United States District Court, D. Nebraska
A.W., a minor child, by and through JOHN DOE and JANE DOE, as Next Friends and Guardians, Plaintiffs,
STATE OF NEBRASKA; NEBRASKA STATE PATROL; DOUG PETERSON, Attorney General of Nebraska; THOMAS SCHWARTEN, Superintendent of Law Enforcement and Public Safety for Nebraska State Patrol; PAUL WOOD, County Attorney for Red Willow County; and GENE MAHON, Sheriff Red Willow County, Defendants.
MEMORANDUM AND ORDER
RICHARD G. KOPF, Senior District Judge.
Defendants have filed a motion to dismiss portions of Plaintiffs' amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted (Filing No. 25). The motion will be granted in part and denied in part.
1. Summary of the Pleadings
Plaintiffs seek declaratory and injunctive relief pursuant to 28 U.S.C. § 2201 and 42 U.S.C. § 1983. It is alleged in the amended complaint that "[a] petition was filed in the Juvenile Court of Anoka County, Minnesota in October of 2013 alleging criminal sexual conduct by Plaintiff A.W., which took place when [he] was 11 years old (Filing No. 24, ¶ 29); that "Plaintiff A.W. was sent to live with Plaintiffs John and Jane Doe in Red Willow County, Nebraska, after allegations were initially made in August of 2013, ... [and he] has resided in Red Willow County, Nebraska, since that time" (Filing No. 24, ¶ 30); that "[o]n or about July 18, 2014, Plaintiff A.W. was adjudicated delinquent for criminal sexual conduct in the Juvenile Court of Anoka County, Minnesota, and ordered, inter alia, to comply with Minnesota's predatory offender registration" (Filing No. 24, ¶ 31); that "[o]n or about October 22, 2014, Plaintiff A.W. completed a Minnesota Predatory Offender Registration Form thereby completing his obligation for registration under Minnesota's [Predatory Offender Registration Act (PORA)]" (Filing No. 24, ¶ 32); that "[p]ursuant to Minnesota's PORA, Plaintiff A.W. has not been subjected to public notification" (Filing No. 24, ¶ 33); and that "[t]he State of Nebraska has notified Plaintiff A.W. that [he] is subject to Neb. Rev. Stat. § 29-4003(1)(a)(iv) of Nebraska's Sex Offender Registration Act including public notification pursuant to the state's Sex Offender website maintained by the Nebraska State Patrol" (Filing No. 24, ¶ 34).
There are six named Defendants: (1) the State of Nebraska; (2) the Nebraska Attorney General; (3) the Nebraska State Patrol ("NSP"); (4) the NSP Superintendent; (5) the Red Willow County Attorney; and (6) the Red Willow County Sheriff. The State and the NSP argue that they are not proper parties.
Four constitutional claims are asserted. Plaintiffs allege that unless Defendants are enjoined from enforcing Neb. Rev. Stat. § 29-4003(1)(a)(iv) against Plaintiff A.W., they will (1) subject him to "cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution and Article I, section 9 of Nebraska's Constitution" (Filing No. 24, ¶ 38); (2) "violate [his] right to equal protection of the laws contrary to the Fourteenth Amendments [ sic ] to the U.S. Constitution and Article I, section 3 of Nebraska's Constitution" (Filing No. 24, ¶ 40); (3) "violate [his] right to procedural and substantive due process in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution and Article I, section 3 of Nebraska's Constitution (Filing No. 24, ¶ 42); and (4) violate "the privileges and immunities clause of the Article IV, Section 2, Clause 1 of the U.S. Constitution and Article I, section 16 of Nebraska's Constitution" (Filing No. 24, ¶ 44). Defendants argue that the first and third claims are not actionable.
2. The State Cannot Be Sued Under 42 U.S.C. § 1983
The State of Nebraska moves for the dismissal of all § 1983 claims against it because "[t]he State is not a person as that term is used in 42 U.S.C. § 1983 and that section does not create a cause of action against the State of Nebraska" (Filing No. 26, at p.3 (citing Sundberg v. Nebraska, No. 8:09CV228, 2009 WL 2948559, at *1 (D.Neb. Sep. 11, 2009)). "Plaintiffs do not take issue with Defendants' contention that 42 U.S.C. § 1983 does not create a cause of action against the State of Nebraska." (Filing No. 40, at p.2).
3. The State Has Not Waived Sovereign Immunity
Defendants additionally assert that "Plaintiff's [ sic ] First, Second, Third, and Fourth Causes of Action against the State of Nebraska and the Nebraska State Patrol are barred because the State of Nebraska, on behalf of its agencies and officials, has not waived its sovereign immunity from suit in federal court" (Filing No. 26, at p.3). Plaintiffs do not dispute that the State of Nebraska and the NSP are immune from suit in federal court, but they contend that "Eleventh Amendment immunity has been waived by the State of Nebraska through litigation conduct" (Filing No. 40, at p.2). Specifically, Plaintiffs claim sovereign immunity was waived when Defendants, in opposing Plaintiffs' motion to certify a question of state law to the Nebraska Supreme Court, argued that "[t]his Court's review" of the Constitutional questions "will determine this case." (docket no. 37)" (Filing No. 40, at p.2).
Plaintiffs argue that "a state seeking to prevent a state court from considering a state law question in favor of having a federal court resolve Constitutional questions is analogous to a state removing an action to federal court" (Filing No. 40, at pp.2-3 (citing Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 618-23 (2002), for the proposition that "[a] state waives immunity when it voluntarily removes an action to federal court.")). There is no merit to this contention. The State did not invoke federal court jurisdiction by opposing Plaintiffs' motion, and its legal argument was not a clear waiver of immunity. "[A] State's waiver of its Eleventh Amendment immunity through conduct in litigation must be unambiguous and evince a clear choice to submit its rights to adjudication by the federal courts." Consejo de Salud de la Comunidad de la Playa de Ponce, Inc. v. Gonzalez-Feliciano, 695 F.3d 83, 103 (1st Cir. 2012) (internal quotation marks and alterations omitted). "[A] state does not waive its immunity... by defending a case in federal court so long as it asserts its Eleventh Amendment sovereign immunity defense in a timely manner." U.S. v. Metropolitan St. Louis Sewer Dist., 578 F.3d 722, 725 (8th Cir. 2009).
4. Plaintiffs Have Sufficiently Alleged an Eighth Amendment Claim
Defendants argue that count one of the amended complaint, involving a claim of cruel and unusual punishment in violation of the Eighth Amendment (and Neb. Const., Art. I, § 9),  must be dismissed because "SORA's registration and notification requirements do not constitute punishment" (Filing No. 26, at p.4, quoting Doe v. Nebraska, 734 F.Supp.2d 882, 922 (D. Neb. 2010)). Plaintiffs seek to distinguish Doe v. Nebraska because in that case this court "was not faced with the specific and unique circumstances present when a juvenile with a juvenile adjudication is subjected to sex offender registration and notification" (Filing No. 40, at p.3). They argue that "[i]n determining whether a statute constitutes punishment, courts in applying the Kennedy factors consider whether the sanction appears excessive in relation to the alternative purpose assigned.'" (Filing No. 40, at p.3, quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)). In Doe v. Nebraska, I ruled that a trial was necessary to determine the constitutionality of certain amendments to SORA that were foreign to the federal Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. §§ 16901-16991, because there were genuine issues of material fact as to whether those amendments were so punitive either in purpose or effect as to negate the legislative intention to deem them civil. See 734 F.Supp.2d at 897-99.
Considering that SORNA does not apply to persons adjudicated delinquent as juveniles if they were less than 14 years old at the time of the offense, or if the offense was not at least comparable to aggravated sexual abuse, see 42 U.S.C.§ 16911(8),  and considering also that Plaintiffs allege that"[t]he State of Nebraska opted not to have juvenile offenders [who are adjudicated delinquent in Nebraska] comply with sex offender registration and not to list [such] juvenile offenders on its sex offender registry website" (Filing No. 24, ¶ 22),  I conclude that Plaintiffs' Eighth Amendment claim should not be dismissed without allowing them to present evidence concerning the alleged punitive effect of Neb. Rev. Stat. § 29-4003(1)(a)(iv) as applied to Plaintiff A.W. Cf. United States v. Under Seal, 709 F.3d 257, 266 (4th Cir. 2013) (registration requirements of SORNA, as applied to juvenile who was adjudicated delinquent for committing aggravated sexual abuse, did not violate Eighth ...