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Jane Doe v. Virginia Department of State Police, No. 11-1841

Decided April 12, 2013

The Fourth Circuit Court of Appeals affirmed the district court’s dismissal of the plaintiff’s claims challenging sections 9.1–900 et seq. and 18.2-370.5 of the Virginia Code, as well as the policy of the Spotsylvania County School Board (“the Board”) for implementing the Code, on the basis that the claims were not justiciable.

The plaintiff, Jane Doe (“Doe”), had a sexual relationship with a minor child who was a student under her supervision. For this Doe was convicted in 1993 of the felony of having carnal knowledge of a minor, without the use of force. Under the Virginia Code at that time, Doe was required to publicly register as a sex offender, but could after a certain period of time petition a Virginia circuit court for removal from the Registry. However, in 2008, an amendment reclassified Doe’s conviction as a “sexually violent offense.” Sexually violent offenders cannot petition for removal from the Registry and, therefore, remain on it for life. In addition, sexually violent offenders are forbidden from accessing any school property without a successful petition from both (1) a circuit court and (2) a school board or owner of a private daycare. Therefore, under this classification, Doe must first successfully petition a school to access any school property, specifically that of her eleven-year-old stepson and two biological children nearing school age. Without a petition, Doe cannot attend parent-teacher conferences or other school functions, nor can she drop off or pick up her kids from school. Doe contended that this would force her to home school the children. Although she did not actually attempt to petition the school, Doe challenged this requirement on the basis that she could not acquire such a petition without revealing her identity and thereby tarnishing her family’s reputation.

Rather than petitioning either a circuit court or the school board, Doe instead brought a complaint against the Superintendent of the Department and the Board, alleging violations of her substantive due process, procedural due process, associational, and free exercise rights. Most notably, Doe alleged that the defendants infringed upon her fundamental right to raise and educate her children and that the Board violated her right to procedural due process by failing to provide her with a procedure by which she may anonymously petition to enter school property. She petitioned the court to declare the reclassification and, therefore, its registration and petition requirements unconstitutional and to order the Board to implement an anonymous petition procedure.

The Court of Appeals reviewed de novo the district court’s dismissal of Doe’s claims for lack of ripeness and standing. To have Article III standing, Doe must have an (1) actual injury, (2) that is traceable to the conduct, and (3) likely to be redressed. Because Doe has not yet attempted to petition, the court found that the injury arising from the Board’s lack of an anonymous procedure was only hypothetical, rather than “actual or imminent.” The court did, however, recognize an actual injury to Doe as a result of the Superintendent’s making her reclassification publicly available in the Registry without affording her a challenging procedure. Therefore, the court did find the requisite injury for standing in Doe’s procedural due process claim against the Superintendent but not in her substantive due process claim against the Board. The court then addressed the standing requirements of traceability and redressability. Both prongs become problematic when third persons not party to the litigation must act in order for an injury to arise or be cured. Because the Virginia statute allows for third parties to grant her permission to enter the school properties, the court found that Doe could not establish either prong. Doe’s right to access school property depends on the school, rather than the court. Where she has not petitioned the school, which is the entity with final authority over the matter, the court’s relief might not redress Doe’s injury. Regarding the claim against the Board for lack of an anonymous petition procedure, the court also declined to find redressability. Even if such a procedure were implemented, the statute still requires court approval for a successful petition and, therefore, the Court of Appeals declined to find redressability where relief was dependent on an additional party. However, the court did recognize traceability and redressability where Doe’s injury was the reclassification itself.

The court then addressed the ripeness requirement, which is determined by balancing the fitness of the issues for judicial decision with the hardship to the parties of withholding court consideration. Because Doe had not yet petitioned, the court found that the issues were not fit for judicial decision. The court also found that the Virginia law would not cause her undue hardship. However, again the court did recognize ripeness of Doe’s procedural due process claim, where her injury arose from the reclassification itself, rather than a speculative petition process. But, even though the court recognized standing and ripeness of Doe’s procedural due process claim, it did not withstand Federal Rule of Civil Procedure 12(b)(6). The court cited to the Supreme Court’s holding in Conn. Dep’t of Pub. Safety v. Doe requiring the registry information for all sex offenders to be publicly disclosed- whether the offenders have been proven dangerous or not.

Full Opinion

– Sarah Bishop