# Appendix — Doe v. Miller

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0289%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 1034

## Text

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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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)

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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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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

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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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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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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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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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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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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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~ 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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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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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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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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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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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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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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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 , . 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0289%3A2. Public record. Not legal advice.