Case 4:12-cv RC-ALM Document 20 Filed 10/23/12 Page 1 of 8 PageID #: 221

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1 Case 4:12-cv RC-ALM Document 20 Filed 10/23/12 Page 1 of 8 PageID #: 221 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION AURELIO DUARTE et al, Plaintiffs, v. CIVIL ACTION NO. 4:12CV-169 JUDGE RON CLARK CITY OF LEWISVILLE, TEXAS, Defendant. ORDER SUSTAINING IN PART PLAINTIFFS OBJECTIONS TO REPORT AND RECOMMENDATION The court referred this case to United States Magistrate Judge Amos Mazzant pursuant to 28 U.S.C On August 14, 2012, Judge Mazzant entered a Report and Recommendation, recommending that Defendant City of Lewisville, Texas s Motion to Dismiss [Doc. #6] be granted because Plaintiffs lacked Article III standing. On August 27, 2012, Plaintiffs Aurelio Duarte et al filed their written objections to the Report and Recommendation. Doc. #19. Plaintiffs objections assert that the Magistrate Judge erroneously concluded they lack standing to challenge Defendant s sex offender residency restriction ordinance because Article III standing does not require Plaintiffs to show that they reside within 1,500 feet of premises where children commonly gather, or that they have incurred a fine for violating the ordinance. Id. at 3. Plaintiffs also state that they have demonstrated a present intention to reside within 1500 feet of where children commonly gather, and that they hold a constitutionally protected liberty interest that is infringed by their [r]esidential [b]anishment from the City of Lewisville, Texas. Id. at 7. 1

2 Case 4:12-cv RC-ALM Document 20 Filed 10/23/12 Page 2 of 8 PageID #: 222 Having made a de novo review of the objections raised to the Report and Recommendation by Plaintiffs, the court is of the opinion that the findings and conclusions of the Magistrate Judge are correct, and the objections are without merit, with respect to Plaintiffs Wynjean Duarte, Brandi Duarte, and the minor child S.D. The court sustains Plaintiff Aurelio Duarte s objections, and overrules the Magistrate Judge s Report and Recommendation as to this Plaintiff. Defendant s motion to dismiss is therefore granted in part. BACKGROUND Plaintiff Aurelio Duarte was convicted in 2006 for online solicitation of a minor, and was required to register on the Texas Department of Public Safety s Sex Offender Database. Defendant has enacted a city ordinance that prohibits sex offenders required to register on the Texas DPS Database because of a conviction involving a minor from permanently or temporarily residing within 1,500 feet of any premises where children commonly gather. Doc. # 6-2 at Page ID # In June 2010, Mr. Duarte returned to the City of Lewisville. Plaintiffs contend that, due to the City s sex offender residency restriction ordinance ( SORRO ), they are legally foreclosed from living in the City of Lewisville. They currently reside in a hotel room within the City. APPLICABLE LAW ON STANDING In order to have standing under Article III, a Plaintiff must first have suffered an injury in fact. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992). An injury in fact is an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Id. (internal quotations and citations omitted). 1 The three remaining Plaintiffs in this action are Mr. Duarte s wife (Wynjean Duarte) and children (Brandi Duarte and the minor child S.D.). 2

3 Case 4:12-cv RC-ALM Document 20 Filed 10/23/12 Page 3 of 8 PageID #: 223 Second, there must be a causal connection between the injury and the conduct, thus the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Id. (internal quotations and citations omitted). Third, it must be likely that the injury will be redressed by a favorable decision. Id. The federal courts are under an independent obligation to examine their own jurisdiction, and standing is perhaps the most important of [the jurisdictional] doctrines. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (citation omitted). It is a well-settled principle that standing cannot be inferred from statements made in the pleadings, but must affirmatively appear in the record. Id. (citations omitted). It is the burden of the party who seeks the exercise of jurisdiction in his favor clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute. Id. (citations omitted). THE COURT SUSTAINS PLAINTIFFS OBJECTIONS IN PART Plaintiffs contend that Article III standing does not require them to establish that they currently reside within 1500 feet of premises where children commonly gather, that they have incurred a fine for violation of the ordinance, or that they have a present intention to reside within 1500 feet of premises where children commonly gather. A. The objections of Plaintiffs Wynjean Duarte, Brandi Duarte, and minor child S.D. are overruled It is undisputed that: (1) none of these three Plaintiffs are sex offenders who are required to register with the Texas Department of Public Safety; and (2) SORRO does not apply to bar these Plaintiffs from living anywhere within the City of Lewisville. These three Plaintiffs would not be fined for residing within 1,500 feet of any premises where children commonly gather. In other words, 3

4 Case 4:12-cv RC-ALM Document 20 Filed 10/23/12 Page 4 of 8 PageID #: 224 there is no concrete and particularized invasion of a legally protected interest, nor is there an actual or imminent invasion of an interest sufficient to demonstrate an injury in fact. See Lujan, 504 U.S. at 560, 112 S. Ct. at It is true that parents have a constitutionally protected interest in the care, custody, and control of their children, which includes the right of parents to establish a home and bring up children. Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000); see also Moore v. City of East Cleveland, 431 U.S. 494, 499, 97 S. Ct (1977) ( freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment... [W]hen the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation. ). On the other hand, no one can deny the very strong governmental interest in protecting 2 vulnerable young children from the attentions of predatory pedophiles. In Doe v. Miller, 405 F.3d 700, (8th Cir. 2005), the Eighth Circuit concluded that a residency restriction that prohibits a convicted sex offender from living within a certain distance of a school or child care facility does not violate the sex offender s constitutional liberty interest in association with his family. The court noted that the statute does not directly regulate the family relationship or prevent any family member from residing with a sex offender in a residence that is consistent with the statute. Id. at 711. Similarly, at least one district court has dismissed as frivolous claims of a sex offender that a 2 For example, a very common restriction of supervised release in federal sex crime cases is the provision that the Defendant shall have no contact of any kind with children under the age of 18 unless supervised by an adult approved by the probation officer. This type of restriction has been approved by the Fifth Circuit. See, e.g., United States v. Rodriguez, 558 F.3d 408, 418 (5th Cir. 2009). 4

5 Case 4:12-cv RC-ALM Document 20 Filed 10/23/12 Page 5 of 8 PageID #: 225 similar statute violated his right to live with his family. Cantrell v. Beebe, 2010 WL (E.D. Ark. Jun. 2, 2012). The opinion notes that the governmental interest advanced by the statute is perhaps one of the most important interests of the government: to protect its citizens from harm. 3 Id. at *2. This case is unlike Moore, in which a city ordinance making it a crime for a homeowner to have living with them individuals outside their immediate family was found to violate due process, and more like Miller. The City has a strong interest in prohibiting registered sex offenders with a history of committing sexual offenses directed at minors from residing within a certain distance from places where minors commonly gather. The City is not prohibiting Wynjean Duarte, Brandi Duarte, and minor child S.D. from living in certain places; rather, it is prohibiting their husband and father, a convicted sex offender, from living in certain places due to specific and deliberate criminal choices he made in the past. Plaintiffs have not cited, and the court has not found, any case in which the spouse and/or children of a sex offender have standing to challenge sex offender registration laws or ordinances. 4 It makes little sense that they would have such standing, insofar as they are not subject to the actual laws or ordinances themselves. 3 See also Morales-Izquierdo v. Dept. of Homeland Sec., 600 F.3d 1076, 1091 (9th Cir. 2010) (concluding that the arguably weaker interest in removing an alien from this country outweighed the interest of a family in living together); see also United States v. Rodriguez, 558 F.3d 408 (5th Cir. 2009) (where a criminal Defendant with a background of sexual crimes could be restricted from having contact with his own children without supervision by an adult approved in writing by a probation officer: Any liberty interest... [Defendant] has in... raising his own children is outweighed by the need to protect them. ). members. 4 Even in Miller, the case was brought by the sex offenders, not the sex offenders family 5

6 Case 4:12-cv RC-ALM Document 20 Filed 10/23/12 Page 6 of 8 PageID #: 226 Plaintiffs citation to MedImmune, Inc. v. Genetech, Inc., 549 U.S. 118, 127 S. Ct. 764 (2007) is inapposite. Contrary to Plaintiffs assertion, the Genentech Court did not say that ripeness and standing often boil down to the same question; rather, the court stated that they boiled down to the same question in this case. Genentech, 549 U.S. at 128 n.8, 127 S. Ct. at 772 n.8. In Genentech, the Court was faced with a very different factual scenario, namely whether the facts alleged in a patent infringement case constituted a case or controversy as required by Article III. The issue currently before the court is whether Plaintiffs have standing to challenge a city ordinance, and Genentech offers little guidance on that issue. There is no question that this is a standing, not a ripeness, case. Therefore, the court will overrule Plaintiffs objections on this point and adopt the Report and Recommendation to the extent that it dismisses Plaintiffs Wynjean Duarte, Brandi Duarte, and minor child S.D. s claims for lack of standing. B. The objections of Plaintiff Aurelio Duarte are sustained With respect to the Magistrate Judge s conclusion that Mr. Duarte lacks standing, the court respectfully disagrees. Mr. Duarte has the burden to demonstrate that he has suffered an injury in fact that is concrete and particular and actual or imminent, as opposed to merely conjectural or hypothetical. Mr. Duarte alleges in his pleadings that he exhaustively sought to purchase [or lease] residential premises in the Defendant City of Lewisville but was legally foreclosed from doing so due solely to Defendant City of Lewisville s enactment of its SORRO. Doc. # 1 at 5. Viewing the facts in the light most favorable to Mr. Duarte and keeping in mind that this is a motion to dismiss for lack of standing, this is sufficient to plead an injury in fact. Mr. Duarte is not required to plead 6

7 Case 4:12-cv RC-ALM Document 20 Filed 10/23/12 Page 7 of 8 PageID #: 227 that he currently lives within 1,500 feet of a place where children gather, or that he was fined for doing so; rather, he simply must plead that the injury is imminent. Given that the ordinance would apply should Mr. Duarte attempt to reside within 1,500 of an area in which children commonly gather, this injury is sufficiently imminent to survive a motion to dismiss. The court makes no determination at this time whether Mr. Duarte will ultimately have standing to challenge the ordinance once discovery has been conducted, simply that he has alleged sufficient facts to make it past a motion to dismiss. 5 CONCLUSION After careful consideration, the court concludes that the objections of Plaintiffs Wynjean Duarte, Brandi Duarte, and the minor child S.D. are without merit and should be overruled. The Magistrate Judge s Report and Recommendation is ADOPTED as to these Plaintiffs. The court sustains Plaintiff Auerlio Duarte s objections, and OVERRULES the Magistrate Judge s Report and Recommendation as to this Plaintiff. IT IS THEREFORE ORDERED that Defendant City of Lewisville, Texas s Motion to Dismiss [Doc. # 6] is GRANTED IN PART. The claims of Plaintiffs Wynjean Duarte, Brandi 5 See, e.g., Lujan, 504 U.S. at 561, 112 S. Ct. at ( At the pleading stage, general factual allegations of injury resulting from the defendant s conduct may suffice, for on a motion to dismiss we presum[e] that general allegations embrace those specific facts that are necessary to support the claim... In response to a summary judgment motion, however, the plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts... which for purposes of the summary judgment motion will be taken to be true. ) (internal quotations omitted; brackets in original). 7

8 Case 4:12-cv RC-ALM Document 20 Filed 10/23/12 Page 8 of 8 PageID #: 228 Duarte, and the minor child S.D. are DISMISSED WITHOUT PREJUDICE. The remainder of the motion is DENIED. 8