel through the

State might be compelled to avoid lowa altogether lest he stop

for the night at an acquaintance’s home or a motel and thereby

establish an unlawful residence by unwittingly falling asleep.

Under § 692A.2A, sex offenders would appear to be able to

travel lowa freely only so long as they do not stop.

Beyond the literal extremes of the Act’s scheme, §

692A.2A prevents sex offenders from either moving into or

around the State. Those who wish to move into the State are

left with very few avenues for obtaining legal housing. Sex

offenders who established a residence in lowa before July 1,

2002, are unable to even consider changing residences lest

they lose their exempt status. As such, these individuals are

forced to remain-in dwellings th.: may be too small or

expensive, or because of any number of conditions that might

compel someone to seek out a new residence. lor all practical

purposes, the right to freely travel and move into or around

the State is almost nonexistent for persons subject to §

692A.2A. The Court. therefore, finds that § 692A.2A

infringes on Plaintiffs’ fundamental right to interstate and

intrastate travel.

2. — Strict Scrutiny Analysis

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Having found that lowa Code § 692A.2A interferes

with Plaintiffs’ fundamental right to family choice and

privacy, and the right to travel, the Court applies the “strict

scrutiny” standard of review. The burden now shifts to the

State to show that the Act is narrowly tailored to address a

compelling State interest using the least restrictive means

possible. See Roe v. Wade, 410 U.S. 113, 155-56 (1973)

(citations omitted).

Both sides agree that the State has a compelling

interest in protecting children from sex offenders. The State

argues that the law is narrowly tailored to meet this end

because the residency restriction creates a buffer zone around

schools and child care facilities, thereby reducing the

“precursor cvents” leading to re-offense and eliminating

nearby access to potential victims. The Court disagrees.

While resiricting the access sex offenders have to

children is likely to reduce the opportunity for re-offense, the

State has offered no evidence demonstrating that a two

thousand foot “buffer zone” around schools and child care

facilities actually protects children. Rather, the State's expert

witness, Dr. McEchron testified that the scheme could

actually prove detrimental to a sex offender's treatment

because the offender may become depressed after deciding

that society has given him no chance to rehabilitate. Both Drs.

Rosell and McEchron, and Dudley Allison testified that they

knew of no specific distance that would protect children. Dr.

Rosell further explained that the residency restriction would

not stop a determined offender from finding another victim.

Defendants produced no research showing the effect a

proximity restriction has on sex offender recidivism rates. In

the large meta-analyses. a number of variables are considered

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when reviewing recidivism, but proximity is not one of them.

The one study that has reviewed the effect of

restricting sex offenders from residing within a certain

distance from locations frequented by children reported its

findings unequivocally: “[t}here is no _ evidence...that

residential proximity to schools or parks affects re-offense.”

Pl.s’ Ex. 41 at 11. With nothing to suggest that restricting a

sex offender from living within two thousand feet of a school

or child care facility would actually protect children, the

Court tinds that § 692A.2A is not narrowly tailored to achieve

a compelling State interest.

The Act also fails to apply the least restrictive means

necessary to achieve its goal. As noted, the purpose of §

692A.2A is to protect children, yet the Act applies to all

relevant sex offenders without consideration of whether the

individual is actually a danger to the public. Risk assessments

produced by the lowa Department of Corrections show that

not all sex offenders are made alike. Defendants’ witness

Dudley Allison testified that he has no problem with certain

offenders living near schools or child care facilities because

he does not find those individuals a danger to re-offend in

such a situation. With the enormous restriction placed on the

offender, the State cannot justify applying the scheme to all

Plaintutts regardless of whether they pose a danger to the

community.

The Court finds that § 692A.2A cannot survive strict

scrutiny. There is no close fit between the restriction and the

intended purpose of protecting children. The Act also goes too

far in its attempt to meet a compelling State concern by

restricting all offenders without regard to the actual danger to

the community. The Court, therefore, holds that § 692A.2A

unconstitutionally infringes on Plaintiffs’ substantive rights

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under the Due Process Clause of the Fourteenth Amendment.

oo Procedural Due Process

The procedural arm of the Due Process Clause

imposes certain restrictions on government decisions that

deprive individuals of liberty or property interests. Mathews v.

Eldridge, 424 U.S. 319, 332 (1976). Specifically, before a

State may deprive an individual of a liberty or property

interest, the State must provide the individual with notice and

an opportunity be heard. /d. at 332-33. As the Court noted in

Mathews, *|t}he ‘right to be heard before being condemned to

suffer grievous loss of any kind, even though it may not

involve the stigma and hardships of a criminal conviction, is a

principle basic to our society.” /d. at 333 (quoting Joint Anti-

Fascist Comm. v. McGrath, 341 U.S. 123, 168 (1951)

(Frankfurter, J., concurring)).

Plaintiffs allege that § 692A.2A deprives them of their

right. to procedural due process under the [Fourteenth

Amendment because § 692A.2A provides no process to allow

for an individualized determination of danger to the

community, and the Act does not provide fair notice as to

circumstances under which an individual could be prosecuted.

Defendants argue that the only private interest at issue is

Plaintiffs’ “preference to live within a convenient distance

from work or other family, or in a more beneficial economic

circumstance.” and contend that the Court must balance this

interest against the State's interest in protecting its children.

Defs.” Br. at 13. First. the Court must query why sex

offenders should not be able to live in residences that are

affordable or convenient? Regardless, the Court rejects

Defendants’ proffered private interest as the Court has already

determined that § 692A.2A infringes on a fundamental right.

To determine the specific dictates of due process, the

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Supreme Court has identified three distinct factors for the

Court to consider: 1) “the private interest that will be affected

by the official action;” 2) “The risk of an erroneous

deprivation of such interest through the procedures used, and

the probable valuc, if any, of additional or substitute

procedural safeguards:” and 3) “the Government's interest,

including the function involved and the fiscal and

administrative burdens that the additional or substitute

procedural requirement would entail.” Mathews, 424 U.S. at

335.

As determined above, § 692A.2A infringes upon

Plaintiffs’ fundamental rights to travel and to privately make

decisions regarding family. Accordingly, the private interest

affected is significant. Currently there is no risk of erroneous

deprivation of the interests because it is denied to all who

meet the Act’s criteria. Thus there is no decision at all. As a

resu't, those who pose little or no danger to the public, or

those who have been cleared to live in a particular residence

by a supervising parole or probation officer, are deprived of

their right to live where and with whom they so choose.

Because the goal of § 692A.2A is to protect children, adding a

process that would allow for an individual determination of

whether 2 given offender poses a threat would greatly bolster

the procedural safeguard against unnecessary deprivation of

Plaintiffs’ fundamental rights. Lastly, in considering the cost

to the State to allow for a hearing process to determine risk.

the Court notes that the State currently has such a process in

place. Sex offenders are claSsified according to risk at the

time of their release from state custody. Because the

determination of whether the offender is classified as a high,

low, or moderate risk to re-offend affects a number of

registration requirements under lowa Code Chapter 692A, the

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District Court Opinion and Order - 02/09/04

Court is at a loss to understand why the State would do away

with these classifications when imposing the most severe of

restrictions on sex offenders. The Court, therefore, finds that

§ 692A.2A infringes upon Plaintiffs right to procedural due

process by failing to provide individuals with an opportunity

to be heard before depriving them of protected liberty

interests.

Plaintiffs further contend that § 692A.2A lacks the

notice required by procedural due process, and the Court

agrees. Procedural due process “insists that laws give the

person of ordinary intelligence a reasonable opportunity to

know what is prohibited, so that he may act accordingly.”

Grayned v. Rockford, 408 U.S. 104, 108-09 (1972). Under §

692A.2A, the burden is placed on the offender to ensure that

they are not living within a restricted area. Some, but not all

jurisdictions have developed maps to aid sex offenders in

procuring a residence. But, as Carroll County Attorney John

Werden testified, these maps are not meant to be accurate:

they are reasonable approximations to be used as a guide. As

well, Werden brought to light the fact that the Act provides no

guidance to the counties on how to implement or enforce the

law. Depending on where a county chooses to place the

origins for its circles, in the center or at the edge of the

property, an offender might live in violation of § 692A.2A

under a particular county's interpretation of the Act, while in

compliance in a county that employs a different standard of

measurement.

Enforcement of the law appears quite varied amongst

the several counties as well. In some counties, law

enforcement works with the offender to try and find suitable

housing, while in others, offenders are arrested for violating

the residency restriction without any prior warning. Law

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District Court Opinion and Order - 02/09/04

enforcement officials and sex offenders alike testified that

they were unsure of how to measure the distance and ended

up trying to gauge two thousand feet with an automobile

odometer. Taken together, a person of ordinary intelligence

faces an extremely difficult chalienge in trying to determine

whether his or her conduct is violative of the Act. As §

692A.2A deprives offenders of a liberty interest with

insufficient notice and no opportunity to be heard, the Court

holds that the Act violates the procedural component of the

Due Process Clause.

dD. Self Incrimination

In relevant part, the Fifth Amendment to the United

States Constitution provides that no person “shall be

compelled in any criminal case to be a witness against

himself.” U.S. Const. amend. V. The Supreme Court has long

held:

this prohibition not only permits a person to

refuse to testify against himself at a criminal

trial in which he is a defendant, but also

‘privileges him not to answer official questions

put to him in any other proceeding, civil or

criminal, formal or informal, where the

answers might incriminate him in_ fuiture

criminal proceedings.’

Minnesota v. Murphy. 465 U.S. 420, 426 (1984) (quoting

Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)).

Pursuant to lowa Code § 692A.2, sex offenders are

required to register their current address with the county

sheriff. Failure to provide this information constitutes an

aggravated misdemeanor for a first offense. and a class D

felony for subsequent offenses. See lowa Code § 692A.7. Ifa

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District Court Opinion and Order - 02/09/04

sex offender is living in violation of the two thousand foot

residency restriction, completing the registration would mean

admitting to a criminal act. Because the offender faces

criminal charges regardless of whether he completes the

registration, Plaintiffs argue that § 692A2A violates their

Fifth Amendment right against self-incrimination.

Defendants attempt to align this case to Pennsylvania

v. Muniz, 496 U.S. 582 (1990), wherein the Supreme Court

identified a “routine booking question” exception to Miranda

that provides that the government can elicit biographical

information without informing a suspect of his or her

Miranda rights, even where the information later turns out to

be incriminating. See Muniz, 496 U.S. at 589-97. In that case,

however, an impaired driver was videotaped while he was

being booked. /d. at 590. The videotape was later shown to

the finder of fact who based its conclusion that Nluniz was

impaired on his demeanor and responses to the booking

questions, not the answers to the questions themselves. /d. In

reaching its conclusion, the Court noted that Muniz did not

incriminate himself With the facts given as answers to the

booking questions, but by his appearance and mannerisms in

providing the answers. /d. at 593. In stark contrast to Muniz,

though, sex offenders who refuse to provide their current

address upon registering are subject to serious criminal

charges and substantial jail time. As well, here it is precisely

the fact attained by the offender's response that would

incriminate him. His demeanor is irrelevant.

To be afforded protection under the Fifth Amendment,

incriminating communications must be testimonial. /d. at 594.

“In order to be testimonial, an accused's communication must

itself, explicitly or implicitly. relate a factual assertion or

disclose information.” Doe vy. United States, 487 U.S. 201,

Oda

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District Court Opinion and Order - 02/09/04

210 (1988). Under the registration requirements of lowa Code

Chapter 692A, sex offenders living in violation of § 692A.2A

must cither provide information that explicitly admits the

facts necessary to prove the criminal act or refuse to register

and be similarly prosecuted. As such, the Court holds that

lowa Code § 692A.2A_ unconstitutionally requires sex

offenders to provide incriminating evidence against

themselves.

cz. Cruel and Unusual Punishment

Finally, Plaintiffs argue that § 692A.2A violates the

Eighth Amendment's guarantee against crucl and, unusual

punishments, made applicable to the states by virtue of the

Fourteenth Amendment's Incorporation Clause. A

punishment will be found to be cruch and unusual either

where it inflicts torture, or is otherwise barbaric. or where the

punishment inilicted is so excessively severe that it is

disproportionate to the offense charged. Coker v, Georgia.

433 US. 584, 591-92 (1977). Plaintiffs argue that the

residency restriction’s resemblance to the historical

punishment of banishment evidences the barbaric nature of

the punishment. Plaintiffs also argue that a lifclong residency

restriction for sex offenders is excessive in relation to the

crime The Court disagrees.

Although the effect of § 692A.2A carries with it a

strong resemblance to an order of banishment, the Act does

mt completely banish an individual. Morvover, the Court ts

not convinced that banishment is truly a barbaric punishment.

The list of cases cited by Plaintiffs to show when certain

states set aside banishment as a condition of probation would

appear to undercut, rather than to assist, Plaintiffs’ argument

because in none of the cases did the reviewing courts ever

completely reyect banishment as a condition of probation. See

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District Court Opinion and Order - 02/09/04

e.g State v. Muhammad, 43 P.3d 318, 323-24 (Mont. 2002)

(comparing decisions regarding banishment and holding that

condition at issue went beyond what was necessary); State v.

Franklin, 604 N.W.2d 79, 83 (Minn. 2000) (| gjeographical

limitations may be imposed as a probation condition, but the

condition must be reasonably related to the purposes of

probation”) (citations omitted). As the Supreme Court has

noted, “[sjevere, mandatory penalties may be cruel, but they

are not unusual in the constitutional sense, having been

employed in various forms throughout our Nation's history.”

Harmelin v. Michigan, 501 U.S. 957, 994-95. The Court,

therefore, finds that the residency restrictions are not

unconstitutionally barbaric or tortuous.

Plaintiffs next contend that the residency requirement

in § 692A.2A is. disproportionate and, therefore,

unconstitutional because the law makes no individual

determination for whether a given offender is a danger to the

community. Although this argument supports Plaintiffs’

position in other claims, it must fail under Eighth Amendment

Jurisprudence. The Supreme Court has identified an

“individualized capital sentencing doctrine” whereby ~

capital sentence is cruel and unusual under the Eighth

Amendment if it is imposed without an individual

determination that that punishment is ‘appropriate’—whether

of not the sentence is “grossly disproportionate,” id.. at 995

(citations omitted), but the Court has flatly refused to apply

the doctrine to anything other than capital sentences. See /d

See also Ewing v. California, 538 U.S. 11 (2003) (finding

California “three-strikes” law constitutional and not cruel and

unusual). Plaintiffs may consider a two thousand foot

residency restriction cruel or overly harsh, and many would

agree. Considered in light of the Eighth Amendment,

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District Court Opinion and Order - 02/09/04

however, the Court finds that § 692A.2A is not a cruel and

unusual punishment.

Vv. ORDER

The Court finds that application of lowa Code §

692A.2A on those Plaintiffs who committed their respective

crimes prior to July 1, 2002 violates the Ex Post Facto Clause

of the- United States Constitution. The Court concludes that

the Act unconstitutionally infringes upon Plaintiffs’

Fourteenth Amendment rights to substantive and procedural

due process. Furthermore, the Court finds that § 692A.2A

unconstitutionally requires sex offenders living in violation of

the law to provide incriminating testimony against themselves

in violation of the Fifth Amendment. Lastly the Court finds

that § 692A.2A does not violates the Eighth Amendment's

guarantee against cruel and unusual punishments.

Hlaving declared lowa Code § 692A.2A

unconstitutional, the Court hereby permanently enjoins

Defendants from enforcing the Act.

If ISSO ORDERED.

Dated this — 9th day of February, 2004.

—

/s/ Robert W. Pratt

ROBERT W. PRATT

U.S. DISTRICT JUDGE

97a

APPENDIX C_

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 04-1568

John Doe, |, on their own .

behalf and as representatives *

: of the class of all sex ’

al

offenders in the State of lowa:

John Doe, Il, ontheirown *

behalf and as representatives *

of the class of all sex

offenders in the State of

lowa; John Doe, Ill, on their *

own behalf and as °

representatives of the class *

of all sex offenders in the .

State of lowa, .

.

Appellees.

. Appeal from the

v. ° United States District

° Court for the

fom Miller, lowa Attorney * Southern District of

General; ’ lowa.

>

Appellant °

>

J. Patrick White, as °

QRa

Eighth Circuit Ruling - 04/29/05

representatives of the class

of all county attorneys in

lowa; Michael Wolf, as .

representatives of the class ° e

of all county attorneys in °

lowa, °

>

Defendants. °

Submitted: November 4. 2004

Filed: April 29, 2005

Before RILEY, MELLOY, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

In 2002. in an effort to protect children in lowa from

the risk that convicted sex offenders may reoffend in locations

close to their residences, the lowa General Assembly passed.

and the Governor of lowa signed, a bill that prohibits a person

convicted of certain sex offenses involving minors from

residing within 2000 fect of a school or a registered child care

facility. The district court declared the statute unconstitutional

on several grounds and enjoined the Attorney General of lowa

and the ninety-nine county attorneys in lowa from enforcing

the prohibition

Because we conclude that the Constitution of the

United States docs not prevent the State of lowa from

regulating the residency of sex offenders in this manner in

order to protect the health and safety of the citizens of lowa,

994

Eighth Circuit Ruling - 04/29/05

we reverse the judgment of the district court. We hold

unanimously that the residency restriction is not

unconstitutional on its face. A majority of the panel further

concludes that the statute does not amount to unconstitutional

ex post facto punishment of persons who committed offenses

prior to July 1, 2002, because the appellees have not

established by the “clearest proof.” as required by Supreme

Court precedent, that the punitive effect of the statute

overrides the General Assembly's legitimate intent to enact a

nonpunitive, civil regulatory ‘neasure that protects health and

safety.

lowa Senate File 2197, now codified at lowa Code §

692A.2A, took effect on July 1.2002. It provides that persons

who have been convicted of certain criminal offenses against

a minor, including numerous sexual offenses involving a

minor, shall not reside within 2000 feet of a school or

registered child care facility. lowa Code y 692A.2A(1)-(2).

The law does not apply to persons who established a

residence prior to July |, 2002, or to schools or child care

facilities that are newly located after July 1, 2002. /d §

692A.2A(4\(c). Violations of the statute are punishable as

aggravated misdemeanors. lowa Code § 692A.2A(3).'

The text of the statute provides as follows:

692A.2A Residency restrictions — child care facilities and

schools.

|. For purposes of this section, “person” means a person

who has committed a criminal offense against a minor,

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Eighth Circuit Ruling - 04/29/05

or an aggravated offense, sexually violent offense, or other relevant

offense that involved a minor.

2. Aperson shall not reside within two thousand feet of the

real property comprising a public or nonpublic elementary

or secondary school or a child care facility.

3}. A person who resides within two thousand feet of the

real property comprising a public or nonpublic elementary or

secondary school, or a child care facility, commits an

aggravated misdemeanor.

4. A person residing within two thousand feet of the real

property comprising a public or nonpublic elementary or

secondary school or a child care facility does not commit a

violation of this section if any of the following apply:

a. The person is required to serve a sentence ata

jail, prison, juvenile facility, or other correctional

institution or facility.

b. The person is subject to an order of

commitment under chapter 229A.

c. The person has established a residence prior

to || July 1, 2002, or a school or child care facility

is newly located on or [after] July 1.2002.

d. The person is a minor or a ward under a

guardianship.

lowa Code § 692A.2A. The term “residence” is defined as “the

place where a person sleeps, which may include more than one

location, and may be mobile or transitory.” lowa Code §692A.1(8).

Ola

Eighth Circuit Ruling - 04/29/05

Almost immediately after the law took effect, three named

plaintiffs — sex offenders with convictions that predate the

law's effective date — filed suit asserting that the statute is

unconstitutional on its face. The district court certified their

action as a class action, with a plaintiff class that includes all

individuals to whom lowa Code § 692A.2A applies who arc

currently living in lowa or who wish to move to lowa, except

for any person who currently is the subject of a prosecution

under § 692A.2A. The named plaintiffs, identified as various

“John Does.” had committed a range of sexual crimes.

including indecent exposure, “indecent liberties with a child.”

sexual exploitation of a minor, assault with intent to commit

sexual abuse, lascivious acts with a child, and second and

third degree sexual abuse, all of which brought them within

the provisions of the residency restriction. A defendant class.

including

This text is long and has been trimmed here. Open the source document for the complete record.