Doe v. Miller: No Place to Live
Dark Justice -- Fifteen

Doe v. Miller: The Legal Theories

[Ed's note: This is the second installment on Doe v. Miller.  The first installment is located here.]

The plaintiffs in Doe v. Miller attacked Iowa City's law on several bases.  They argued that the law violated their procedural due process and substantive due process rights; that it violated their rights to travel interstate and intrastate; that it violated their privileges against self-incrimination and that it violated the Ex Post Facto Clause.

Procedural due process.
According Judge Colloton:

[T]he Does contend that they are deprived of notice required by the Constitution because some cities in Iowa are unable to provide sex offenders with information about the location of all schools and registered child care facilities, and because it is difficult to measure the restricted areas, which are measured “as the crow flies” from a school or child care facility.

Slip op. at 9.  The vagueness challeng rightfully failed because, unlike in a free speech case where a can be facially challenged, Broadrick v. Oklahoma, the plaintiffs could not prove that the law could never be constitutionally applied.  See Sabri v. United States ("Facial challenges [against criminal laws] are especially to be discouraged.")  Instead, the plaintiffs are limited to bringing as-applied challenges to the law. One practical problem to this holding is that the plaintiffs must not wait until being prosecuted before bringing an as-applied challenge to the law.

In theory, a plaintiff could bring a declaratory action after demonstrating that he could not determine how far his potential home was from a school.  But a judge would likely say: "If you can figure out - or obtain the help to - file this lawsuit, then obviously you can go to city hall to obtain surveyors' notes.  No injury, and thus no standing.  It's also not ripe: have your lawyer here take you to city hall where the surveyors' notes are located.  Case dismissed."  Forcing someone to do some leg work to comply with a law does not violate the notice requirement of due process. 

The plaintiffs also argued that their due process rights were violated because they were not given an individualized hearing before being excluded a school zone. But no case have ever held that due process requires that.  Indeed, a similar challenge failed in Connecticut Department of Public Safety v. Doe (holding that "due process does not require the opportunity to prove a fact that is not material to the State’s statutory scheme.")

Substantive due process.
The plaintiffs next argued that the law violated their right to familiar association.  Since the law prevented some sex offenders from living with family, they argued it violated their due process right to familial relationships.  The panel rejected this claim.  The panel seemed to say: "Very well.  Move."

While there was evidence that one adult sex offender in Iowa would not reside with his parents as a result of the residency restriction, that another sex offender and his wife moved 45 miles away from their preferred location due to the statute, and that a third sex offender could not reside with his adult child in a restricted zone, the statute does not directly regulate the family relationship or prevent any family member from residing with a sex offender in a residence that is consistent with the statute.

Slip op. at 12-13.  I'm not sure who's right.  On the one hand, the law does interfere with the right to live with one's family.  On the other hand, the plaintiffs can still live with relatives: they just can't live with them within 2,000 feet of a school zone.  Unlike free speech cases where laws that unintentionally but indirectly burden expressive association, Brandenburg v. Ohio, there isn't any caselaw (that I know of) holding that heightened scrutiny applies to indirect burdens on familiar relationships.  If you can correct, then feel free to do so.

Interstate and intrastate travel.
The next argument involved the right to travel interstate.  The plaintiffs argued that a person from, say, Minnesota, who wanted to travel across the border to move into Iowa would be precluded from doing so.  But as the Court noted in Saenz v. Roe, there are three components to the right to travel:

(1) “the right of a citizen of one state to enter and leave another state”;
(2) “the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state”; and
(3) “for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state.”

But the law does not prevent someone from "enter[ing]" or "leav[ing]" Iowa or from being treated as a "welcome visitor."  Visitation is fine: just don't stay in Iowa City.  And since in-state and out-of-state sex offenders were treated equally, the challenge failed.

What about the dormant Commerce Clause?
One argument not raised, but worthy of dicussion is the dormant Commerce Clause issue.  Namely, not allowing workers to move into Iowa City places an undue burden on interstate commerce.  As we know from positive Commerce Clause cases, almost anything is interstate commerce. 

Under dormant Commerce Clause jurisprudence, facially neutral regulations that unduly burden interstate commerce must meet heightened scrutiny.  Even post-Morrison, I think that the right of employees to travel interstate to work would be interstate commerce.  Morrison referred only to their productivity - not their right to travel qua travel.  Of course, the reviewing court weighing the burden on interstate commerce could well conclude that the local benefits outweigh the burden.  But it's still an issue worth exploring.  (New plaintiffs would be needed, though, as the current plaintiffs were in-state residents and thus wouldn't have standing.)

The panel also rejected the argument that the law violates the plaintiffs' right to travel intrastate.  This created a circuit split. Slip op. at 15-16 (collecting cases).  This could be the case for the Court to consider whether there is a right to travel intrastate.  In analyzing this question, it seems that the panel takes a wrong turn.

Judge Colloton wrote: "We find it unnecessary in this case to decide whether there is a fundamental right to intrastate travel under the Constitution, because assuming such a right is recognized, it would not require strict scrutiny []."  Slip op. at 16 (emphasis added). While it's true that it might not require strict scrutiny, the challenge would still be analyzed under some form of heightened scrutiny.  The judge also wrote that

the Iowa statute would not implicate a right to intrastate travel for the same reasons that it does not implicate the right to interstate travel. The Iowa residency restriction does not prevent a sex offender from entering or leaving any part of the State, including areas within 2000 feet of a school or child care facility, and it does not erect any actual barrier to intrastate movement.

Id. at 16-17.  This seems to misapply Saenz.  In Saenz, the plaintiffs were not denied the right to travel into California. Rather, they were denied the right to obtain the same welfare benefits that in-state residents enjoyed.  Under Saenz's third category, the right to be treated equally would seem to apply.  Here, plaintiffs who want to move to Iowa City are not being treated equally. Perhaps there are good reasons for disparate treatment.  But the panel glosses over the issue, instead pretending that there isn't any issue of equal treatment.

The panel split 2-1 on the Ex Post Facto Clause issue; and the self-incrimination issue is also interesting.  I've written enough, though, and look forward to seeing Professor Berman forthcoming post.

All in all, Doe v. Miller is a very interesting case.  You can find the full opinion by clicking here.