CINCINNATI (CN) — The entirety of Tennessee’s sex offender registry law cannot be thrown out because a handful of requirements may be unconstitutional, the Sixth Circuit ruled Wednesday.
In its decision the court vacated an injunction granted by U.S. District Judge Aleta Trauger and asked the Clinton appointee to tailor relief for a class of convicted sex offenders to target only the registry requirements that do not pass constitutional muster.
A class of sex offenders convicted before 1995 sued the state in 2021. They say recent changes to registry requirements violate their constitutional rights, including increased registration fees; the exclusion of sex offenders within 1,000 feet of schools and playgrounds; and a prohibition on their working or living within 1,000 feet of a school.
Trauger agreed with the class and granted its request for an injunction to invalidate the entire statutory scheme, which led to an appeal from Republican Governor Bill Lee and Tennessee Bureau of Investigation Director David Rausch.
On Wednesday, the three-judge panel that heard the case in December 2023 dismissed Lee from the action, having determined he is not in a position to enforce the challenged laws despite what the plaintiffs called his “general duty to uphold the law.”
“While it is true that the governor possesses power as the chief executive to remove employees from their posts, or at least to initiate such proceedings, this does not give him a role in the enforcement of individual criminal laws beyond his general ‘take care’ duty,” Senior U.S. Circuit Judge Eugene Siler wrote for the panel.
“Plaintiffs’ argument is simply another way of invoking the governor’s general executive powers, which are insufficient alone to confer standing.”
The class also failed to properly trace any injury to Lee, the court ruled, and could not suggest any order the court could give to Lee that would grant them relief.
Siler, a George H.W. Bush appointee, wrote that while the class has standing to pursue its constitutional claims against Rausch, “the Supreme Court has found that retroactive laws requiring sex offenders to report to law enforcement and register are constitutional.”
He cited a previous Sixth Circuit decision that upheld a “nearly identical challenge” to Tennessee’s statutory scheme, but recognized significant changes to the law after that appeal allow for a fresh look at the retroactive punishments.
The plaintiffs cited the 2016 Sixth Circuit decision in Snyder enjoining the enforcement of several amendments to Michigan’s sex offender registry laws, and while the panel agreed that provisions similar to those struck down in the Snyder case would fail, granting relief doesn’t require invalidating the entire scheme.
“Comity in our federal system demands that we not needlessly upend the work of Tennessee’s elected legislature,” Siler wrote.
“Elision is appropriate here because the Tennessee legislature clearly would have ‘enacted the act in question with the unconstitutional portion omitted.’ In fact, that is exactly what they did,” he continued.
“To elide the statute, the district court must look at each restriction, compare it to [previous court] guidance … and issue a remedy tailored to the statute. While technical and potentially difficult, such challenges do not make elision impossible or require the court to step into the shoes of the legislature.”
The case will be remanded to Trauger to allow the federal judge to determine the constitutionality of newly added provisions.
U.S. Circuit Judges John Nalbandian and Stephanie Davis, Trump and Biden appointees, respectively, also sat on the panel.