John Doe, I v. Doug Peterson, Attorney General of State of Nebraska in his official capacity

United States Court of Appeals
For the Eighth Circuit
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No. 21-1680
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John Doe, I; John Doe, II,
lllllllllllllllllllllPlaintiffs - Appellants,
John Doe, III,
lllllllllllllllllllllPlaintiff,
John Doe, IV; John Doe, V,
lllllllllllllllllllllPlaintiffs - Appellants.
v.
Doug Peterson, Attorney General of State of Nebraska in his official capacity;
John A. Bolduc, Superintendent of Law Enforcement and Public Safety for the
Nebraska State Patrol, in his official capacity
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 10, 2022
Filed: August 5, 2022
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Before COLLOTON, WOLLMAN, and SHEPHERD, Circuit Judges.
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COLLOTON, Circuit Judge.
Nebraska requires persons who enter the State to register as sex offenders in
Nebraska if they are obliged to register as sex offenders by another jurisdiction. This
requirement applies to persons who committed their offenses as juveniles. Four
Nebraska residents who committed sex offenses in other States as juveniles brought
this action. They alleged that the registration requirement violated their rights to
travel and to equal protection of the laws, because Nebraska does not impose a
comparable requirement for persons who committed offenses as juveniles in
Nebraska. The district court* concluded that the registration requirement did not
implicate the sex offenders’ right to travel, and that the requirement was rational and
consistent with equal protection. We affirm.
I.
In 1996, Nebraska enacted the Sex Offender Registration Act, Neb. Rev. Stat.
§ 29-4001 et seq. In its current form, see id. §§ 29-4002, 29-4004, the Act requires
registration of sex offenders who reside, work, or study in Nebraska, and fall into any
of three categories: those who committed an enumerated offense in Nebraska, id.
§ 29-4003(1)(a)(i), (b)(i), (c)(i), (d)(i), those who committed an offense in another
jurisdiction that is “substantially equivalent” to one of the registerable offenses, id.
§ 29-4003(1)(a)(ii), (b)(ii), (c)(ii), d(ii), or those who must register as a sex offender
in another jurisdiction, id. § 29-4003(1)(a)(iv), (b)(iii). The third category,
attributable to what we will call the “other-jurisdiction provision,” is the primary
focus of this litigation.
*The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
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The Act’s registration requirements do not apply to juveniles who are
adjudicated delinquent in Nebraska’s juvenile courts. 272 Neb. Admin. Code § 19-
003.05C. The other-jurisdiction provision, however, does require an entrant to
register as a sex offender in Nebraska even if his registration “requirement in the
other state is based on a juvenile adjudication.” State v. Clemens, 915 N.W.2d 550,
559 (Neb. 2018).
The appellants in this case, four John Does, are sex offenders who moved to
Nebraska after committing offenses as juveniles in other jurisdictions. Each was
adjudicated delinquent in another State and required to register as a sex offender
under the law of that State. Based on the other-jurisdiction provision, the State Patrol
will require the Does to register as sex offenders in Nebraska.
In an effort to avoid registration in Nebraska, the Does sued the state attorney
general and the superintendent of the Nebraska State Patrol in their official capacities
under 42 U.S.C. § 1983. The Does asserted that the other-jurisdiction provision, as
applied, violated their rights to travel and to equal protection of the laws. The district
court granted summary judgment for the State. We review the court’s decision de
novo.
II.
The Does first assert that the other-jurisdiction provision unconstitutionally
burdens their right to travel. As travelers from other States who elected to become
permanent residents of Nebraska, they assert a right under the Privileges or
Immunities Clause of the Fourteenth Amendment to be treated like other citizens of
Nebraska. See Saenz v. Roe, 526 U.S. 489, 500 (1999).
In Hope v. Commissioner of Indiana Department of Corrections, 9 F.4th 513
(7th Cir. 2021) (en banc), the Seventh Circuit held that a comparable other-
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jurisdiction provision in Indiana’s Sex Offender Registration Act did not violate the
right to travel, even though an Indiana offender was not required to register. Id. at
525-26, 528. The court observed that the right to travel may apply to defeat either a
durational-residency requirement that temporarily limits a new arrival’s access to
some privilege or immunity, or a fixed-point residency restriction that permanently
distinguishes between groups of residents based on when they achieved residency in
the jurisdiction. Id. at 525, 527. But the court ruled that because the “trigger” that
required an offender to register in Indiana was the obligation to register in another
jurisdiction, not the duration or timing of his residency in Indiana, the disputed
provision was “neither a durational-residency requirement nor a true, fixed-point
residency scheme.” Accordingly, the Indiana provision did not offend the right to
travel. Id. at 526.
Nebraska’s other-jurisdiction provision, like Indiana’s, does not discriminate
based on residency. The provision requires an entrant to register in Nebraska if he
is obliged to register as a sex offender by another jurisdiction. Neb. Rev. Stat.
§ 29-4003(1)(a)(iv), (b)(iii). The requirement is not based on how long a person has
resided in Nebraska or on whether the person ever resided outside Nebraska. The
statute applies both to new arrivals and to lifelong Nebraska residents who commit
a sex offense while temporarily outside the State. See Skaggs v. Neb. State Patrol,
804 N.W.2d 611, 615 (Neb. 2011). As in Hope, the registration requirement in
Nebraska is triggered because the Does are required to register in another jurisdiction,
not because they changed their residencies from another State to Nebraska.
Although there may be a correlation between a registration obligation in
another State and a change in residence, the correlation is imperfect: some lifelong
Nebraskans may be required to register in other States and thus in Nebraska; some
new arrivals who were adjudicated delinquent in another jurisdiction may not be
required to register in Nebraska if the other jurisdiction does not require it. The
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registration requirement may well affect new residents more frequently, but a State
does not violate the right to travel by regulating in a way that causes a disparate
impact alone. “The right to travel simply is not implicated when there is no
discrimination based on the duration of one’s residency.” Connelly v. Steel Valley
Sch. Dist., 706 F.3d 209, 215 (3d Cir. 2013). The other-jurisdiction provision does
not discriminate in that way, and the district court correctly dismissed the claims
asserting an abridgment of the right to travel.
III.
The Does next assert that Nebraska’s other-jurisdiction provision violates the
Equal Protection Clause, because the statute treats them differently than sex offenders
who are adjudicated delinquent in Nebraska’s juvenile courts. A classification that
neither implicates a fundamental right nor involves a suspect class of persons is
constitutional if it is supported by a rational basis. FCC v. Beach Commc’ns, Inc.,
508 U.S. 307, 313 (1993). “This standard of review is a paradigm of judicial
restraint,” and “is not a license for courts to judge the wisdom, fairness, or logic of
legislative choices.” Id. at 313-14. A court must uphold a classification so long as
it is rationally related to any conceivable, legitimate state purpose. Birchansky v.
Clabaugh, 955 F.3d 751, 757 (8th Cir. 2020).
Nebraska has a legitimate interest in public safety and in limiting the number
of potentially dangerous sex offenders who can avoid its registry. In furtherance of
this interest, Nebraska requires offenders who must register in another State to
register in Nebraska. The Does complain that Nebraska irrationally requires
registration of juvenile delinquents from other States while it requires Nebraska
offenders to register only if they are tried as adults. In making that distinction,
however, Nebraska permissibly decided that its own process for sorting juvenile
offenders between juvenile and adult courts is a satisfactory means for determining
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which offenders present enough risk to warrant registration, while it declined to rely
on the same sorting process for offenders from other jurisdictions. Given the varying
criteria among the States for charging offenders as adults, and Nebraska’s lack of
control over the processes of other jurisdictions, the State rationally could err on the
side of safety and look instead to whether another jurisdiction has concluded that the
offender should be registered.
Nebraska also may permissibly consider the administrative burdens of adopting
a different registration scheme. Weinberger v. Salfi, 422 U.S. 749, 784 (1975). In
addition to requiring registration of offenders who are required to register in another
jurisdiction, Nebraska has elected to register anyone who committed an offense that
is “substantially equivalent” to an offense that requires registration in Nebraska, even
if the offender is not obliged to register in another State. See Neb. Rev. Stat. § 29-
4003(1)(a)(ii), (b)(ii), (c)(ii), (d)(ii). The Does suggest that Nebraska should be
required to conduct a “substantial equivalence” analysis for offenders who are
required to register in another jurisdiction, and to eliminate the registration
requirement for those whose offenses are not substantially equivalent to a Nebraska
registration offense. But in opting to perform an intensive “substantial equivalence”
inquiry only for offenders who are not required to register in another jurisdiction, the
State permissibly chose to limit the resources devoted to individualized consideration.
See Weinberger, 422 U.S. at 784. And in selecting which offenders to examine
individually, the State permissibly opted to focus on ensuring that higher-risk
offenders would be registered while allowing the possibility that some lower-risk
offenders also would be registered. The problems of governance often justify “rough
accommodations,” and classifications need not be “made with mathematical nicety.”
Dandridge v. Williams, 397 U.S. 471, 485 (1970) (internal quotation omitted).
As the district court observed, the other-jurisdiction provision also could be
justified as a measure to further national policy. In 2006, Congress enacted the
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federal Sex Offender Registration and Notification Act, which sought to establish “a
comprehensive national system” for registering sex offenders. 34 U.S.C. § 20901.
Nebraska’s other-jurisdiction provision closed a loophole that could be exploited by
sex offenders seeking to exclude information from state and federal registries by
relocating to Nebraska. Nebraska is hardly a full-throated champion for the more
demanding federal standard, given that it allows all Nebraska juvenile delinquents to
avoid registration. See id. § 20911(8). But a “law need not be in every respect
logically consistent with its aims to be constitutional,” Williamson v. Lee Optical of
Okla., Inc., 348 U.S. 483, 487-88 (1955), and we cannot say that a legislative decision
to further a legitimate policy interest in a less than fulsome way is irrational and
unconstitutional.
* * *
The judgment of the district court is affirmed.
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