Kelsey v. Sherman

Background

Michael N. Kelsey, who litigated without a lawyer, sued Christopher Sherman, identified as a Board Examiner of the New York State Board of Examiners of Sex Offenders, and New York State Governor Kathy Hochul. He brought the action under 42 U.S.C. § 1983, a federal law allowing certain constitutional claims against state officials. He alleged that New York’s Sex Offender Registration Act (SORA) violated the Fourteenth Amendment’s substantive due process and equal protection protections.

Kelsey had been convicted after trial of sex offenses involving two fifteen-year-old minors. He was sentenced to seven years in prison and ten years of post-release supervision. He was certified as a sex offender, later designated a sexually violent offender, and assigned a SORA risk level of 2. He challenged SORA’s certification, registration, and public-notification requirements. He also alleged injuries involving a 1,000-foot school residency restriction, limits on travel while on parole, and exclusion from prison job-training programs.

The defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) concerns the court’s subject-matter jurisdiction, including standing. Rule 12(b)(6) tests whether the complaint plausibly states a legal claim.

New claims raised in opposition papers

Kelsey attempted to add First Amendment and procedural due process claims in his opposition to the motion. The court declined to treat those as claims in the existing complaint because they were raised for the first time in briefing. The court dismissed those claims without prejudice and later allowed Kelsey an opportunity to reframe them in an amended complaint.

Standing

The court held that Kelsey had standing to challenge SORA’s certification, registration, and notification requirements. He alleged that those requirements were applied to him, required him to register or face criminal prosecution, and made his information available to the public.

The court held that he lacked standing to challenge SORA based on several other alleged injuries. The school-residency restriction came from the separate Sexual Assault Reform Act and applied to him because of his convictions and parole status, not because of his SORA risk level. The court also found that the job-training exclusions resulted from New York Department of Corrections and Community Supervision policies or a contract, and were not fairly traceable to Sherman or Hochul or to the SORA provisions being challenged. Similarly, the intrastate travel restriction resulted from a Department of Corrections and Community Supervision directive that applied to certain high-risk parolees, including people classified as discretionary sex offenders, whether or not they were subject to SORA.

Equal protection claim

The court dismissed Kelsey’s equal protection claim. He alleged that sex offenders were treated differently from people convicted of non-sex offenses. The court held that those groups were not similarly situated because they had been convicted of different crimes. As a result, Kelsey did not plausibly allege the comparison required for his claimed equal protection theory.

Substantive due process claim

Substantive due process protects against government action that is arbitrary, oppressive, or shocking in a constitutional sense. The court analyzed Kelsey’s claim under the Fourteenth Amendment rather than the Eighth Amendment, even though he characterized SORA as punitive.

The court held that SORA’s certification, registration, and notification requirements were not punishment. It relied on decisions concluding that SORA’s registration and notification provisions serve public-safety purposes and that certification is distinct from the criminal sentence and operates by law after conviction. Because Kelsey did not plausibly allege that SORA infringed a fundamental right, the court applied rational-basis review, which asks whether the law is reasonably related to a legitimate government objective.

The court concluded that SORA’s requirements satisfied that test. It found that requiring certification, monitoring offenders through registration, and notifying the public were reasonably related to New York’s stated goals of addressing the risk of repeat sex offenses, protecting vulnerable populations, and helping identify and monitor sex offenders. The court therefore dismissed the substantive due process claim.

Leave to amend and disposition

The court found that repleading the substantive due process and equal protection claims would be futile and did not grant leave to amend those claims. It nevertheless granted Kelsey leave, though it did not require him to use it, to file an amended complaint asserting only First Amendment and Fourteenth Amendment procedural due process claims. The amended complaint had to replace, rather than supplement, the existing complaint and was due by June 30, 2023.

The court granted the motion to dismiss and dismissed all of Kelsey’s claims. If Kelsey did not file an amended complaint by the deadline, the court stated that it would enter judgment in the defendants’ favor and close the case. The court also certified that an appeal would not be taken in good faith and denied fee-free appeal status.