Update on Ex Post Facto I and II Lawsuits

Following the legal challenges on the Ex Post Facto cases can be compared to riding a rollercoaster – first, be glad to see it moving, climbing ever so slowly up the first hill, then brace yourself for the ride…. plenty of ups and downs with negotiable turns and unexpected twists, and as an added surprise, the track splits into two.  As you approach the end of one track, you are thrusted onto another track and the climb begins again.

 

In 2018, the case of Does vs Swearingen was filed in the Southern District Court of Florida.  That lawsuit was nicknamed “Ex Post Facto Plus” because it challenged the registration requirement as violating the ex post facto clause, in addition to several other challenges (the “Plus”).  We expected that a win in that case would mean that any state law passed after the date of someone’s offense would not be applicable to them. For example, if the offense was July 25, 2009, then any state law passed after that would not apply to you. That was the intent of the original case, but the scope of the case changed as a result of defense challenges and judicial decisions leading up to the trials.

 

In 2019, FDLE challenged the original lawsuit based on a statute of limitations, claiming that the complaints by each plaintiff had to be made within four years of being placed on the Florida Registry. The attorneys for the Does (Plaintiffs) immediately appealed that decision, and at the same time they initiated a second lawsuit in which a single Jane Doe plaintiff was within the 4-year period.

 

Hence, we now had two separate lawsuits to follow and two separate tracks to ride out: Does vs Swearingen (Ex Post Facto I) and Harper vs Swearingen (Ex Post Facto II).  When Mark Glass replaced FDLE Commissioner Rick Swearingen in 2022, the cases were renamed as Harper vs Glass and Does vs Glass.

 

While the original Ex Post Facto Plus case (Does vs Glass) was in the Eleventh Circuit Court of Appeals, the Ex Post Facto II case (Harper vs Glass) was moving through the Federal Northern District.  In 2019 FDLE moved to dismiss all of their claims in that case as well. The judge granted FDLE’s motion on many of the claims, including the claim that the registration requirement violated the ex post facto clause, based on binding precedent. But he allowed the case to proceed on these claims: 1) that the 3-day restriction on travel, enacted in 2018, violates the ex post facto clause and 2) the 3-day restriction on travel violates the substantive due process clause.

 

The bench trial for the Harper vs Glass (Ex Post Facto II) was heard by Judge Robert Hinkle in Federal District Court, Tallahassee, with closing arguments on 11/15/2023.  Per the attorneys for Harper: “If we win on the ex post facto claim, it would mean that the 2018 provision, requiring in-person reporting of travel for as few as 3 days in the aggregate per year, would not apply to anyone whose offense was committed before it was enacted. If we win on the substantive due process claim, it would mean that the 2018 three (3)-day rule would not apply to anyone.”

 

Not only are WE anxiously awaiting for the judge’s decision [slowing down on track 1], but so is the judge in Miami.  In 2022, Does vs Swearingen (Glass) won the appeal and the Eleventh Circuit court remanded many of the claims back to the Southern District court.  There was an order issued last week, 11/20/2023, by Judge Williams, who has been presiding over the John Does case (Ex Post Facto I) in the Southern District of Florida [picking up speed on track 2]. You can read Judge Williams’ order here.  In summary, here is what the order does:

 

1) It grants FDLE’s motion to dismiss the state constitutional claims (claims raised separately under the state, rather than federal constitution) based on the doctrine of sovereign immunity.  In other words, a federal court does not have jurisdiction to decide a claim against the state brought under the state constitution.

 

2) It grants a stay of proceedings in the Southern District (Ex Post Facto I John Does case), until after the Northern District rules on Harper vs Glass (Ex Post Fact II).  That is because the 3-day travel restriction was raised in the Southern District case too. Therefore, a ruling from the Northern District — whether Harper wins or loses there — may affect the nature of the John Doe claims and the scope of trial in the Southern District.

 

Judge Williams has ordered both sides to let her know the status of the Northern District case within three (3) days of an order from that court, and the impact of that case on the John Does case in the Southern District.  Prepare for the ride on track 2!

 

While a win in either case may seem like a small prize, the legal landscape permits only a small prize — prior case law precludes wider relief at this time.  Three (3) lawsuits were filed in Florida challenging the registration statute within months after the 2018 enactment, including Does, because the 3-day restriction made a big difference in people’s lives.

 

The attorneys for Does had argued vigorously in their response to the motion to dismiss, trying to distinguish their case from early prior case law precluding ex post facto claims. They pointed out that the prior case law involved much less restrictive versions of the registration statute, and in the years since, the statute had steadily grown more punitive.  But in October 2022 (after the Harper vs Swearingen case was filed), the Eleventh Circuit Court of Appeals, the federal appeals court for cases from Florida, Georgia and Alabama, upheld Alabama’s registration statute — which is similar to Florida’s in many respects — against an ex post facto challenge.  That case was McGuire v. Marshall.

 

McGuire v Marshall specifically addressed the Alabama travel restriction, which, like Florida’s, requires in-person reporting for 3+-day trips. In summary judgment proceedings, FDLE argued that McGuire v. Marshall meant we lost even the 3-day challenge. But the attorneys for Harper argued that the Alabama 3-day rule is materially distinguishable from Florida’s. The judge denied FDLE’s motion for summary judgment and allowed Harper to proceed to trial on that challenge.

 

McGuire v Marshall is regarded as eliminating the prospect of another ex post facto challenge to the statute as a whole for the foreseeable future. In the meantime, we can target individual provisions that are especially punitive. If Harper prevails, it makes good sense to challenge other specific provisions, which will be discussed at another time.

 

It is most important to recognize the ground that has been gained, Harper vs Glass may be the first to get to trial in a Florida federal court since the registration statute was passed. That is a win in itself for registered citizens as they will finally have their day(s) in court on an especially punitive provision of the statute.

 

The heavy burden of proof is placed on us, and courts almost invariably rule against registrants. But with courageous plaintiffs, expert witnesses, and support from our members and advocates, we remain confident that the strong, knowledgeable legal team representing them will make the very best case they can.

 

As we prepare for the Does vs Glass trial in the Federal Southern District Court in Miami, it is imperative that we build our legal fund to meet the 2023 goal.  This is the time to donate what you can.

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