Ex Post Facto Plus II challenge Update

(Weekly Update #191)

Dear Members and Advocates,

This week’s update will provide a deeper dive into the order issued last week in the Ex Post Facto Plus II challenge.

We begin with some relevant history. Four years ago (yes, it’s been four), we helped initiate a lawsuit in Federal Court to challenge the retroactive application of certain requirements of the registry. It was our “Ex Post Facto Plus” challenge. The plaintiffs were registrants who have been on the list for decades and, almost every year since, have had new requirements and conditions added. The State filed a motion to dismiss, claiming that the plaintiffs were prevented from bringing this challenge because they were barred by the Statute of Limitations. In other words, they had four (4) years from the time they were added to the registry to bring a lawsuit challenging it, otherwise their proverbial ship had sailed.

There are two problems with that. First, if someone was added to the registry in 1997, there’s no way they could have foreseen the literally dozens of amendments that would be made over the years. And second, perhaps in 1997 when you had to report travel of 14 days or more it wasn’t such a burden, but in 2018 when it was reduced to three or more days, it was. Unless you were a psychic, there’s no way you could have brought a challenge to the 2018 version of the registry in 2001 (within 4 years of 1997). Even if you had, I imagine a lawsuit challenging your “prophetically predicted changes” would have been laughed out of Court.

The trial court wound up dismissing the lawsuit on that Statute of Limitations argument. That decision is currently on appeal in the 11^th Circuit. If we win, that case will be sent back to the trial court and proceed on the merits of the case, which haven’t even yet been considered (4 years later). To avoid the possibility of losing in the 11^th and not waste even more time, the attorneys brought a second lawsuit in the trial court with a different plaintiff. A plaintiff who was added to the registry within the last 4 years and didn’t have the Statute of Limitations issue that the first plaintiffs had. We called this lawsuit “Ex Post Facto Plus II”.

As they did with the first, the State filed a motion to dismiss this one as well. Ironically, they argued the plaintiff’s claims were not ripe because she had not been arrested or faced with certain restrictions yet. Bottom line, last week the court ruled that the case can proceed on it’s merits! This is a huge win because we don’t have to wait for one (or what could have been two) lawsuits to make their way through the appeals process only to go back to the starting line… we’ve already launched off the starting line!

So the title to the Order might seem a bit confusing. The Judge GRANTED the defendants motion to dismiss in part. It’s titled that way because it was the Defendant’s motion (and they did get some of the stuff knocked out). The in part language means that only some parts were dismissed but others will proceed. Notably, among those others include the reduction of the days to establish temporary addresses from 5 to three, which the judge chose to use in order to illustrate the “burdens” among others (yes, those were his words).

The other important language in the Order is the Judge’s finding that, “[t]he plaintiff is correct that statutory amendments since Doe v. Moore and similar decisions have ratcheted up the burdens imposed on offenders.” And that “Challenges to the new provisions are not foreclosed by decisions that did not address them.” This is huge! Many courts view Smith v. Doe as a blank check to impose any registration requirements they want, but the Judge recognized that this is not the case! A provision of registration that did not exist at the time Smith v. Doe was decided (now nearly 20 years ago) cannot possibly be found to be constitutional or unconstitutional because it wasn’t even considered at that time. This is precisely what the court found in the landmark Michigan/6^th Circuit decision, Does v. Snyder, and would be a tremendous victory for us.

A lot of readers are confused by the title of the Order and the fact that the judge did dismiss some of the ancillary claims that made up the “Plus” part of “Ex Post Facto Plus”, such as vagueness, tying registration to offense and not present risk, or stigma-plus, but do not forget that at it’s core, this is an Ex Post Facto challenge and that issue, which we have been fighting for our day in Court for more than four years already, will be heard! That is amazing.

Let’s not also forget the potential impact on pending legislation. Remember, our lawmakers keep trying to ratchet up the requirements and restrictions. If the Judge in this order wrote, “There is no obvious rational, non-punitive purpose for requiring an in-person report of a three-day trip, let alone three one-day trips. The most obvious purposes for such a requirement are punishment and discouraging sex offenders from traveling at all.” can you imagine what he would think of requiring registration of “parts of a day”?!? If any of you are contacting your lawmakers and asking them to oppose SB 1932, it might make sense to point out this order.

For the rest of the year (trial is January 2023), this case will be in high gear. Several more pretrial motions will likely be filed, there will be discovery, depositions, and all the other moving parts of an active litigation. If you’ve contributed to the Ex Post Facto Challenge fund and the Ex Post Facto sustainer fund, you are part of the reason for this victory and proof that we absolutely are making change!

In the coming days our annual dues letter will be sent out. We ask that you please return your membership dues ($60/year – $5/month) in the enclosed envelope (or you can pay them online here), because our organization is supported solely from these dues and donations. Membership dues are optional. We will never turn away a registrant or their family member because of an inability to pay and we continue to fight for the rights of all, regardless of whether they can afford to donate or not. But, for those of you who are fortunate enough to be able to, please help us continue to do the important work we are doing, because it is working.

Sincerely,

The Florida Action Committee

ANNOUNCEMENTS

New Calendar of Events – Keep up with Meet-and-Greets in your area, Support groups, Membership Calls, and other events.  Click Here for Calendar, and double click on the event to view details and RSVP instructions. For questions, contact membership@floridaactioncommittee.org or call 833-273-7325,Option 1.

• Meet and Greet in Broward County (Hollywood) Sat Feb 26th from 11:00am-2:00pm
• Monthly Membership Call Thursday March 3 at 8pm.  Topic: Registration Requirements    Guest speaker is a Public Defender.  Dial 319-527-3487
• Join the County Coordinator Team.  Only requirement is your desire to HELP us organize your county.  Training starts this week for new Coordinators.  Choose best day/time for you: Sun Feb13 at 7:00pm or Wed Feb16 at 7:00pm or Thu Feb17 at 1:00pm.  Dial (760) 548-9898.
• Family Support Group (by Zoom) Sat Mar 12th from 11:00am-1:00pmET

SOME HEADLINES FROM THE WEEK

 CALL TO ACTION ON SB 512 and HB 325

These two companion bills are of great concern as they both would require reporting stays at vacation rentals over 24 hours. What needs to be done: Call the legislators on the committees listed below that will be hearing these bills. You will need to give your name,…

Member Submission: Not Helpless

By Don I have repeatedly heard people report that only a small fraction of those on the registry in Florida have joined the Florida Action Committee. Some might suggest that this is because there are many who are unaware of the organization. Others suggest there may…

CALL TO ACTION FOR SB 1932

We are anticipating things to start heating up in Tallahassee for the remaining few weeks of the 2022 legislative session.  There are some FAC members who have been calling and emailing legislators these past two weeks, and we feel that some progress is being made in…

Brevard County Files Motion To Dismiss in Proximity Ordinance Lawsuit

Yesterday evening, Brevard County filed it’s Motion to Dismiss the Complaint and Response in Opposition of the Restraining Order. I’ve attached a copy of the MTD for your reading pleasure, the Response in Opposition is essentially the same. We spoke with attorneys