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Eric Bacon v. Tom Neer

February 1, 2011

ERIC BACON, PLAINTIFF - APPELLANT,
v.
TOM NEER, ST. CHARLES COUNTY SHERIFF; JAMES KEATHLEY, COLONEL, SUPERINTENDENT MISSOURI STATE HIGHWAY PATROL, DEFENDANTS - APPELLEES.



Appeal from the United States District Court for the Eastern District of Missouri.

The opinion of the court was delivered by: Loken, Circuit Judge.

Submitted: September 20, 2010

Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.

This is an interlocutory appeal from the denial of a preliminary injunction. Eric Bacon pleaded guilty to possession of child pornography in 2004, before the Missouri Sex Offender Registration Act ("SORA") was amended to require registration for that offense. See Mo. Rev. Stat. § 589.400.1(2). In 2007, the Supreme Court of Missouri held that requiring a sex offender to register under SORA on account of a crime that predated the statutory requirement violates the prohibition against a law "retrospective in its operation" in Article I, § 13 of the Missouri Constitution. Doe v. Blunt, 225 S.W.3d 421, 422 (Mo. banc 2007). Therefore, for purposes of this appeal, it is undisputed that Bacon, a Missouri resident, has no duty to register under § 589.400.1(2).

In 2006, Congress enacted the Sex Offender Registration and Notification Act ("SORNA"), which provides that "a sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides." 42 U.S.C. § 16913(a). It is undisputed that Bacon is a "sex offender" under SORNA. See 42 U.S.C. §§ 16911(1), (5)(A)(ii), 16911(7)(G). Unlike SORA as construed in Blunt, SORNA's registration requirements apply to persons whose predicate offenses predate its enactment. See 42 U.S.C. § 16913(d); 28 C.F.R. § 72.3; United States v. May, 535 F.3d 912, 918-19 (8th Cir. 2008), cert. denied 129 S. Ct. 2431 (2009).*fn1

SORA also requires registration in Missouri by any person who is "required to register under . . . federal . . . law." Mo. Rev. Stat. § 589.400.1(7), .2. Failure to comply with this requirement is a class D felony. § 589.425.1. In 2009, the Supreme Court of Missouri held that sex offenders who are required to register under § 589.400.1(7) because of the "independent registration requirement under SORNA" are not "exempt from registration by virtue of article I, section 13 of the Missouri Constitution." Doe v. Keathley, 290 S.W.3d 719, 720-21 (Mo. banc 2009). Following this decision, the St. Charles County Sheriff's Department informed Bacon that he was required to register under SORA or face criminal prosecution.

Bacon then commenced this action against St. Charles County Sheriff Tom Neer and Colonel James Keathley, Superintendent of the Missouri State Highway Patrol. The complaint sought a preliminary injunction enjoining defendants from requiring Bacon to register under SORA and from "instituting criminal prosecution" against him for failing to register. After issuing a temporary restraining order, the district court*fn2 promptly held a preliminary injunction hearing. The parties disclosed that Bacon had been charged with failure to register in state court the day after this action was filed, and that the prosecutor had stayed the state criminal proceeding pending the district court's preliminary injunction ruling. The district court denied the requested injunction, concluding that Bacon's claim against Colonel Keathley is barred by the Eleventh Amendment, and that Bacon failed to establish either a threat of irreparable harm or a likelihood of success on the merits of his claims against Sheriff Neer. This interlocutory appeal followed.

We were advised at oral argument that Bacon has now registered as a sex offender under SORA, and the State has dropped its criminal charges against him. We therefore dismiss the interlocutory appeal as moot. For additional reasons, we remand with directions to dismiss the complaint.

I. The Preliminary Injunction Appeal Is Moot

An order denying a preliminary injunction is immediately appealable. 28 U.S.C. § 1292(a)(1). However, the appeal of an order denying a preliminary injunction becomes moot if the act sought to be enjoined has occurred. See CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 48 F.3d 618, 620-21 (1st Cir. 1995); Curtis Indus., Inc. v. Livingston, 30 F.3d 96, 97 (8th Cir. 1994). As mootness relates to justiciability and our power to hear a case, "we must consider it even though the parties have not raised it." Olin Water Servs. v. Midland Research Labs., Inc., 774 F.2d 303, 306 n.3 (8th Cir. 1985). Based upon St. Charles County and Missouri State Highway Patrol sex-offender public records, we take judicial notice that Bacon has registered. See Fed. R. Evid. 201(b), (c), & (f). Therefore, the act Bacon sought to enjoin (registration) has occurred, and his appeal from the denial of preliminary injunctive relief is moot.

II. The Merits of the Claims for Further Relief

Though Bacon's claims for preliminary injunctive relief are moot, the entire case may not be moot if "a favorable decision . . . would make it sufficiently likely that [Bacon] could remove his name and identifying information from the [Missouri] sex offender registry." United States v. Juvenile Male, 130 S. Ct. 2518, 2519 (2010) (quotation omitted). Though we typically remand to the district court to consider such issues, we may reach the merits of Bacon's claims for further relief. See 28 U.S.C. § 2106; Campaign For Family Farms v. Glickman, 200 F.3d 1180, 1186 (8th Cir. 2000). We exercise this power if the issues are purely legal, there are no factual disputes, the relevant analysis is substantially related to that preliminarily conducted by the district court, and rendering a final decision can save significant litigation expenses. Id. at 1186-87. This inquiry requires a closer look at Bacon's claims.

In support of the relief requested -- a declaratory judgment that SORNA is unconstitutional and a permanent injunction -- Bacon alleged that "the only way [he] can be required to register under Missouri law is through the provisions of SORNA," and that SORNA violates the Commerce Clause, the Ex Post Facto Clause, the Tenth Amendment, and his fundamental right to travel under the United States Constitution, as well as the federal Administrative Procedure Act. We have consistently rejected challenges to SORNA under the Ex Post Facto Clause, the Tenth Amendment, and the APA.*fn3 The right-to-travel contention has been rejected by two of our sister circuits*fn4 and is without merit on the facts of this case because Bacon is free to travel if he registers. Thus, we will discuss only his novel Commerce Clause allegations.

In May, we held that the federal criminal offense in 18 U.S.C. § 2250(a)(2)(B), part of SORNA, does not violate the Commerce Clause because the offense requires proof of travel in interstate commerce followed by a defendant's knowing failure to register. 535 F.3d at 921-22. In United States v. Howell, 552 F.3d 709 (8th Cir.), cert. denied, 129 S. Ct. 2812 (2009), we addressed a different Commerce Clause contention, that the § 2250 convictions at issue were invalid because SORNA's registration requirement, 42 U.S.C. § 16913(a), regulates purely non-economic, intrastate activity and therefore is beyond Congress's Commerce Clause power. We rejected the contention. While expressing doubt that § 16913(a) could be upheld under the Commerce Clause, we concluded that the statute was valid under the ...


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