Michael Richardson v. Xavier Becerra ( 2020 )

FILED
NOT FOR PUBLICATION
SEP 10 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL RICHARDSON, No. 19-16218
Plaintiff-Appellant, D.C. No.
2:17-cv-01838-JAM-AC
v.
WILLIAM P. BARR*, Attorney General, MEMORANDUM**
Defendant,
and
XAVIER BECERRA,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted September 8, 2020***
San Francisco, California
*
William Barr has been substituted for his predecessor, Jefferson
Sessions III, as Attorney General under Fed. R. App. P. 43(c)(2).
**
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Michael Richardson appeals pro se from the district court’s judgment
dismissing his action challenging the constitutionality of California’s Sex Offender
Registration Act (“SORA”), Cal. Penal Code §§ 290–290.024, and § 290.46
(“Megan’s Law”), which requires the California Department of Justice (“DOJ”) to
maintain an Internet website that contains sex offender registration information.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for
failure to state a claim under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) and
a judgment on the pleadings under Rule 12(c). See Berg v. Popham, 412 F.3d
1122, 1125 (9th Cir. 2005). We affirm.
1. Richardson has failed to state a claim that either SORA or § 290.46
violates his substantive due process rights. As is relevant to Richardson’s
substantive due process challenge to SORA, we have broadly held that “individuals
convicted of serious sex offenses do not have a fundamental right to be free from
sex offender registration requirements.” United States v. Juvenile Male, 670 F.3d
999, 1012 (9th Cir. 2012) (citing Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir.
2004) (per curiam)); see also Litmon v. Harris, 768 F.3d 1237, 1242 (9th Cir.
2014) (noting that the Supreme Court “has never held that the right to pursue a
2
profession is a fundamental right, such that any state-sponsored barriers to entry
would be subject to strict scrutiny” (citation and quotation marks omitted)). And,
as for Richardson’s challenge to § 290.46, this Court has declined to find that sex
offenders possess a “fundamental right to avoid publicity.” See Juvenile Male, 670
F.3d at 1012. Consistent with this precedent, we must uphold SORA and Megan’s
Law under rational basis review. Id. (rejecting substantive due process challenge
to SORNA because “[fundamental] rights are few,” and “[n]one of th[o]se rights
[we]re, or could be, asserted by defendants,” a group of juvenile sex offenders
subject to SORNA’s registration requirements); Tandeske, 361 F.3d at 597(holding that Alaska’s SORA, including its publication provision,1 “serve[s] a
legitimate nonpunitive purpose of public safety, which is advanced by alerting the
1
Tandeske controls the outcome here because § 290.46 is materially similar
to the Alaska publication provision upheld there and, in fact, subjects fewer
categories of information to mandatory publication. Compare Cal. Penal Code
§ 290.46(a)(1), (a)(2), (b)(1), (c)(1) & (d)(1) with Alaska Stat. § 18.65.087(b); see
also § 290.46(a)(1) (expressly prohibiting publication of “[t]he name or address of
the [registrant’s] employer and the listed person’s criminal history other than the
specific crimes for which the person is required to register”); Smith v. Doe, 538
U.S. 84, 91 (2003) (explaining that Alaska SORA did not “specify the means by
which the registry information must be made public,” but Alaska had “chosen to
make most of the nonconfidential information available on the Internet”).
3
public to the risk of sex offenders in their community” (citing Smith, 538 U.S. at102–03) (quotation marks omitted) (emphasis added)).2
Richardson repeatedly urges that SORA and § 290.46 are not rationally
related to the state’s interest in public safety because they are premised on
inaccurate data regarding recidivism rates among sex offenders. Richardson’s
pleadings do not plausibly allege that the legislature had “no legitimate reason for
its decision” to enact the registration and publication provisions at issue here.
Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1234 (9th Cir. 1994) (emphasis
added). Indeed, the legislature’s statements of intent indicate otherwise. See 1996
Cal. Legis. Serv. ch. 908, § 1(e) (A.B. 1562) (stating that SORA “w[ould] further
the governmental interests of public safety and public scrutiny of the criminal and
mental health systems that deal with these offenders”); A.B. 488, 2003–2004
Legis. Sess. (Cal. 2004), § 5 (“In order to ensure that members of the public have
adequate information about the identities and locations of sex offenders who may
2
Richardson disagrees with Tandeske’s substantive due process ruling, but
fails to point to intervening authority that authorizes a departure from its holding.
Absent such authority, Tandeske is binding on this panel. See Miller v. Gammie,
335 F.3d 889, 899 (9th Cir. 2003) (en banc).
4
put them and their families at risk, it is necessary that this act take effect
immediately.” (emphasis added)).3
2. Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003),
forecloses Richardson’s argument that “SORA is deficient because it provides no
mechanism whereby a registrant can be relieved of the requirement [to register] if
they prove they do not present a threat to the public.”4 There, the Supreme Court
rejected the very same procedural due process argument with respect to
Connecticut’s sex offender registration and Internet publication requirements
because they “turn[ed] on an offender’s conviction alone—a fact that a convicted
offender has already had a procedurally safeguarded opportunity to contest.” Id. at
7. The registration and Internet publication requirements at issue here likewise
turn exclusively on the fact of conviction. See §§ 290(c), 290.46; see also Doe v.
Cal. Dep’t of Justice, 173 Cal. App. 4th 1095, 1113 (2009) (“[R]egistration and
disclosure under California law is also based on the fact of conviction rather than
3
Richardson’s claim that, as applied to him, SORA and § 290.46 violate his
“right to be free from unreasonable, arbitrary, and oppressive” state action rehashes
his substantive due process claim and fails for the same reasons. See United States
v. Alexander, 48 F.3d 1477, 1491 (9th Cir. 1995) (“If a statute is not arbitrary, but
implements a rational means of achieving a legitimate governmental end, it
satisfies due process.”).
4
Richardson does not suggest that the criminal history information on his
Megan’s Law profile is inaccurate, nor for that matter does he challenge his
underlying conviction.
5
current dangerousness.”). Accordingly, Richardson’s procedural due process
challenge fails. See Tandeske, 361 F.3d at 596 (“Alaska’s sex offender statute
bases the registration and notification requirements on the sole fact of plaintiffs’
convictions. Accordingly, bound by Connecticut Department of Public Safety, we
hold that Alaska’s sex offender registration law does not deprive the Does of
procedural due process.”).
3. Because sex offenders do not belong to a suspect or protected class,
SORA and § 290.46 are subject to rational basis review for the purpose of equal
protection analysis. See Juvenile Male, 670 F.3d at 1009 (citing United States v.
LeMay, 260 F.3d 1018, 1030–31 (9th Cir. 2001)); accord Litmon, 768 F.3d at
1244. Having already concluded that the challenged laws have a rational basis in
the context of rejecting Richardson’s substantive due process challenge, we
conclude that his equal protection claims fail for the same reasons.
4. Richardson has failed to state a claim that either SORA or § 290.46
violates the Ex Post Facto Clause. See U.S. Const. Art. I, § 9, cl. 3. First,
assuming arguendo that Richardson’s appeal properly raises an ex post facto
challenge to SORA, that challenge fails under Hatton v. Bonner, 356 F.3d 955,
961–64 (9th Cir. 2004) (rejecting ex post facto challenge to SORA). Second,
Richardson has failed to allege facts demonstrating by the “clearest proof” that §
6
290.46 is “so punitive either in purpose or effect as to negate [California’s]
intention to deem it civil.” Id. at 963 (citation omitted); see also Smith, 538 U.S. at92–105; cf. also Cal. Dep’t. of Justice, 173 Cal. App. 4th at 1109 (“[Section
290.46], which is substantively identical to Alaska law, also serves a protective
rather than punitive purpose.”); People v. Presley, 156 Cal. App. 4th 1027, 1035
(2007) (“Based on . . . Smith, we conclude that the public notification requirements
of sex offender registration do not constitute punishment for purposes of the Sixth
Amendment.”).
5. Because neither SORA nor § 290.46 constitutes punishment in the
constitutional sense, we must reject Richardson’s contentions that those laws are
bills of attainder and inflict cruel and unusual punishment. See Smith, 538 U.S. at
97 (explaining that factors for determining whether a law constitutes punishment
under the Ex Post Facto Clause “have their earlier origins in cases under the [inter
alia] . . . Eighth Amendment, as well as the Bill of Attainder . . . Clause[]”).
6. The district court did not abuse its discretion in declining to consider
witness affidavits, reports, and newspaper articles that Richardson filed in
opposing dismissal and judgment on the pleadings. See United States v. Woods,
335 F.3d 993, 1000–01 (9th Cir. 2003) (setting forth standard of review); see also
Fed. R. Evid. 201(b) (requiring judicially noticed facts to be “capable of accurate
7
and ready determination by resort to sources whose accuracy cannot reasonably be
questioned”). Richardson requests judicial notice of these same materials and of
an amicus brief submitted in another case. We deny his request because the
contents of these materials are not judicially noticeable. See, e.g., Louis Vuitton
Malletier, S.A. v. Akanoc Solutions, Inc., 658 F.3d 936, 940 n.2 (9th Cir. 2011)
(declining to take judicial notice of amicus brief); Turnacliff v. Westly, 546 F.3d
1113, 1120 n.5 (9th Cir. 2008) (same as to witness declaration); Marks v. Crunch
San Diego, LLC, 904 F.3d 1041, 1053 n.10 (9th Cir. 2018) (same as to newspaper
articles); Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001) (same as to
“disputed facts stated in public records”).
7. Attorney General Becerra’s request for judicial notice is granted.
AFFIRMED.
8