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Pittman v. Strange

United States District Court, S.D. Alabama, Southern Division

September 22, 2014

LUTHER STRANGE, in his official capacity as Attorney General of the State of Alabama, and JOHN RICHARDSON, [1] in his official capacity as Acting Director of the Alabama Department of Public Safety, Defendants.


CHARLES R. BUTLER, Jr., District Judge.

This matter is before the Court on a motion for judgment on the pleadings or, alternatively, motion for summary judgment, filed by the Defendants (Doc. 31), Plaintiff's response (Doc. 37) and Defendant's reply (Doc. 39). After due consideration of all issues raised, the Court finds that the motion is due to be granted.

I. Factual & Procedural Background

Plaintiff William Henry Pittman is a convicted sex offender. In 1989, Pittman pled guilty in the United States District Court for the Southern District of Mississippi to a Federal offense-Transportation of a Minor for Sexual Purposes.[2] In 2002, Pittman moved to Alabama where he opened a small loan business, Cash-N-A-Dash. In January 2012, he was indicted in this district for failure to register as a sex offender, in violation of the Federal Sex Offender Registration and Notification Act (SORNA). See Criminal No. 12-00014-CG-C, Doc. 1. In June 2012, Pittman was also indicted on a charge of possession of a firearm by a convicted felon. See Criminal No. 12-00155-WS-C. Pittman pled guilty to the latter charge, and the failure-toregister charge was dismissed. Pittman was sentenced to 10 months in prison. When he was released from prison in 2014, Pittman was forced to relocate his residence due to its proximity to a school.[3] As a convicted sex offender, Pittman is subject to the requirements of the Alabama Sex Offender Registration and Community Notification Act (ASORCNA), Ala. Code §§ 15-20A-1, et seq. (1975, as amended).

In his complaint seeking declaratory judgment, Pittman challenged the constitutionality of ASORCNA. Specifically, Plaintiff contested "the procedure used [by the Defendants] to determine the Plaintiff... to be a foreign jurisdiction convicted sex offender" as well as "the Defendants' final determination that Pittman is non-compliant with Alabama's sex offender registry[, ] administrative code and Alabama statute." (Compl. ¶ 1, Doc. 1.) Defendants filed a motion to dismiss the complaint for failure to state a claim on which relief can be granted. The Court granted the motion to dismiss as to Plaintiff's due process and equal protection claims but denied the motion as to Plaintiff's ex post facto challenge.

That claim, as set fort in the compliant, is:

[ ] The Defendants are attempting to enforce a law which was enacted after Pittman's guilty plea in 1998. The laws [sic] sought to be enforced by the Defendants were enacted after Pittman leased his business property in approximately 2001-2002. It is an ex post facto law. The question becomes is it a permissible ex post facto application of law? The test of whether an ex post facto law is permissible is whether or not the application of the ex post facto law is punitive in nature versus a function of public safety.
[ ] Plaintiff can demonstrate the application of the law to his specific set of facts is punitive. The application of law to Pittman will expose him to criminal prosecution for reported non-compliance. Additionally application of the law by the Defendants will deprive Pittman's liberty and property to which he was rightfully entitled before the law's enactment. Pittman acted in reliance on the law as it existed at the time he established his business and its location. If an ex post facto law is applied in such a way as to be punitive in nature, then it is violations the [sic] the Constitution. Mir. Pittman requests a trial on the merits in which he can present evidence of the punitive effect of the ex post facto law.

(Compl., ¶¶ 19-20, emphasis added.) The Court interpreted Plaintiff's claim to assert only an as applied' ex post facto challenge to ASORCNA." (Order at 11 n. 5, Doc. 14.)

In denying the motion to dismiss, this Court applied the Supreme Court's ex post facto analysis as set forth in Smith v. Doe, 538 U.S. 84 (2003), a case involving Alaska's sex offender notification act:

The first part of the Supreme Court's ex post facto analysis in Smith is purely legal. Initially, the Court "must ascertain whether the legislature meant the statute to establish civil proceedings." Smith, 538 U.S. at 92 (quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997)). Obviously, if the intent was punitive, then the Ex Post Facto Clause prohibits retroactive application. Id. If the legislature intended to create "a regulatory scheme that is civil and nonpunitive, " then the Court must determine whether the law is "so punitive in either purpose or effect" as to render it a criminal penalty. Id. The Supreme Court has cautioned that "only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Id. (quoting Hudson v. United States, 522 U.S. 93, 100 (1997)) (internal quotations omitted).

(Order at 12.) Applying that first step of the Smith analysis, the Court concluded that the Alabama Legislature's clear intent in enacting ASORCNA "was to create a regulatory scheme to protect the public and promote child safety." (Id. at 13.) With regard to the second step, the Court reasoned that "the inquiry also involves factual determinations" because "[t]he existence of a burden of proof implies the presentation of evidence." (Id. at 14.) At the initial pleading stage, the Court found Plaintiff's complaint stated a plausible "as-applied" ex post facto claim based on the assertion that ASORCNA's restrictions would require Plaintiff to move his home and business.

II. Issues Presented

Defendants seek judgment on the pleadings because, they argue, "the case for outright dismissal of Pittman's ex post facto claim is far more compelling an the Defendant's articulated in their short motion to dismiss." (Defs.' Br. 3, Doc. 34.) In particular, Defendants point out, first that the factual component of the ex post facto analysis must be viewed with great deference to the legislative intent and, second, the facts to be considered are "legislative facts of which the Court may take judicial notice." (Id.) Alternatively Defendants argue that summary judgment is appropriate because the facts upon which Plaintiff relies do not satisfy the heavy burden of proof necessary to transform a civil regulatory scheme into an ex post facto criminal punishment.

In response, Plaintiff argues that the motion for judgment on the pleadings is due to be denied because the pleadings have not changed since the Court ruled on the motion to dismiss. With regard to the motion for summary judgment, Plaintiff says there is "[a] mountain of evidence" that proves "that the application of ASORCNA is punitive in effect so as to overcome the legislative label of non-punitive'." (Pl.'s Br. 6, Doc. 37.) Further, Plaintiff points out that this case is "an outlier. It presents such an unusual pattern of facts that a ruling in [Plaintiffs favor is almost certain not to open the door for cases to follow unless they have similarly unique circumstances." (Id. 6.)

As discussed below, the ex post facto claim Plaintiff asserted in his complaint is actually different from the ex post facto claim Plaintiff has argued in his summary judgment response. Judgment on the pleadings is due to be granted as to the ...

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