CLOSED,CONSOLIDATED−LEAD CASE,NEBRASKA−DEFENDANT,NEBRASKADOCKET,PROTECTIVEORDER,TRIAL−OMAHA
U.S. District Court District of Nebraska (8 Omaha) CIVIL DOCKET FOR CASE #: 8:09−cv−00456−RGK−CRZ

John Doe and Jane Doe 1 through 20 et al v. State of Nebraska et Date Filed: 12/16/2009

al

Date Terminated: 12/21/2012

Assigned to: Senior Judge Richard G. Kopf

Jury Demand: Plaintiff

Referred to: Magistrate Judge Cheryl R. Zwart

Nature of Suit: 950 Constitutional − State

Case in other court: USDC−NE, 4:09cv03258, 4:10cv03003 Statute

Cause: 42:1983 Civil Rights Act

Jurisdiction: Federal Question

Plaintiff

John Doe and Jane Doe 1 through 20 Doe 12 on behalf of Does H and K, minors TERMINATED: 03/16/2010

represented by Blake Richards DORNAN, LUSTGARTEN LAW FIRM 1403 Farnam Street Suite 232 Omaha, NE 68102 (402) 884−7044 TERMINATED: 01/21/2010

Jason E. Troia DORNAN, TROIA LAW FIRM 1403 Farnam Street Suite 232 Omaha, NE 68102 (402) 884−7044 Fax: (402) 884−7045 Email: jet@dltlawyers.com ATTORNEY TO BE NOTICED

Joshua W. Weir WEIR LAW FIRM 1904 Farnam Street Suite 425 Omaha, NE 68102 (402) 513−3650 Fax: (844) 222−2417 Email: josh@joshweirlaw.com ATTORNEY TO BE NOTICED

Rodney C. Dahlquist , Jr. DORNAN, TROIA LAW FIRM 1403 Farnam Street Suite 232 Omaha, NE 68102 (402) 884−7044 Fax: (402) 884−7045 Email: rodney@dltlawyers.com ATTORNEY TO BE NOTICED

Stuart J. Dornan DORNAN, TROIA LAW FIRM 1403 Farnam Street Suite 232 Omaha, NE 68102 (402) 884−7044 Fax: (402) 884−7045 Email: stu@dltlawyers.com ATTORNEY TO BE NOTICED

Thomas J. Monaghan

Plaintiff John Doe and Jane Doe A through K Doe G on behalf of Doe I, minor
Plaintiff John Doe and Jane Doe 1 through 36 Doe 12 on behalf of Does H and K, minors
V. Defendant State of Nebraska

DORNAN, TROIA LAW FIRM 1403 Farnam Street Suite 232 Omaha, NE 68102 (402) 884−7044 Email: tom@dltlawyers.com ATTORNEY TO BE NOTICED
represented by Blake Richards (See above for address) TERMINATED: 01/21/2010
Jason E. Troia (See above for address) ATTORNEY TO BE NOTICED
Joshua W. Weir (See above for address) ATTORNEY TO BE NOTICED
Rodney C. Dahlquist , Jr. (See above for address) ATTORNEY TO BE NOTICED
Stuart J. Dornan (See above for address) ATTORNEY TO BE NOTICED
Thomas J. Monaghan (See above for address) ATTORNEY TO BE NOTICED
represented by Jason E. Troia (See above for address) ATTORNEY TO BE NOTICED
Joshua W. Weir (See above for address) ATTORNEY TO BE NOTICED
Rodney C. Dahlquist , Jr. (See above for address) ATTORNEY TO BE NOTICED
Stuart J. Dornan (See above for address) ATTORNEY TO BE NOTICED
Thomas J. Monaghan (See above for address) ATTORNEY TO BE NOTICED
represented by Corey M. O'Brien ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920

Defendant Nebraska State Patrol

Lincoln, NE 68509−8920 (402) 471−3833 Fax: (402) 471−3591 Email: corey.obrien@nebraska.gov ATTORNEY TO BE NOTICED
David D. Cookson BRUNING LAW GROUP 1201 Lincoln Mall Suite 100 Lincoln, NE 68508 (402) 261−3475 Email: david@bruninglawgroup.com ATTORNEY TO BE NOTICED
Katherine J. Spohn BRUNING LAW GROUP 1201 Lincoln Mall Suite 100 Lincoln, NE 68508 (402) 2613475 Email: katie@bruninglawgroup.com ATTORNEY TO BE NOTICED
Kevin L. Griess ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509−8920 (402) 471−1813 Fax: (402) 471−2957 Email: kevin.griess@nebraska.gov TERMINATED: 01/06/2014
Ryan S. Post ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509−8920 (402) 471−1814 Fax: (402) 471−3297 Email: ryan.post@nebraska.gov ATTORNEY TO BE NOTICED
represented by Corey M. O'Brien (See above for address) ATTORNEY TO BE NOTICED
David D. Cookson (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
Ryan S. Post

Defendant Jon Bruning Attorney General of Nebraska
Defendant Col. Bryan Tuma Superintendant of Law Enforcement and Public Safety for the Nebraska State Patrol
Defendant Donna Fegler Daiss County Attorneys (Adams)
Defendant Michael Long County Attorneys (Antelope)

(See above for address) ATTORNEY TO BE NOTICED
represented by Corey M. O'Brien (See above for address) ATTORNEY TO BE NOTICED
David D. Cookson (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
Ryan S. Post (See above for address) ATTORNEY TO BE NOTICED
represented by Corey M. O'Brien (See above for address) ATTORNEY TO BE NOTICED
David D. Cookson (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
Ryan S. Post (See above for address) ATTORNEY TO BE NOTICED
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014

Defendant Richard Roberts County Attorneys (Arthur)
Defendant James L. Zimmerman County Attorneys (Banner)
Defendant Glenn Clark County Attorneys (Blaine)
Defendant John Morgan County Attorneys (Boone)
Defendant Kathleen J. Hutchinson County Attorneys (Box Butte)
Defendant Ashley Boettcher County Attorneys (Boyd)
Defendant David M. Streich County Attorneys (Brown)

represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess

Defendant Shawn R. Eatherton County Attorneys (Buffalo)
Defendant Daniel A. Smith County Attorneys (Burt)
Defendant Julie L. Reiter County Attorneys (Butler)
Defendant Nathan Cox County Attorneys (Cass)
Defendant George L. Hirschbach County Attorneys (Cedar)
Defendant Arlan G. Wine County Attorneys (Chase)
Defendant Eric Scott County Attorneys (Cherry)

(See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED

Defendant Paul B. Schaub County Attorney (Cheyenne)
Defendant Ted S. Griess County Attorneys (Clay)
Defendant Francis D. Botelho County Attorneys (Colfax)
Defendant Thomas B. Donner County Attorneys (Cuming)
Defendant Tami Schendt County Attorneys (Custer)
Defendant Kim W. Watson County Attorneys (Dakota)

Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
Kimberly M. Watson DAKOTA COUNTY ATTORNEY'S

Defendant Vance Haug County Attorneys (Dawes)
Defendant Elizabeth F. Waterman County Attorneys (Dawson)
Defendant Douglas D. Palik County Attorneys (Deuel)
Defendant Leland K. Miner County Attorneys (Dixon)
Defendant Paul J. Vaughan County Attorneys (Dodge)
Defendant Donald W. Kleine County Attorneys (Douglas)

OFFICE 1601 Broadway P.O. Box 117 Dakota City, NE 68731−0117 (402) 987−2151 Fax: (402) 987−2186 Email: dakotacountyattorney.watson@gmail.com ATTORNEY TO BE NOTICED
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Jeffrey J. Lux DOUGLAS COUNTY ATTORNEYS' OFFICE 17th & Farnan Street Suite 100, Hall of Justice Omaha, NE 68183

Defendant James D. Owens County Attorneys (Dundy)
Defendant Jill R. Cunningham County Attorneys (Fillmore)
Defendant Patrick A. Duncan County Attorneys (Franklin)
Defendant Jon S. Schroeder County Attorneys (Frontier)
Defendant

(402) 444−3806 Fax: (402) 444−6787 Email: jeffrey.lux@douglascounty−ne.gov ATTORNEY TO BE NOTICED
Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
Timothy K. Dolan DOUGLAS COUNTY ATTORNEY'S OFFICE − CIVIL DIVISION 1819 Farnam Street Suite 909 Omaha, NE 68183 (402) 444−4973 Fax: (402) 444−6817 Email: tim.dolan@douglascounty−ne.gov ATTORNEY TO BE NOTICED
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by

Tom Patterson County Attorneys (Furnas)
Defendant Randall Ritnour County Attorneys (Gage)
Defendant Philip E. Pierce County Attorneys (Garden)
Defendant Dale Crandall County Attorneys (Garfield)
Defendant Todd D. Wilson County Attorneys (Gosper)
Defendant A. James Moravek County Attorneys (Grant)

Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
Todd D. Wilson TODD WILSON, P.C. P.O. Box 325 507 Smith Avenue Elwood, NE 68937 (308) 785−2550 Fax: (308) 785−2852 Email: gosperca@yahoo.com ATTORNEY TO BE NOTICED
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014

Defendant James Swanson County Attorneys (Greeley)
Defendant Mark Young County Attorneys (Hall)
Defendant Michael H. Powell County Attorneys (Hamilton)
Defendant Bryan S. McQuay County Attorneys (Harlan)
Defendant Joel W. Phillips County Attorneys (Hayes)
Defendant D. Eugene Garner County Attorneys (Hitchcock)
Defendant Thomas P. Herzog County Attorneys (Holt)

represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess

Defendant George G. Vinton County Attorneys (Hooker)
Defendant David T. Schroeder County Attorneys (Howard)
Defendant Linda A. Bauer County Attorneys (Jefferson)
Defendant Julie Smith Hogancamp County Attorneys (Johnson)
Defendant David G. Wondra County Attorneys (Kearney)
Defendant Blake Edwards County Attorneys (Keith)

(See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Julie Smith Hogancamp JOHNSON COUNTY ATTORNEY'S OFFICE − NEBRASKA P.O. Box 263 Tecumseh, NE 68450 (402) 335−2051 Fax: (402) 335−2135 TERMINATED: 01/21/2010 ATTORNEY TO BE NOTICED
Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address)

Defendant Eric Scott County Attorneys (Keya Paha)
Defendant David L. Wilson County Attorneys (Kimball)
Defendant John Thomas County Attorneys (Knox)
Defendant Gary Lacey County Attorneys (Lancaster)
Defendant Rebecca R. Harling County Attorneys (Lincoln)
Defendant

ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
Michael E. Thew LANCASTER COUNTY ATTORNEY'S OFFICE 575 South 10th Street Lincoln, NE 68508 (402) 441−7321 Fax: (402) 441−7336 Email: mthew@lancaster.ne.gov ATTORNEY TO BE NOTICED
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014

Steve Vinton County Attorneys (Logan)
Defendant Jason White County Attorneys (Loup)
Defendant Joseph M. Smith County Attorneys (Madison)
Defendant Tim Brouillette County Attorneys (McPherson)
Defendant Steven M. Curry County Attorneys (Merrick)
Defendant Jean Rhodes County Attorneys (Morrill)
Defendant Rodney Wetovick County Attorneys (Nance)

represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014

Defendant Louie M. Ligouri County Attorneys (Nemaha)
Defendant Timothy S. Schmidt County Attorneys (Nuckolls)
Defendant David J. Partsch County Attorneys (Otoe)
Defendant Victor Faesser County Attorneys (Pawnee)
Defendant Richard H. Roberts County Attorneys (Perkins)
Defendant Timothy E. Hoeft County Attorneys (Phelps)
Defendant Verlyn Luebbe County Attorneys (Pierce)

represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess

Defendant Sandra J. Allen County Attorneys (Platte)
Defendant Ronald E. Colling County Attorneys (Polk)
Defendant Paul Wood County Attorneys (Red Willow)
Defendant Douglas E. Merz County Attorneys (Richardson)
Defendant

(See above for address) TERMINATED: 01/06/2014
represented by Carl K. Hart , Jr. PLATTE COUNTY ATTORNEY'S OFFICE 2610 14th Street Columbus, NE 68601 (402) 563−4903 Fax: (402) 564−1914 Email: chart@plattene.us TERMINATED: 03/03/2010
Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
Sandra J. Allen ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509−8920 (402) 471−1910 Fax: (402) 471−3591 Email: sandra.allen@nebraska.gov TERMINATED: 02/24/2010
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by

Avery L. Gurnsey County Attorneys (Rock)
Defendant Tad D. Eickman County Attorneys (Saline)
Defendant Lee Polikov County Attorneys (Sarpy)
Defendant Scott J. Tingelhoff County Attorneys (Saunders)
Defendant Tiffany Wasserburger County Attorneys (Scottsbluff)
Defendant Wendy L. Elston County Attorneys (Seward)

Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
Michael A. Smith SARPY COUNTY ATTORNEY'S OFFICE 1210 Golden Gate Drive Suite 3147 Papillion, NE 68046−2889 (402) 593−2230 Fax: (402) 593−4359 Email: msmith@sarpy.com ATTORNEY TO BE NOTICED
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address)

Defendant Dennis King County Attorneys (Sheridan)
Defendant Mark L. Eurek County Attorneys (Sherman)
Defendant J. Adam Edmund County Attorneys (Sioux)
Defendant W. Bert Lammli County Attorneys (Stanton)
Defendant Daniel L. Werner County Attorneys (Thayer)
Defendant Warren R. Arganbright County Attorneys (Thomas)
Defendant Tammy Maul−Bodlak County Attorneys (Thurston)

TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED

Defendant Glenn Clark County Attorneys (Valley)
Defendant Shurie R. Graeve County Attorneys (Washington)
Defendant Michael E. Pieper County Attorneys (Wayne)
Defendant Jerry McDole County Attorneys (Webster)
Defendant James J. McNally County Attorneys (Wheeler)
Defendant Tim Sieh County Attorneys (York)
Defendant Greg Magee County Sheriffs (Adams)

Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address)

Defendant Darrell Hamilton County Sheriffs (Antelope)
Defendant Bill Simpson County Sheriffs (Arthur)
Defendant K. Patrick Mooney County Sheriffs (Banner)
Defendant Tim Sierks County Sheriffs (Blaine)
Defendant David Spiegel County Sheriffs (Boone)
Defendant Tammy Mowry County Sheriffs (Box Butte)
Defendant

ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014

David Derickson County Sheriffs (Boyd)
Defendant Steve Hapner County Sheriffs (Brown)
Defendant Neil A. Miller County Sheriffs (Buffalo)
Defendant Robert Pickell County Sheriffs (Burt)
Defendant Mark Hecker County Sheriffs (Butler)
Defendant William Brueggman County Sheriffs (Cass)
Defendant Larry Koranda County Sheriffs (Cedar)

represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014

Defendant Timothy Sutherland County Sheriffs (Chase)
Defendant Melvin Christensen County Sheriffs (Cherry)
Defendant Darrell Johnson County Sheriffs (Cheyenne)
Defendant Jeff Franklin County Sheriffs (Clay)
Defendant Paul J. Kruse County Sheriffs (Colfax)
Defendant Bradley Boyum County Sheriffs (Cuming)
Defendant Ted Henderson County Sheriffs (Custer)

represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess

Defendant James L. Wagner County Sheriffs (Dakota)
Defendant Karl Dailey County Sheriffs (Dawes)
Defendant Gary Reiber County Sheriffs (Dawson)
Defendant Jeffrey S. Ortgies County Sheriffs (Deuel)
Defendant Dean Chase County Sheriffs (Dixon)
Defendant Steve Hespen County Sheriffs (Dodge)

(See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
Kimberly M. Watson (See above for address) ATTORNEY TO BE NOTICED
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014

Defendant Timothy F. Dunning County Sheriffs (Douglas)
Defendant Robert S. McBride County Sheriffs (Dundy)
Defendant William Burgess County Sheriffs (Fillmore)
Defendant Jerry L. Archer County Sheriffs (Franklin)
Defendant Daniel Rupp County Sheriffs (Frontier)
Defendant Kurt Kapperman County Sheriffs (Furnas)

represented by Jeffrey J. Lux (See above for address) ATTORNEY TO BE NOTICED
Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
Timothy K. Dolan (See above for address) ATTORNEY TO BE NOTICED
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014

Defendant Millard Gustafson County Sheriffs (Gage) also known as Gus
Defendant Doug Miller County Sheriffs (Garden)
Defendant Larry D. Donner County Sheriffs (Garfield)
Defendant Dennis Ocken County Sheriffs (Gosper)
Defendant Shawn Hebbert County Sheriffs (Grant)
Defendant David C. Weeks County Sheriffs (Greeley)
Defendant

represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
Todd D. Wilson (See above for address) ATTORNEY TO BE NOTICED
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by

Jerry Watson County Sheriffs (Hall)
Defendant Kirk W. Handrup County Sheriffs (Hamilton)
Defendant Chris Becker County Sheriffs (Harlan)
Defendant Thomas Dow County Sheriffs (Hayes)
Defendant Bryan Leggott County Sheriffs (Hitchcock)
Defendant Ben Matchett County Sheriffs (Holt)
Defendant Lynn Nichols County Sheriffs (Hooker)

Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014

Defendant Harold Schenck County Sheriffs (Howard)
Defendant Nels Sorensen County Sheriffs (Jefferson)
Defendant James P. Wenzl County Sheriffs (Johnson)
Defendant Scott K. White County Sheriffs (Kearney)
Defendant Kevin Mueller County Sheriffs (Keith)
Defendant Jeff Kirsch County Sheriffs Keya Paha)
Defendant

represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Julie Smith Hogancamp (See above for address) TERMINATED: 01/21/2010 ATTORNEY TO BE NOTICED
Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014

Harry J. Gillway County Sheriffs (Kimball)
Defendant James F. Janecek County Sheriffs (Knox)
Defendant Terry Wagner County Sheriffs (Lancaster)
Defendant Jerome Kramer County Sheriffs (Lincoln)
Defendant Patrick McNeil County Sheriffs (Logan)
Defendant Kirby Holloway County Sheriffs (Loup)
Defendant Vern Hjorth County Sheriffs (Madison)

represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
Michael E. Thew (See above for address) ATTORNEY TO BE NOTICED
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED

Defendant John Haller County Sheriffs (McPherson)
Defendant Anthony McPhillips County Sheriffs (Merrick)
Defendant John Edens County Sheriffs (Morrill)
Defendant Davis Moore County Sheriffs (Nance)
Defendant Brent Lottman County Sheriffs (Nemaha)
Defendant James R. Marr County Sheriffs (Nuckolls)
Defendant

Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by

James Gress County Sheriffs (Otoe)
Defendant Jayme Reed County Sheriffs (Pawnee)
Defendant James D. Brueggman County Sheriffs (Perkins)
Defendant Tom Nutt County Sheriffs (Phelps)
Defendant Rick Eberhardt County Sheriffs (Pierce)
Defendant John Zavadil County Sheriffs (Platte)
Defendant Dwaine W. Ladwig County Sheriffs (Polk)

Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
Sandra J. Allen (See above for address) TERMINATED: 09/20/2011
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED

Defendant Gene Mahon County Sheriffs (Red Willow)
Defendant Vernon Buckminster County Sheriffs (Richardson)
Defendant Willis Haynes County Sheriffs (Rock)
Defendant Alan Moore County Sheriffs (Saline)
Defendant Jeff Davis County Sheriffs (Sarpy)
Defendant Kevin Stukenholtz County Sheriffs (Saunders)

Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
Michael A. Smith (See above for address) ATTORNEY TO BE NOTICED
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address)

Defendant Jim K. Lawson County Sheriffs (Scotts Bluff)
Defendant Joe Yocum County Sheriffs (Seward)
Defendant Terry Robbins County Sheriffs (Sheridan)
Defendant Michael F. Janulewicz County Sheriffs (Sherman)
Defendant William Roe County Sheriffs (Sioux)
Defendant Michael Unger County Sheriffs (Stanton)
Defendant David Lee County Sheriffs (Thayer)

TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED

Defendant Gary Eng County Sheriffs (Thomas)
Defendant Chris Kleinberg County Sheriffs (Thurston)
Defendant Casey D. Hurlburt County Sheriffs (Valley)
Defendant Michael Robinson County Sheriffs (Washington)
Defendant LeRoy W. Janssen County Sheriffs (Wayne)
Defendant Troy Schmitz County Sheriffs (Webster)
Defendant Adrian Lindsey County Sheriffs (Wheeler)

Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address)

Defendant Dale Radcliff County Sheriffs (York)
Defendant Thomas K. Casady Police Chiefs (Lincoln)
Defendant Alex Hayes Police Chiefs (Omaha)
Defendant Leonard Houloose Police Chiefs (Papillion)

ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
Richard C. Anderson CITY ATTORNEY'S OFFICE − LINCOLN 575 South 10th Street Room 4201 Lincoln, NE 68508 (402) 441−7200 Fax: (402) 441−7010 Email: LPD636@cjis.lincoln.ne.gov TERMINATED: 04/19/2010 ATTORNEY TO BE NOTICED
Tonya L. Peters CITY ATTORNEY'S OFFICE − LINCOLN 555 South 10th Street Suite 300 Lincoln, NE 68508 (402) 441−7200 Fax: (402) 441−8812 Email: tpeters@lincoln.ne.gov ATTORNEY TO BE NOTICED
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess

Defendant Timothy S. Mullen Police Chiefs (Fremont)
Defendant Lester E. Johnson Police Chiefs (Bennington)
Defendant Ron Murtaugh Police Chiefs (Ralston)
Defendant William Gumm Police Chiefs (Columbus)
Defendant Donald Klug Police Chiefs (York)
Interested Party Senator Pete Pirsch
Interested Party Dave Cookson

(See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED

Interested Party John Freudenberg
Interested Party Corey O'Brien
Interested Party Senator Scott Lautenbaugh
Interested Party Senator John Harms
Intervenor John Doe 21−23 TERMINATED: 01/21/2010
Intervenor John Doe 21−23 TERMINATED: 01/21/2010

Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Katherine J. Spohn (See above for address) ATTORNEY TO BE NOTICED
Kevin L. Griess (See above for address) TERMINATED: 01/06/2014
represented by Lawrence G. Whelan WHELAN LAW FIRM 3138 Cuming Street Omaha, NE 68131 (402) 342−2412 Fax: (402) 342−6752 Email: lawrence@whelanlawoffice.net ATTORNEY TO BE NOTICED
represented by Lawrence G. Whelan (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/16/2009

# Docket Text
1 COMPLAINT with jury demand against Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis Botelho,

12/16/2009 12/16/2009 12/16/2009 12/16/2009 12/16/2009

Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark, Glenn Clark, Ronald E. Colling, Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas Donner, Thomas Dow, Patrick A. Duncan, Timothy F. Dunning, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hulburt, Kathleen Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald W. Kleine, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, James D. Owens, Douglas D. Palik, David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H. Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott, Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James Zimmerman ( Filing fee $ 350, receipt number 0867−1673404), by Attorney Stuart J. Dornan on behalf of John Doe and Jane Doe 1 through 20, John Doe and Jane Doe A through K(Dornan, Stuart) (Entered: 12/16/2009)
2 MOTION for Leave to Use Fictitious Names by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe and Jane Doe 1 through 20, John Doe and Jane Doe A through K.(Dornan, Stuart) (Entered: 12/16/2009)
3 BRIEF in support of MOTION for Leave to Use Fictitious Names 2 by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe and Jane Doe 1 through 20, John Doe and Jane Doe A through K.(Dornan, Stuart) (Entered: 12/16/2009)
4 MOTION for Preliminary Injunction by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe and Jane Doe 1 through 20, John Doe and Jane Doe A through K.(Dornan, Stuart) (Entered: 12/16/2009)
5 BRIEF in support of MOTION for Preliminary Injunction 4 by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe and Jane Doe 1 through 20, John Doe and Jane Doe A through K.(Dornan, Stuart) (Entered: 12/16/2009)
6 INDEX in support of Brief 5 , Brief 3 in Support of Motion for Leave to Use Fictitious Names and Motion for Preliminary Injunction by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe and Jane Doe 1 through 20, John Doe and Jane Doe A through K. (Attachments: # 1 Exhibit 1−20: Declarations of Does 1−20, # 2 Exhibit 21: Affidavit of Doe A, # 3 Exhibit 22: Declaration of Doe B, # 4 Exhibit 23: Affidavit of Doe C,

12/16/2009 12/17/2009 12/17/2009
12/17/2009 12/17/2009 12/17/2009 12/17/2009 12/17/2009 12/17/2009 12/17/2009 12/17/2009 12/17/2009 12/17/2009

# 5 Exhibit 24: Affidavit of Doe D, # 6 Exhibit 25: Affidavit of Doe E, # 7 Exhibit 26: Affidavit of Doe F, # 8 Exhibit 27: Affidavit of Doe G, # 9 Exhibit 28: Affidavit of Doe H, # 10 Exhibit 29: Affidavit of Doe I, # 11 Exhibit 30: Affidavit of Doe J, # 12 Exhibit 31: Affidavit of Doe K, # 13 Exhibit 32: Letter from State Patrol, # 14 Exhibit 33: Consent to Search Under Nebraska Sex Offender Registry Act, # 15 Exhibit 34: Nebraska Sex Offender Risk Assessments, # 16 Exhibit 35: Lexington Clipper Herald, # 17 Exhibit 36: Nebraska State Patrol website, # 18 Exhibit 37: Nebraska State Patrol website, # 19 Exhibit 38: WOWT.com)(Dornan, Stuart) (Entered: 12/16/2009)
7 AFFIDAVIT in Support of Preliminary Injunction regarding Index,,,, 6 by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe and Jane Doe 1 through 20, John Doe and Jane Doe A through K.(Dornan, Stuart) (Entered: 12/16/2009)
8 TEXT NOTICE OF JUDGES ASSIGNED: Judge Richard G. Kopf and Richard G. Kopf (REFERRAL JUDGE) assigned. (TCL ) (Entered: 12/17/2009)
9 ORDER. It is ordered that counsel for the plaintiffs shall immediately contact the Attorney General for the State of Nebraska or one of his deputies and then those lawyers shall call my judicial assistant (Kris Leininger at 402−437−1640) today or tomorrow to schedule a telephone conference with me. My judicial assistant is directed to call the plaintiffs' counsel and advise him of this order. Ordered by Judge Richard G. Kopf. (KLL, ) (Entered: 12/17/2009)
10 Summons Requested as to Jon Bruning regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
11 Summons Requested as to Nebraska State Patrol regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
12 Summons Requested as to Col. Bryan Tuma regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
13 Summons Requested as to State of Nebraska regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
14 Summons Requested as to Donald W. Kleine regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
15 Summons Requested as to David Streitch regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
16 Summons Requested as to Francis D. Botelho regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
17 Summons Requested as to Elizabeth F. Waterman regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
18 Summons Requested as to Shawn Eatherton regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
19 Summons Requested as to Tom Donner regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 ,

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Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
20 Summons Requested as to Donna Fegler Daiss regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
21 Summons Requested as to Daniel Smith regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
22 Summons Requested as to Tami Schendt regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
23 Summons Requested as to Michael Long regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
24 Summons Requested as to Julie L. Reiter regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
25 Summons Requested as to Kim W. Watson regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
26 Summons Requested as to Richard Roberts regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
27 Summons Requested as to Nathan Cox regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
28 Summons Requested as to Vance Haug regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
29 Summons Requested as to James Zimmerman regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
30 Summons Requested as to George Hirschbach regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
31 Summons Requested as to Douglas Palik regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
32 Summons Requested as to Glenn Clark regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
33 Summons Requested as to Arlan Wine regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
34 Summons Requested as to Leland Miner regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
35 Summons Requested as to John Morgan regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
36 Summons Requested as to Ashley Boettcher, Eric Scott (Keya Paha County Attorney), Eric Scott (Cherry County Attorney), James D. Owens, Jill Cunningham, Kathleen Hutchinson, Paul Schaub, Paul Vaughn, Ted Griess, Patrick Duncan, Bryan McQuay,

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J. Blake Edwards, Jon Schroeder, Michael Powell, D. Eugene Garner, David Wilson, Gary Lacey, Joel Phillips, John Thomas, Philip Pierce, Randall Ritnour, Thomas Herzog, Tom Patterson, Dale Crandall, David T. Schroeder, George Vinton, A. James Moravek, James Swanson, Jason White, Julie Smith Hogancamp, Linda Bauer, Rebecca R. Harling, Steve Vinton, Todd Wilson, J. Adam Edmund, Avery Gurnsey, W. Bert Lammli, Daniel Werner, David Partsch, David Wondra, Dennis King, Douglas Merz, Jean Rhodes, Lee Polikov, Louie Ligouri, Mark Eurek, Mark Young, Paul Wood, Rodney Wetovick, Ronald Colling, Sandra J. Allen, Steve Curry, Tad Eickman, Tammy Maul−Bodlak, Tim Brouillette, Timothy Schmidt, Victor Faesser, Warren Arganbright, Glenn Clark, James McNally, Jerry McDole, Michael Pieper, Richard Roberts, Scott Tinglehoff, Schurie Graeve, Tiffany Wasserburger, Tim Sieh, Timothy Hoeft, Verlyn Luebbe and Wendy Elston regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
37 Summons Requested as to Adrian Lindsey, Alan Moore, Alex Hayes, Anthony McPhillips, Ben Matchett, Bill Simpson, Bradley Boyum, Brent Lottman, Bryan Leggott, Casey D. Hurlburt, Chris Becker, Chris Kleinberg, Dale Radcliff, Daniel Rupp, Darrell Hamilton, Darrell Johnson, David Derickson, David Lee, David Spiegel, David C. Weeks, Davis Moore, Dean Chase, Dennis Ocken, Donald Klug, Doug Miller, Dwaine Ladwig, Gary Eng, Gary Reiber, Gene Mahon, Greg Magee, Harold Schenck, Harry J. Gillway, James D. Bruggeman, James Gress, James Janecek, James L. Wagner, James R. Marr, James Wenzl, Jayme Reed, Jeff Davis, Jeff Franklin, Jeff Kirsch, Jeffrey S. Ortgies, Jerome Kramer, Jerry L. Archer, Jerry Watson, Jim K. Lawson, Joe Yocum, John Edens, John Haller, John Zavadil, Karl Dailey, Kevin Mueller, Kevin Stukenholtz, Kirby Holloway, Kirk Handrup, Kurt Kapperman, Larry D. Donner, Larry Koranda, Leonard Houloose, LeRoy W. Janssen, Lester Johnson, Lynn Nichols, Mark Hecker, Melvin Christiansen, Michael Janulewicz, Michael Robinson, Michael Unger, Millard Gustafson, Neil Miller, Nels Sorenson, Patrick McNeil, K. Patrick Mooney, Paul Kruse, Rick Eberhardt, Robert S. McBride, Robert Pickell, Ron Murtaugh, Scott K. White, Shawn Hebbert, Steve Harper, Steve Hepson, Tammy Mowry, Ted Henderson, Terry Robbins, Terry Wagner, Thomas Dow, Thomas K. Casady, Tim Sierks, Timothy F. Dunning, Timothy S. Mullen, Timothy Sutherland, Tom Nutt, Troy Schmitz, Vern Hjorth, Vernon Buckminster, William Bruggeman, William Burgess, William Gumm, William Roe and Willis Haynes regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/17/2009)
38 Summons Issued as to defendant Francis D. Botelho, Jon Bruning, Glenn Clark(County Attorneys (Blaine)), Nathan Cox, Donna Fegler Daiss, Thomas B. Donner, Shawn R. Eatherton, Vance Haug, George L. Hirschbach, Donald W. Kleine, Michael Long, Leland K. Miner, John Morgan, Nebraska State Patrol, Douglas D. Palik, Julie L. Reiter, Richard Roberts, Tami Schendt, Daniel A. Smith, State of Nebraska, David M. Streich, Bryan Tuma, Elizabeth F. Waterman, Kim W. Watson, Arlan G. Wine, James L. Zimmerman regarding YOU MUST PRINT YOUR ISSUED SUMMONS, WHICH ARE ATTACHED TO THIS DOCUMENT. PAPER COPIES WILL NOT BE MAILED. (TCL ) (Entered: 12/17/2009)
39 ATTORNEY LETTER by Clerk that Attorney Blake Richards has not registered for admittance to practice registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (Copy mailed) (MKR) (Entered: 12/18/2009)
40 ORDER. After consultation with counsel, IT IS ORDERED that:(1)Counsel for the plaintiffs shall promptly file a notice specifying the particular sections of the legislative bills that are being attacked, including a specification of where those sections are codified. (2)Counsel for the plaintiffs, Mr. Dornan, has represented that to the best of his knowledge none of the plaintiffs are currently the subject of a criminal prosecution or a probation revocation dispute. Mr. Dornan shall be prepared to confirm this representation on December 23, 2009, at the commencement of the hearing described below. (3)A hearing on a preliminary injunction in this case will commence at 11:00 a.m. on Wednesday, December 23, 2009, recess at noon, start again at 1:00 p.m., and adjourn at 5:00 p.m. that day. Without a lunch break, the hearing will

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commence again at 8:00 a.m. on December 24, 2009, and conclude at 1:00 p.m. During these two days, each side will be given approximately four hours to present their evidence. Evidence may be presented by affidavit or otherwise. Following the presentation of evidence, each side will be given a total of one hour to make their oral argument, with oral argument commencing at approximately 11:00 a.m. Defendants shall confer among themselves and come to an agreement regarding the allocation of evidence and argument time. The defendants may submit one or more responsive briefs at any time between now and the commencement of the hearing on the preliminary injunction. Ordered by Judge Richard G. Kopf. (KLL, ) (Entered: 12/18/2009)
41 TEXT ORDER − Regarding Lincoln Magistrate Docket. Pursuant to the retirement of Magistrate Judge David L. Piester on August 1, 2009, all civil and criminal cases previously assigned to Judge Piester are reassigned to District Judge Richard G. Kopf. Judge Kopf will handle pretrial management in new civil and criminal cases assigned to Judges Kopf and Urbom in accordance with NEGenR 1.4(a)(2) and NECivR 72.1 until a new magistrate judge is appointed. Ordered by Judge Joseph F Bataillon. (Copies mailed)(MKR) Modified on 12/30/2009 to correct judge(MKR). (Entered: 12/18/2009)
42 NOTICE of Appearance by Attorney David D. Cookson on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma (Cookson, David) (Entered: 12/18/2009)
43 Summons Requested as to Joseph Smith regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/18/2009)
46 Summons Issued (COPY) as to defendant Sandra J. Allen, Warren R. Arganbright, Linda A. Bauer, Ashley Boettcher, Tim Brouillette, Glenn Clark, Ronald E. Colling, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Patrick A. Duncan, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Mark L. Eurek, Victor Faesser, D. Eugene Garner, Shurie R. Graeve, Ted S. Griess, Avery L. Gurnsey, Rebecca R. Harling, Thomas P. Herzog, Timothy E. Hoeft, Julie Smith Hogancamp, Kathleen J. Hutchinson, Dennis King, Gary Lacey, W. Bert Lammli, Louie M. Ligouri, Verlyn Luebbe, Tammy Maul−Bodlak, Jerry McDole, Bryan S. McQuay, Douglas E. Merz, A. James Moravek, James D. Owens, David J. Partsch, Tom Patterson, Joel W. Phillips, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Jean Rhodes, Randall Ritnour, Richard H. Roberts, Paul B. Schaub, Timothy S. Schmidt, David T. Schroeder, Jon S. Schroeder, Eric Scott(County Attorneys (Keya Paha)), Eric Scott(County Attorneys (Cherry)), Tim Sieh, James Swanson, John Thomas, Scott J. Tingelhoff, Paul J. Vaughan, George G. Vinton, Steve Vinton, Tiffany Wasserburger, Daniel L. Werner, Rodney Wetovick, Jason White, David L. Wilson, Todd D. Wilson, David G. Wondra, Paul Wood, Mark Young. (TCL ) Modified on 12/21/2009 to remove text(TCL ). (Entered: 12/21/2009)
47 Summons Issued (COPY) as to defendant Jerry L. Archer, Chris Becker, Bradley Boyum, James D. Brueggman, William Brueggman, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Karl Dailey, Jeff Davis, David Derickson, Larry D. Donner, Thomas Dow, Timothy F. Dunning, Rick Eberhardt, John Edens, Gary Eng, Jeff Franklin, Harry J. Gillway, James Gress, William Gumm, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Steve Hespen, Vern Hjorth, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Jeff Kirsch, Chris Kleinberg, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Dwaine W. Ladwig, Jim K. Lawson, David Lee, Bryan Leggott, Adrian Lindsey, Brent Lottman, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Robert S. McBride, Patrick McNeil, Anthony McPhillips, Doug Miller, Neil A. Miller, K. Patrick Mooney, Alan Moore, Davis Moore, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, Robert Pickell, Dale Radcliff, Jayme Reed, Gary Reiber, Terry Robbins, Michael Robinson, William Roe, Daniel Rupp, Harold Schenck, Troy Schmitz, Tim Sierks, Bill Simpson, Nels Sorensen, David Spiegel, Kevin Stukenholtz, Timothy Sutherland, Michael Unger, James L. Wagner, Terry Wagner, Jerry Watson, David C. Weeks, James P. Wenzl,

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Scott K. White, Joe Yocum, John Zavadil. (TCL ) (Entered: 12/21/2009)
48 Summons Issued (COPY) as to defendant Joseph M. Smith. (TCL ) (Entered: 12/21/2009)
44 MEMORANDUM AND ORDER regarding MOTION for Preliminary Injunction 4 filed by John Doe and Jane Doe 1 through 20, John Doe and Jane Doe A through K. To assist counsel as they prepare their arguments for the preliminary injunction hearing, counsel shall give extra attention to the "consent to search" requirement for former offenders who are not on probation or parole. In particular, counsel shall read and be familiar with Doe v. Prosecutor, Marian County, 566 F. Supp.2nd 862 (S.D. Ind. 2008) (granting injunction in favor of former offenders that were not on probation or parole; holding that: (1) consent requirement under statute was not voluntary; (2) scope of search provided for by statute was unconstitutional; and (3) special needs exception did not justify warrantless searches under the statute). Ordered by Judge Richard G. Kopf. (JAB) (Entered: 12/21/2009)
45 Summons Requested as to James McNally regarding Index,,,, 6 , Brief 3 , Motion for Miscellaneous Relief 2 , Brief 5 , Motion for Preliminary Injunction 4 , Complaint,,,,,,,,,,,,, 1 , Affidavit 7 . (Dornan, Stuart) (Entered: 12/21/2009)
49 Summons Issued (COPY) as to defendant James J. McNally. YOU MUST PRINT YOUR ISSUED SUMMONS, WHICH ARE ATTACHED TO THIS DOCUMENT. PAPER COPIES WILL NOT BE MAILED. (TCL ) (Entered: 12/21/2009)
50 MEMORANDUM AND ORDER − To help the lawyers prepare for the preliminary injunction hearing, Counsel shall be prepared to explain in what manner Nebraska's new laws differ, if at all, from the requirements of the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. §§ 16901− 16991. Counsel for Plaintiffs shall be prepared to represent whether at least some of the plaintiffs who have been convicted of sexual offenses have served their time and are no longer on probation or parole. Ordered by Judge Richard G. Kopf. (GJG) (Entered: 12/22/2009)
51 INDEX in support of Index,,,, 6 , Brief 3 , Brief 5 , Complaint,,,,,,,,,,,,, 1 (Supplemental) by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe and Jane Doe 1 through 20, John Doe and Jane Doe A through K. (Attachments: # 1 Exhibit #39: Curriculum Vitae of Lisa Sample, # 2 Exhibit #40: Article, Are Sex Offenders Different?, # 3 Exhibit #41: Article, An Examination of the Degree to Which Sex Offenders Kill)(Dornan, Stuart) (Entered: 12/22/2009)
52 NOTICE of Appearance on behalf of Defendants Donald W. Kleine and Timothy F. Dunning on behalf of Jeffrey J. Lux and Timothy K. Dolan by Attorney Timothy K. Dolan on behalf of Defendants Timothy F. Dunning, Donald W. Kleine (Dolan, Timothy) (Entered: 12/22/2009)
53 BRIEF in opposition to Plaintiffs' Motion for Leave to Use Fictitious Names by Attorney David D. Cookson on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.(Cookson, David) (Entered: 12/22/2009)
54 OBJECTION TO PLAINTIFFS INDEX OF EVIDENCE IN SUPPORT OF PLAINTIFFS MOTION FOR LEAVE TO USE FICTITIOUS NAMES AND MOTION FOR PRELIMINARY INJUNCTION by Attorney David D. Cookson on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.(Cookson, David) (Entered: 12/22/2009)
55 BRIEF in support of OBJECTIONS TO PLAINTIFFS INDEX OF EVIDENCE IN SUPPORT OF PLAINTIFFS MOTION FOR LEAVE TO USE FICTITIOUS NAMES AND MOTION FOR PRELIMINARY INJUNCTION by Attorney David D. Cookson on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.(Cookson, David) (Entered: 12/22/2009)
56 NOTICE regarding Order,,,,,, 40 Notice of Sections Challenged by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe and Jane Doe 1 through 20, John Doe and Jane Doe A through K (Dornan, Stuart) (Entered: 12/22/2009)
72 NOTICE of Limited Participation by Attorney Julie Smith Hogancamp on behalf of Defendants Julie Smith Hogancamp, James P. Wenzl (TCL) (Entered: 12/23/2009)

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57 BRIEF in opposition to Plaintiffs' Motion for Preliminary Injunction by Attorney David D. Cookson on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma. (Attachments: # 1 Appendix 1, # 2 Appendix 2)(Cookson, David) (Entered: 12/23/2009)
58 INDEX of Evidence in Opposition to Plaintiffs' Motion for Preliminary Injunction by Attorney David D. Cookson on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.(Cookson, David) (Entered: 12/23/2009)
59 AFFIDAVIT of David D. Cookson, Chief Deputy Attorney General regarding Index 58 by Attorney David D. Cookson on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Cookson, David) (Entered: 12/23/2009)
60 AFFIDAVIT of Shawn Edwards, Nebraska State Patrol regarding Index 58 by Attorney David D. Cookson on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma. (Attachments: # 1 Exhibit 1a, # 2 Exhibit 1b, # 3 Exhibit 2a, # 4 Exhibit 2b)(Cookson, David) (Entered: 12/23/2009)
61 AFFIDAVIT of Glen Elwell, Nebraska State Patrol regarding Index 58 by Attorney David D. Cookson on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.(Cookson, David) (Entered: 12/23/2009)
62 AFFIDAVIT of Leslie Levy, Assistant Attorney General regarding Index 58 by Attorney David D. Cookson on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.(Cookson, David) (Entered: 12/23/2009)
63 AFFIDAVIT of Ed Sexton, Investigator, Attorney General's Office regarding Index 58 by Attorney David D. Cookson on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.(Cookson, David) (Entered: 12/23/2009)
64 AFFIDAVIT of Kerry Crosby, Investigator, Attorney General's Office regarding Index 58 by Attorney David D. Cookson on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.(Cookson, David) (Entered: 12/23/2009)
65 AFFIDAVIT of Ernie Allen, President and Chief Executive Office of the National Center for Missing and Exploited Children regarding Index 58 by Attorney David D. Cookson on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma. (Attachments: # 1 Exhibit 1a, # 2 Exhibit 1b)(Cookson, David) (Entered: 12/23/2009)
66 AFFIDAVIT of Nicole Wambold regarding Index 58 by Attorney David D. Cookson on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.(Cookson, David) (Entered: 12/23/2009)
67 NOTICE of Limited Participation by County Officials by Attorney David D. Cookson on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma (Cookson, David) (Entered: 12/23/2009)
68 NOTICE of Appearance by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma (Spohn, Katherine) (Entered: 12/23/2009)
69 NOTICE of Limited Participation by Attorney Michael E. Thew on behalf of Defendants Gary Lacey, Terry Wagner (Thew, Michael) (Entered: 12/23/2009)
70 MOTION to Intervene by Attorney Lawrence G. Whelan on behalf of Intervenor John Doe 21−23.(Whelan, Lawrence) (Entered: 12/23/2009)
71 MOTION Use of fictitious names by Attorney Lawrence G. Whelan on behalf of Intervenor John Doe 21−23.(Whelan, Lawrence) (Entered: 12/23/2009)

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73 TEXT NOTICE OF INDEX OF EVIDENCE regarding brief filing 57 , by Deputy Clerk. Pursuant to NECivR 7.0.1(a)(2) and (b)(2), evidence in support of a motion or brief shall be identified on an electronically−filed index of evidence. The index of evidence must identify the motion or brief to which it relates. This notice is for your information for future filings. TEXT NOTICE OF INCORRECT EVENT used when filing the Affidavits filings 59 60 61 62 63 64 65 and 66 as they are attachments to the Index filing 58 . In the future, use the event ATTACHMENT − CONTINUED.(GJG) (Entered: 12/23/2009)
74 ATTORNEY LETTER by Clerk that Attorney Julie Smith Hogancamp has not registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (TCL ) (Entered: 12/23/2009)
75 APPLICATION/ORDER admitting for full−time admission Attorney Corey M. O'Brien for Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska. Ordered by Deputy Clerk. (GJG) (Entered: 12/23/2009)
76 TEXT MINUTE ENTRY for proceedings held before Judge Richard G. Kopf in Lincoln on 12/23/09. Hearing held on plaintiffs' motion for preliminary injunction 4 . Court grants plaintiffs' motion 2 for leave to use fictitious names provided that plaintiffs' counsel attach declarations signed under the penalty of perjury. Defendants' oral motion in limine regarding the testimony of Lisa Sample is denied. Opening statements waived. Evidence and argument made by parties as to motion for preliminary injunction. Court takes matter under advisement and will have opinion the following week. Appearance for Plaintiffs: Stuart J. Dornan, Thomas J. Monaghan, Blake Richards; Defendants State of Nebraska, Nebraska State Patrol, Jon Bruning, Col. Bryan Tuma: David D. Cookson and Katherine J. Spohn; for Defendants Douglas County Attorney and Douglas County Sheriff: Timothy K. Dolan and Jeffrey J. Lux; Courtroom Deputy: Colleen Beran; Court Reporter: Digital; Time Commenced: 11:06 a.m. − 12:00 p.m. Time Concluded: 1:09 p.m. − 3:10 p.m. (CCB) (Entered: 12/23/2009)
77 AUDIO FILE. Court Date & Time [ 12/23/2009 10:56:39 AM ]. File Size [ 6331 KB ]. Run Time [ 00:52:45 ]. (preliminary injunction hearing (morning session)). (auto−docket). (Entered: 12/23/2009)
78 AUDIO FILE. Court Date & Time [ 12/23/2009 12:44:34 PM ]. File Size [ 15040 KB ]. Run Time [ 02:05:20 ]. (preliminary injunction hearing (afternoon session)). (auto−docket). (Entered: 12/23/2009)
79 WITNESS LIST from preliminary injunction hearing held on 12/23/09. (CCB) (Entered: 12/23/2009)
80 EXHIBIT LIST from preliminary injunction hearing held on 12/23/09. (CCB) (Entered: 12/23/2009)
81 INDEX in support of Brief, 57 by Attorney David D. Cookson on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma. (Attachments: # 1 Affidavit)(Cookson, David) (Entered: 12/24/2009)
82 MOTION to Consolidate Cases by Attorney David D. Cookson on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma. (Attachments: # 1 Text of Proposed Order)(Cookson, David) (Entered: 12/28/2009)
83 NOTICE of Limited Participation by Attorney Todd D. Wilson on behalf of Defendants Dennis Ocken, Todd D. Wilson (TCL ) (Entered: 12/29/2009)
86 NOTICE of Limited Participation by Attorney Kim Watson on behalf of Defendants James L. Wagner, Kim W. Watson (TCL ) (Entered: 12/29/2009)
84 TEXT NOTICE REGARDING PROPOSED ORDER 82 by Deputy Clerk. Pursuant to NECivR 7.0.2, a moving party shall submit a proposed order to the judge. Electronically submitted proposed orders may not be combined with the motion into one document. The proposed order should be e−mailed in a word−processing format to the assigned judge. This notice is for your information for future filings. (GJG)

12/29/2009 12/29/2009 12/29/2009 12/29/2009 12/29/2009 12/29/2009 12/30/2009
12/30/2009 12/30/2009 01/04/2010
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(Entered: 12/29/2009)
85 ATTORNEY LETTER by Clerk that Attorney Todd D. Wilson has not registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (TCL ) (Entered: 12/29/2009)
87 ATTORNEY LETTER by Clerk that Attorney Kim Watson has not registered for admittance to practice nor registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (TCL ) (Entered: 12/29/2009)
88 MOTION to Consolidate Cases by Attorney David D. Cookson on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.(Cookson, David) (Entered: 12/29/2009)
89 NOTICE OF LIMITED PARTICIPATION by Attorney Sandra J. Allen on behalf of Defendant Sandra J. Allen (Allen, Sandra) (Entered: 12/29/2009)
90 NOTICE OF LIMITED PARTICIPATION by Attorney Sandra J. Allen on behalf of Defendant John Zavadil (Allen, Sandra) (Entered: 12/29/2009)
91 NOTICE of Related Case by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma (Spohn, Katherine) (Entered: 12/29/2009)
92 MEMORANDUM AND ORDER − The motion for a preliminary injunction (filing 4 ) is denied except as provided below: Defendants are preliminarily enjoined from enforcing the following statutes against persons who have been convicted of sex offenses but who have completed their criminal sentences and who are not on probation, parole, or court−ordered supervision, to wit: (1) Neb. Rev. Stat. § 29−4006(2) (West, Operative January 1, 2010) (requiring consent to search and installation of monitoring hardware and software) and (2) Neb. Rev. Stat. § 28−322.05 (West, Operative January 1, 2010) (making it a crime to use Internet social networking sites accessible by minors by a person required to register under the Sex Offender Registration Act). Within 10 days, Plaintiffs shall post a bond with the Clerk (cash or surety) in the sum of $500. Ordered by Judge Richard G. Kopf. (GJG) (Entered: 12/30/2009)
93 NOTICE of Limited Participation by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma (Spohn, Katherine) (Entered: 12/30/2009)
94 MOTION to Withdraw as Attorney by Attorney Julie Smith Hogancamp on behalf of Defendant Julie Smith Hogancamp.(TCL ) (Entered: 12/31/2009)
95 MEMORANDUM AND ORDER − Counsel for Plaintiffs shall advise any state judge before whom they appear seeking similar relief to the relief sought here that I respectfully request that said judge grant no relief. Counsel shall provide the judge with a copy of this order. In addition to the normal electronic notice, the Clerks office shall call Plaintiffs' counsel and counsel for the State of Nebraska and advise them of this order. If a state court enters an order that conflicts with mine, there is high likelihood that I will take further more direct action to stop any such interference. In a spirit of comity and respect, I hope to avoid such an unseemly dispute by issuing this order. Ordered by Judge Richard G. Kopf. (GJG) (Entered: 01/04/2010)
96 NOTICE of Limited Participation by Attorney Richard C. Anderson on behalf of Defendant Thomas K. Casady (Anderson, Richard) (Entered: 01/04/2010)
97 MEMORANDUM AND ORDER regarding phone calls with Judges Arterburn and Burns. No substantive legal discussions were held between the aforementioned judges and me. I would characterize the calls from these judges as courtesy calls. Ordered by Judge Richard G. Kopf. (JAB) (Entered: 01/05/2010)
98 NOTICE of Duplicative Action and Litigation by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma (Spohn, Katherine) (Entered: 01/06/2010)

01/06/2010
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101 TEXT RECEIPT FOR CASH BOND in the amount of $ 500.00, receipt number 8−12328, posted by Dornan, Lustgarten Law Firm on behalf of Plaintiffs John Doe and Jane Doe 1 through 20, John Doe and Jane Doe A through K per Memorandum and Order 92 . THIS IS A TEXT ONLY ENTRY. A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY. (TCL ) (Entered: 01/07/2010)
99 MOTION for Extension of Time to File Answer by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.(Spohn, Katherine) (Entered: 01/07/2010)
100 MEMORANDUM AND ORDER − In 8:09CV456, the State of Nebraska filed a notice advising me that "duplicative actions [have been] filed in State Courts". I herewith request that the courts of the State of Nebraska refrain from issuing any orders enjoining Nebraska's Sex Offender Registration Act and related legislative bills while my cases are pending. I desperately hope to avoid a dispute with the state courts, but if push comes to shove and Nebraska files an appropriate motion, I may step in and enjoin state judges from taking any further action in these matters. IT IS ORDERED that counsel for the State of Nebraska shall provide a copy of this memorandum and order to any state court judge considering whether to enjoin enforcement of the Nebraska Sex Offender Registration Act and LB 97 and LB 285. Ordered by Judge Richard G. Kopf. (JAB) (Entered: 01/07/2010)
102 TEXT ORDER granting 99 Motion for Extension of Time to Answer. Jon Bruning, Nebraska State Patrol, State of Nebraska, and Bryan Tuma answer due 2/8/2010. Ordered by Deputy Clerk. (JAB) (Entered: 01/07/2010)
103 SUMMONS Returned Executed upon defendant Jon Bruning on 12/18/2009; Nebraska State Patrol on 12/18/2009; State of Nebraska on 12/18/2009; Bryan Tuma on 12/18/2009. (Dornan, Stuart) (Entered: 01/07/2010)
104 Unopposed MOTION for Extension of Time to File Answer by Attorney Timothy K. Dolan on behalf of Defendants Timothy F. Dunning, Donald W. Kleine.(Dolan, Timothy) (Entered: 01/08/2010)
105 TEXT ORDER granting 104 Motion for Extension of Time to Answer. Timothy F. Dunning and Donald W. Kleine answers due 2/8/2010. Ordered by Deputy Clerk. (JAB) (Entered: 01/08/2010)
106 APPLICATION/ORDER admitting for full−time admission Attorney Kim Watson for Defendant Kim W. Watson. Ordered by Deputy Clerk. (TCL ) (Entered: 01/11/2010)
107 MOTION for Extension of Time to File Answer or otherwise plead by Attorney Michael A. Smith on behalf of Defendants Jeff Davis, Lee Polikov.(Smith, Michael) (Entered: 01/11/2010)
108 TEXT ORDER granting 107 Motion for Extension of Time to Answer. Jeff Davis answer due 2/10/2010; Lee Polikov answer due 2/10/2010. Ordered by Deputy Clerk. (GJG) (Entered: 01/12/2010)
109 SUMMONS Returned Executed upon defendant Daniel L. Werner on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
110 SUMMONS Returned Executed upon defendant Harry J. Gillway on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
111 SUMMONS Returned Executed upon defendant Lee Polikov on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
112 SUMMONS Returned Executed upon defendant LeRoy W. Janssen on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
113 SUMMONS Returned Executed upon defendant Willis Haynes on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
114 SUMMONS Returned Executed upon defendant Vance Haug on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
115 SUMMONS Returned Executed upon defendant Thomas B. Donner on 12/21/2009. (Dornan, Stuart) (Entered: 01/13/2010)

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116 SUMMONS Returned Executed upon defendant Vern Hjorth on 12/29/2009. (Dornan, Stuart) (Entered: 01/13/2010)
117 SUMMONS Returned Executed upon defendant Julie L. Reiter on 12/21/2009. (Dornan, Stuart) (Entered: 01/13/2010)
118 SUMMONS Returned Executed upon defendant Daniel A. Smith on 12/21/2009. (Dornan, Stuart) (Entered: 01/13/2010)
119 SUMMONS Returned Executed upon defendant Michael Long on 12/21/2009. (Dornan, Stuart) (Entered: 01/13/2010)
120 SUMMONS Returned Executed upon defendant Tami Schendt on 12/21/2009. (Dornan, Stuart) (Entered: 01/13/2010)
121 SUMMONS Returned Executed upon defendant Donald W. Kleine on 12/21/2009. (Dornan, Stuart) (Entered: 01/13/2010)
122 SUMMONS Returned Executed upon defendant Shawn R. Eatherton on 12/21/2009. (Dornan, Stuart) (Entered: 01/13/2010)
123 SUMMONS Returned Executed upon defendant Kim W. Watson on 12/21/2009. (Dornan, Stuart) (Entered: 01/13/2010)
124 SUMMONS Returned Executed upon defendant Arlan G. Wine on 12/21/2009. (Dornan, Stuart) (Entered: 01/13/2010)
125 SUMMONS Returned Executed upon defendant Glenn Clark(County Attorneys (Blaine)) on 12/21/2009. (Dornan, Stuart) (Entered: 01/13/2010)
126 SUMMONS Returned Executed upon defendant Leland K. Miner on 12/21/2009. (Dornan, Stuart) (Entered: 01/13/2010)
127 SUMMONS Returned Executed upon defendant John Morgan on 12/21/2009. (Dornan, Stuart) (Entered: 01/13/2010)
128 SUMMONS Returned Executed upon defendant Glenn Clark(County Attorneys (Valley)) on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
129 SUMMONS Returned Executed upon defendant Douglas D. Palik on 12/21/2009. (Dornan, Stuart) (Entered: 01/13/2010)
130 SUMMONS Returned Executed upon defendant George L. Hirschbach on 12/21/2009. (Dornan, Stuart) (Entered: 01/13/2010)
131 SUMMONS Returned Executed upon defendant James L. Zimmerman on 12/23/2009. (Dornan, Stuart) (Entered: 01/13/2010)
132 SUMMONS Returned Executed upon defendant Nathan Cox on 12/21/2009. (Dornan, Stuart) (Entered: 01/13/2010)
133 SUMMONS Returned Executed upon defendant Francis D. Botelho on 12/21/2009. (Dornan, Stuart) (Entered: 01/13/2010)
134 SUMMONS Returned Executed upon defendant Elizabeth F. Waterman on 12/21/2009. (Dornan, Stuart) (Entered: 01/13/2010)
135 SUMMONS Returned Executed upon defendant David M. Streich on 12/21/2009. (Dornan, Stuart) (Entered: 01/13/2010)
136 SUMMONS Returned Executed upon defendant Donna Fegler Daiss on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
137 SUMMONS Returned Executed upon defendant Steven M. Curry on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
138 SUMMONS Returned Executed upon defendant Jill R. Cunningham on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
139 SUMMONS Returned Executed upon defendant Dale Crandall on 12/23/2009. (Dornan, Stuart) (Entered: 01/13/2010)

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140 SUMMONS Returned Executed upon defendant Ronald E. Colling on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
141 SUMMONS Returned Executed upon defendant Melvin Christensen on 12/23/2009. (Dornan, Stuart) (Entered: 01/13/2010)
142 SUMMONS Returned Executed upon defendant Dean Chase on 12/28/2009. (Dornan, Stuart) (Entered: 01/13/2010)
143 SUMMONS Returned Executed upon defendant Thomas K. Casady on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
144 SUMMONS Returned Executed upon defendant William Burgess on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
145 SUMMONS Returned Executed upon defendant Vernon Buckminster on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
146 SUMMONS Returned Executed upon defendant William Brueggman on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
147 SUMMONS Returned Executed upon defendant James D. Brueggman on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
148 SUMMONS Returned Executed upon defendant Bradley Boyum on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
149 SUMMONS Returned Executed upon defendant Ashley Boettcher on 12/23/2009. (Dornan, Stuart) (Entered: 01/13/2010)
150 SUMMONS Returned Executed upon defendant Chris Becker on 12/23/2009. (Dornan, Stuart) (Entered: 01/13/2010)
151 SUMMONS Returned Executed upon defendant Linda A. Bauer on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
152 SUMMONS Returned Executed upon defendant Warren R. Arganbright on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
153 SUMMONS Returned Executed upon defendant Jerry L. Archer on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
154 SUMMONS Returned Executed upon defendant Sandra J. Allen on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
155 SUMMONS Returned Executed upon defendant Tim Brouillette on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
156 SUMMONS Returned Executed upon defendant John Edens on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
157 SUMMONS Returned Executed upon defendant Rick Eberhardt on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
158 SUMMONS Returned Executed upon defendant Timothy F. Dunning on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
159 SUMMONS Returned Executed upon defendant Patrick A. Duncan on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
160 SUMMONS Returned Executed upon defendant Thomas Dow on 12/23/2009. (Dornan, Stuart) (Entered: 01/13/2010)
161 SUMMONS Returned Executed upon defendant Larry D. Donner on 12/24/2009. (Dornan, Stuart) (Entered: 01/13/2010)
162 SUMMONS Returned Executed upon defendant Jeff Davis on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
163 SUMMONS Returned Executed upon defendant David Derickson on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)

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164 SUMMONS Returned Executed upon defendant Karl Dailey on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
165 SUMMONS Returned Executed upon defendant Steve Hapner on 12/21/2009. (Dornan, Stuart) (Entered: 01/13/2010)
166 SUMMONS Returned Executed upon defendant Rebecca R. Harling on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
167 SUMMONS Returned Executed upon defendant Darrell Hamilton on 12/23/2009. (Dornan, Stuart) (Entered: 01/13/2010)
168 SUMMONS Returned Executed upon defendant John Haller on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
169 SUMMONS Returned Executed upon defendant Millard Gustafson on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
170 SUMMONS Returned Executed upon defendant Avery L. Gurnsey on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
171 SUMMONS Returned Executed upon defendant William Gumm on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
172 SUMMONS Returned Executed upon defendant Ted S. Griess on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
173 SUMMONS Returned Executed upon defendant James Gress on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
174 SUMMONS Returned Executed upon defendant Shurie R. Graeve on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
175 SUMMONS Returned Executed upon defendant D. Eugene Garner on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
176 SUMMONS Returned Executed upon defendant Victor Faesser on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
177 SUMMONS Returned Executed upon defendant Mark L. Eurek on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
178 SUMMONS Returned Executed upon defendant Gary Eng on 12/27/2009. (Dornan, Stuart) (Entered: 01/13/2010)
179 SUMMONS Returned Executed upon defendant Wendy L. Elston on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
180 SUMMONS Returned Executed upon defendant Tad D. Eickman on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
181 SUMMONS Returned Executed upon defendant Blake Edwards on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
182 SUMMONS Returned Executed upon defendant J. Adam Edmund on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
183 SUMMONS Returned Executed upon defendant Leonard Houloose on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
184 SUMMONS Returned Executed upon defendant Kirby Holloway on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
185 SUMMONS Returned Executed upon defendant Timothy E. Hoeft on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
186 SUMMONS Returned Executed upon defendant Julie Smith Hogancamp on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
187 SUMMONS Returned Executed upon defendant Thomas P. Herzog on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)

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188 SUMMONS Returned Executed upon defendant Ted Henderson on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
189 SUMMONS Returned Executed upon defendant Mark Hecker on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
190 SUMMONS Returned Executed upon defendant Shawn Hebbert on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
191 SUMMONS Returned Executed upon defendant Alex Hayes on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
192 SUMMONS Returned Executed upon defendant Jeff Kirsch on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
193 SUMMONS Returned Executed upon defendant Dennis King on 12/24/2009. (Dornan, Stuart) (Entered: 01/13/2010)
194 SUMMONS Returned Executed upon defendant Kurt Kapperman on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
195 SUMMONS Returned Executed upon defendant Lester E. Johnson on 12/23/2009. (Dornan, Stuart) (Entered: 01/13/2010)
196 SUMMONS Returned Executed upon defendant Darrell Johnson on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
197 SUMMONS Returned Executed upon defendant Michael F. Janulewicz on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
198 SUMMONS Returned Executed upon defendant James F. Janecek on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
199 SUMMONS Returned Executed upon defendant Casey D. Hurlburt on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
200 SUMMONS Returned Executed upon defendant Kathleen J. Hutchinson on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
201 SUMMONS Returned Executed upon defendant Brent Lottman on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
202 SUMMONS Returned Executed upon defendant Adrian Lindsey on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
203 SUMMONS Returned Executed upon defendant Louie M. Ligouri on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
204 SUMMONS Returned Executed upon defendant Bryan Leggott on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
205 SUMMONS Returned Executed upon defendant David Lee on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
206 SUMMONS Returned Executed upon defendant Jim K. Lawson on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
207 SUMMONS Returned Executed upon defendant W. Bert Lammli on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
208 SUMMONS Returned Executed upon defendant Michael Robinson on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
209 SUMMONS Returned Executed upon defendant William Roe on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
210 SUMMONS Returned Executed upon defendant David J. Partsch on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
211 SUMMONS Returned Executed upon defendant Tom Patterson on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)

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212 SUMMONS Returned Executed upon defendant Joel W. Phillips on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
213 SUMMONS Returned Executed upon defendant Robert Pickell on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
214 SUMMONS Returned Executed upon defendant Michael E. Pieper on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
215 SUMMONS Returned Executed upon defendant Philip E. Pierce on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
216 SUMMONS Returned Executed upon defendant Michael H. Powell on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
217 SUMMONS Returned Executed upon defendant Davis Moore on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
218 SUMMONS Returned Executed upon defendant A. James Moravek on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
219 SUMMONS Returned Executed upon defendant Kevin Mueller on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
220 SUMMONS Returned Executed upon defendant Troy Schmitz on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
221 SUMMONS Returned Executed upon defendant Harold Schenck on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
222 SUMMONS Returned Executed upon defendant Jon S. Schroeder on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
223 SUMMONS Returned Executed upon defendant Eric Scott(County Attorneys (Cherry)) on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
224 SUMMONS Returned Executed upon defendant Eric Scott(County Attorneys (Keya Paha)). (Dornan, Stuart) (Entered: 01/13/2010)
225 SUMMONS Returned Executed upon defendant Tim Sieh on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
226 SUMMONS Returned Executed upon defendant Tim Sierks on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
227 SUMMONS Returned Executed upon defendant Jayme Reed on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
228 SUMMONS Returned Executed upon defendant Gary Reiber on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
229 SUMMONS Returned Executed upon defendant Verlyn Luebbe on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
230 SUMMONS Returned Executed upon defendant Dwaine W. Ladwig on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
231 SUMMONS Returned Executed upon defendant Greg Magee on 12/27/2009. (Dornan, Stuart) (Entered: 01/13/2010)
232 SUMMONS Returned Executed upon defendant Gene Mahon on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
233 SUMMONS Returned Executed upon defendant James R. Marr on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
234 SUMMONS Returned Executed upon defendant Ben Matchett on 12/23/2009. (Dornan, Stuart) (Entered: 01/13/2010)
235 SUMMONS Returned Executed upon defendant Robert S. McBride on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)

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236 SUMMONS Returned Executed upon defendant Jerry McDole on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
237 SUMMONS Returned Executed upon defendant Chris Kleinberg on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
238 SUMMONS Returned Executed upon defendant Donald Klug on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
239 SUMMONS Returned Executed upon defendant Larry Koranda on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
240 SUMMONS Returned Executed upon defendant Jerome Kramer on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
241 SUMMONS Returned Executed upon defendant Paul J. Kruse on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
242 SUMMONS Returned Executed upon defendant Gary Lacey on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
243 SUMMONS Returned Executed upon defendant Tammy Mowry on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
244 SUMMONS Returned Executed upon defendant Timothy S. Mullen on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
245 SUMMONS Returned Executed upon defendant Ron Murtaugh on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
246 SUMMONS Returned Executed upon defendant Tom Nutt on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
247 SUMMONS Returned Executed upon defendant Lynn Nichols on 12/23/2009. (Dornan, Stuart) (Entered: 01/13/2010)
248 SUMMONS Returned Executed upon defendant James D. Owens on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
249 SUMMONS Returned Executed upon defendant Jeffrey S. Ortgies on 12/23/2009. (Dornan, Stuart) (Entered: 01/13/2010)
250 SUMMONS Returned Executed upon defendant Patrick McNeil on 12/23/2009. (Dornan, Stuart) (Entered: 01/13/2010)
251 SUMMONS Returned Executed upon defendant Jean Rhodes on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
252 SUMMONS Returned Executed upon defendant Randall Ritnour on 12/28/2009. (Dornan, Stuart) (Entered: 01/13/2010)
253 SUMMONS Returned Executed upon defendant Terry Robbins on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
254 SUMMONS Returned Executed upon defendant Timothy Sutherland on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
255 SUMMONS Returned Executed upon defendant Scott J. Tingelhoff on 12/23/2009. (Dornan, Stuart) (Entered: 01/13/2010)
256 SUMMONS Returned Executed upon defendant John Thomas on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
257 SUMMONS Returned Executed upon defendant Michael Unger on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
258 SUMMONS Returned Executed upon defendant Paul J. Vaughan on 12/29/2009. (Dornan, Stuart) (Entered: 01/13/2010)
259 SUMMONS Returned Executed upon defendant George G. Vinton on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)

01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010

260 SUMMONS Returned Executed upon defendant Steve Vinton on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
261 SUMMONS Returned Executed upon defendant Daniel Rupp on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
262 SUMMONS Returned Executed upon defendant Paul B. Schaub on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
263 SUMMONS Returned Executed upon defendant Timothy S. Schmidt on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
264 SUMMONS Returned Executed upon defendant Anthony McPhillips on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
265 SUMMONS Returned Executed upon defendant Bryan S. McQuay on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
266 SUMMONS Returned Executed upon defendant James J. McNally on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
267 SUMMONS Returned Executed upon defendant Tammy Maul−Bodlak on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
268 SUMMONS Returned Executed upon defendant Douglas E. Merz on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
269 SUMMONS Returned Executed upon defendant Doug Miller on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
270 SUMMONS Returned Executed upon defendant Neil A. Miller on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
271 SUMMONS Returned Executed upon defendant K. Patrick Mooney on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
272 SUMMONS Returned Executed upon defendant Alan Moore on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
273 SUMMONS Returned Executed upon defendant Dale Radcliff on 12/23/2009. (Dornan, Stuart) (Entered: 01/13/2010)
274 SUMMONS Returned Executed upon defendant Rodney Wetovick on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
275 SUMMONS Returned Executed upon defendant Jason White on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
276 SUMMONS Returned Executed upon defendant Scott K. White on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
277 SUMMONS Returned Executed upon defendant David L. Wilson on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
278 SUMMONS Returned Executed upon defendant Todd D. Wilson on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
279 SUMMONS Returned Executed upon defendant David G. Wondra on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
280 SUMMONS Returned Executed upon defendant Paul Wood on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
281 SUMMONS Returned Executed upon defendant Joe Yocum on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
282 SUMMONS Returned Executed upon defendant Mark Young on 12/28/2009. (Dornan, Stuart) (Entered: 01/13/2010)
283 SUMMONS Returned Executed upon defendant John Zavadil on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)

01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/13/2010 01/15/2010
01/19/2010
01/20/2010

284 SUMMONS Returned Executed upon defendant Dennis Ocken on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
285 SUMMONS Returned Executed upon defendant James L. Wagner on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
286 SUMMONS Returned Executed upon defendant Terry Wagner on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
287 SUMMONS Returned Executed upon defendant Tiffany Wasserburger on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
288 SUMMONS Returned Executed upon defendant Jerry Watson on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
289 SUMMONS Returned Executed upon defendant David C. Weeks on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
290 SUMMONS Returned Executed upon defendant James P. Wenzl on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
291 SUMMONS Returned Executed upon defendant Bill Simpson on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
292 SUMMONS Returned Executed upon defendant Joseph M. Smith on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
293 SUMMONS Returned Executed upon defendant Nels Sorensen on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
294 SUMMONS Returned Executed upon defendant David Spiegel on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
295 SUMMONS Returned Executed upon defendant James Swanson on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
296 SUMMONS Returned Executed upon defendant Richard H. Roberts on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
297 SUMMONS Returned Executed upon defendant Richard Roberts on 1/11/2010. (Dornan, Stuart) (Entered: 01/13/2010)
298 SUMMONS Returned Executed upon defendant David T. Schroeder on 1/8/2010. (Dornan, Stuart) (Entered: 01/13/2010)
299 SUMMONS Returned Executed upon defendant Kirk W. Handrup on 1/8/2010. (Dornan, Stuart) (Entered: 01/13/2010)
300 SUMMONS Returned Executed upon defendant Jeff Franklin on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
301 SUMMONS Returned Executed upon defendant Steve Hespen on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
302 SUMMONS Returned Executed upon defendant Kevin Stukenholtz on 12/22/2009. (Dornan, Stuart) (Entered: 01/13/2010)
303 NOTICE of Limited Participation by County Officials by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma (Spohn, Katherine) (Entered: 01/15/2010)
304 MOTION to Withdraw as Attorney Blake T. Richards by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe and Jane Doe 1 through 20, John Doe and Jane Doe A through K.(Dornan, Stuart) (Entered: 01/19/2010)
305 MEMORANDUM AND ORDER − Counsel shall review the attachment listing all pending motions in these cases. Counsel shall be prepared to state their positions with respect to the pending motions and with respect to further progression of these cases. (Attachments: # 1 Pending Motions)Ordered by Judge Richard G. Kopf. (GJG) (Entered: 01/20/2010)

01/20/2010
01/21/2010 01/21/2010 01/21/2010
01/22/2010 01/25/2010 01/25/2010 01/28/2010 01/29/2010

306 TEXT ORDER − Regarding Magistrate Judge Zwart's Docket (General Order 2010−01). All cases previously assigned to District Judge Richard G. Kopf for pretrial management are herewith reassigned to Magistrate Judge Zwart. Magistrate Judge Zwart shall be paired with Judges Kopf and Urbom for the management of civil and criminal cases on Judges Kopf and Urbom's dockets. The Clerk of the Court shall provide notice of this order to counsel or parties in all cases which are reassigned to Magistrate Judge Zwart and for which there are currently matters pending. Notice need not be given in closed cases for which there are no matters pending. Ordered by Chief Judge Joseph F. Bataillon. (JLS, ) (Entered: 01/20/2010)
307 TEXT MINUTE ENTRY for proceedings held before Judge Richard G. Kopf and Magistrate Judge Cheryl R. Zwart in Lincoln on 1/21/2010. Status Conference Hearing held by telephone in Courtroom No. 1. Order forthcoming. Appearance for Plaintiffs: Stu Dornan, Thomas Monaghan, Joshua Weir, and Rodney Dahlquist, Jr.; State Defendants: David Cookson, Katherine Spahn; Douglas County Defendants: Jeffrey Lux; Sarpy County Defendants: Mike Smith and Tricia Freeman; Courtroom Deputy: Colleen Beran; Court Reporter: Digital. Time Commenced: 8:30 a.m.Time Concluded: 9:22 a.m. (CCB) (Entered: 01/21/2010)
308 AUDIO FILE (12.5 MB) regarding Status Conference 307 held on 01/21/10 at 8:30 a.m. before District Judge Richard G. Kopf. (CCB) (Entered: 01/21/2010)
309 MEMORANDUM AND ORDER − These six cases are consolidated for all purposes including trial and discovery. Counsel and the Clerk are ordered to proceed as follows when filing documents and otherwise processing these cases. John Doe, et al., v. State of Nebraska, et al., Case No. 8:09CV456 (D. Neb. 2009) is hereby designated as the "Lead Case." The other five cases are each designated as a "Member Case". The motions to consolidate (filings No. 82 and 88 in 8:09CV456; filing 11 in 4:09CV3258; filing 2 in 4:09CV3266) are granted as provided herein but otherwise denied. By agreement of the parties, any demand for a jury is withdrawn. The consolidated cases are designated as non−jury cases. By agreement of the parties, all plaintiffs shall have the benefit of the preliminary injunction previously issued in the "Lead Case." This matter is referred to Judge Zwart for further progression and the issuance of scheduling packet tailored to the needs of the consolidated cases. Each of the defendants is given until February 8, 2010 to answer or further plead. The motion for extension of time (filing 12 in 4:09CV3266) is granted as provided herein and otherwise denied. The motion to intervene and related motion to use fictitious names (filings 70 and 71 in 8:09CV456) are denied without prejudice because no proposed pleading was filed as required by Fed. R. Civ. P. 24(c). The motions to withdraw as attorneys (filings 94 and 304 in 8:09CV456) are granted. The motion to remand (filing 8 in 4:09CV3266) is denied. Ordered by Judge Richard G. Kopf. (GJG) (Entered: 01/21/2010)
312 Copy of ADMINISTRATIVE ORDER from the Nebraska Supreme Court and Nebraska Court of Appeals regarding case In re Appl for Exercise of Administrative Authority of Chief Justice, case number S−33−100002. Member Cases: 8:09−cv−00456−RGK−CRZ et al.(JAB) (Entered: 01/25/2010)
310 MEMORANDUM AND ORDER − On or before February 26, 2010, counsel for the parties in all six cases shall confer, either in person, telephonically, or by facsimile or electronic mail, to jointly complete the attached Rule 26(f) Report. If an initial planning conference is not warranted and the parties can agree on all the deadlines identified in the Rule 26(f) Report, the Report shall be completed and filed on or before March 5, 2010. Member Cases: 8:09−cv−00456−RGK−CRZ et al. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB) (Entered: 01/25/2010)
311 NOTICE of Limited Participation by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, Nebraska State Patrol, Nebraska, State of, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:10−cv−03004−RGK−CRZ(Spohn, Katherine) (Entered: 01/25/2010)
313 REQUEST FOR TRANSCRIPT for proceedings held on December 23, 2009 before District Judge Richard G. Kopf by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe and Jane Doe 1 through 20, John Doe and Jane Doe A through K.(Dornan, Stuart) (Entered: 01/28/2010)
314 LETTER BY CLERK that a CD was sent to Sue DeVetter for transcription regarding Order on Motion for Miscellaneous Relief, Motion Hearing, (76 in

02/05/2010 02/08/2010

8:09−cv−00456−RGK−CRZ, 76 in 8:09−cv−00456−RGK−CRZ). Transcript ordered by Stuart J. Dornan. THE PDF DOCUMENT IS RESTRICTED PURSUANT TO THE E−GOVERNMENT ACT. ACCESS IS LIMITED TO COUNSEL OF RECORD AND THE COURT. Member Cases: 8:09−cv−00456−RGK−CRZ et al.(SLP) (Entered: 01/29/2010)
315 NOTICE of Limited Participation by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, David Heineman, Lancaster County Sheriff, Lincoln Police Dept., Nebraska State Patrol, Jon Bruning, Jeff Davis, Nebraska State Patrol, Lee Polikov, State of Nebraska, Bryan Tuma, Jon Bruning, Alex Hayes, Nebraska State Patrol, Bryan Tuma, Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis D. Botelho, Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark, Glenn Clark, Ronald E. Colling, Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Fegler Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas B. Donner, Thomas Dow, Patrick A. Duncan, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George L. Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, Kathleen J. Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, James D. Owens, Douglas D. Palik, David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie L. Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H. Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul B. Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott, Eric Scott, Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David M. Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James L. Zimmerman, Jon Bruning, Martin Gutschenritter, Rebecca Harling, Jerome Kramer, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Jon Bruning, Thomas K. Casady, Gary Lacey, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Terry Wagner Member Cases: 8:09−cv−00456−RGK−CRZ et al.(Spohn, Katherine) (Entered: 02/05/2010)
316 ANSWER to Complaint,,,,,,,,,,,,, 1 by Attorney Katherine J. Spohn on behalf of Defendants Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis D. Botelho, Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark, Glenn Clark, Ronald E. Colling, Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Fegler Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas B. Donner, Thomas Dow, Patrick A. Duncan, Timothy F. Dunning, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake

02/25/2010

Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George L. Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, Kathleen J. Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald W. Kleine, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, James D. Owens, Douglas D. Palik, David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie L. Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H. Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul B. Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott, Eric Scott, Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David M. Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James L. Zimmerman(Spohn, Katherine) (Entered: 02/08/2010)
317 MOTION for Summary Judgment by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, David Heineman, Lancaster County Sheriff, Lincoln Police Dept., Nebraska State Patrol, Jon Bruning, Jeff Davis, Nebraska State Patrol, Lee Polikov, State of Nebraska, Bryan Tuma, Jon Bruning, Timothy F. Dunning, Alex Hayes, Donald W. Kleine, Nebraska State Patrol, Bryan Tuma, Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis D. Botelho, Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark, Glenn Clark, Ronald E. Colling, Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Fegler Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas B. Donner, Thomas Dow, Patrick A. Duncan, Timothy F. Dunning, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George L. Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, Kathleen J. Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald W. Kleine, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies,

02/25/2010

James D. Owens, Douglas D. Palik, David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie L. Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H. Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul B. Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott, Eric Scott, Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David M. Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James L. Zimmerman, Jon Bruning, Martin Gutschenritter, Rebecca Harling, Jerome Kramer, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Jon Bruning, Thomas K. Casady, Gary Lacey, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Terry Wagner.Member Cases: 8:09−cv−00456−RGK−CRZ et al.(Spohn, Katherine) (Entered: 02/25/2010)
318 BRIEF in support of MOTION for Summary Judgment(317 in 8:09−cv−00456−RGK−CRZ) by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, David Heineman, Lancaster County Sheriff, Lincoln Police Dept., Nebraska State Patrol, Jon Bruning, Jeff Davis, Nebraska State Patrol, Lee Polikov, State of Nebraska, Bryan Tuma, Jon Bruning, Timothy F. Dunning, Alex Hayes, Donald W. Kleine, Nebraska State Patrol, Bryan Tuma, Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis D. Botelho, Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark, Glenn Clark, Ronald E. Colling, Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Fegler Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas B. Donner, Thomas Dow, Patrick A. Duncan, Timothy F. Dunning, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George L. Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, Kathleen J. Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald W. Kleine, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, James D. Owens, Douglas D. Palik, David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie L. Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H. Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul B. Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott, Eric Scott, Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David M. Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David

02/25/2010

G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James L. Zimmerman, Jon Bruning, Martin Gutschenritter, Rebecca Harling, Jerome Kramer, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Jon Bruning, Thomas K. Casady, Gary Lacey, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Terry Wagner. (Attachments: # 1 Appendix 1, # 2 Appendix 2)Member Cases: 8:09−cv−00456−RGK−CRZ et al.(Spohn, Katherine) (Entered: 02/25/2010)
319 INDEX in support of MOTION for Summary Judgment(317 in 8:09−cv−00456−RGK−CRZ) by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, David Heineman, Lancaster County Sheriff, Lincoln Police Dept., Nebraska State Patrol, Jon Bruning, Jeff Davis, Nebraska State Patrol, Lee Polikov, State of Nebraska, Bryan Tuma, Jon Bruning, Timothy F. Dunning, Alex Hayes, Donald W. Kleine, Nebraska State Patrol, Bryan Tuma, Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis D. Botelho, Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark, Glenn Clark, Ronald E. Colling, Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Fegler Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas B. Donner, Thomas Dow, Patrick A. Duncan, Timothy F. Dunning, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George L. Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, Kathleen J. Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald W. Kleine, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, James D. Owens, Douglas D. Palik, David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie L. Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H. Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul B. Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott, Eric Scott, Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David M. Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James L. Zimmerman, Jon Bruning, Martin Gutschenritter, Rebecca Harling, Jerome Kramer, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Jon Bruning, Thomas K. Casady, Gary Lacey, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Terry Wagner. (Attachments: # 1 Affidavit of David D. Cookson, # 2 Exhibit 1 to Affidavit of David D. Cookson, # 3 Exhibit 2 to Affidavit of David D. Cookson, # 4 Affidavit of Shawn Edwards, # 5 Exhibit 1a to Affidavit of Shawn Edwards, # 6 Exhibit 1b to Affidavit of Shawn Edwards,

02/25/2010
02/25/2010 02/26/2010

# 7 Exhibit 2 to Affidavit of Shawn Edwards, # 8 Affidavit of Leslie Levy)Member Cases: 8:09−cv−00456−RGK−CRZ et al.(Spohn, Katherine) (Entered: 02/25/2010)
320 MOTION to Stay Discovery by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, David Heineman, Lancaster County Sheriff, Lincoln Police Dept., Nebraska State Patrol, Jon Bruning, Jeff Davis, Nebraska State Patrol, Lee Polikov, State of Nebraska, Bryan Tuma, Jon Bruning, Timothy F. Dunning, Alex Hayes, Donald W. Kleine, Nebraska State Patrol, Bryan Tuma, Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis D. Botelho, Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark, Glenn Clark, Ronald E. Colling, Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Fegler Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas B. Donner, Thomas Dow, Patrick A. Duncan, Timothy F. Dunning, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George L. Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, Kathleen J. Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald W. Kleine, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, James D. Owens, Douglas D. Palik, David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie L. Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H. Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul B. Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott, Eric Scott, Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David M. Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James L. Zimmerman, Jon Bruning, Martin Gutschenritter, Rebecca Harling, Jerome Kramer, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Jon Bruning, Thomas K. Casady, Gary Lacey, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Terry Wagner.Member Cases: 8:09−cv−00456−RGK−CRZ et al.(Spohn, Katherine) (Entered: 02/25/2010)
321 Mail Returned as Undeliverable addressed to sallen@megavision.com regarding filings 317 , 318 , 319 and 320 in this case and the same documents in consolidated cases. E−mail not remailed, attorney is no longer with the Platte County Attorney's Office. New Platte County Attorney will file substitution of counsel. Member Cases: 8:09−cv−00456−RGK−CRZ et al.(JAB) (Entered: 02/25/2010)
322 TEXT NOTICE OF INDEX OF EVIDENCE (23 in 4:10−cv−03004−RGK−CRZ, 18 in 4:10−cv−03005−RGK−CRZ, 24 in 4:09−cv−03266−RGK−CRZ, 17 in 4:10−cv−03003−RGK−CRZ, 318 in 8:09−cv−00456−RGK−CRZ, 34 in 4:09−cv−03258−RGK−CRZ) by Deputy Clerk. Pursuant to NECivR 7.0.1(a)(2) and

02/26/2010 02/26/2010
03/01/2010

(b)(2), evidence in support of a motion or brief shall be identified on an electronically−filed index of evidence. The index of evidence must identify the motion or brief to which it relates. Attachments to the index must be described using the System−generated prompt box. This notice is for your information for future filings.Member Cases: 8:09−cv−00456−RGK−CRZ et al.(JAB) Modified on 2/26/2010 to reflect attachments to the brief are a comparison requested by the Judge in order 50 , not evidence. (JAB) (Entered: 02/26/2010)
323 MOTION to Withdraw as Attorney of Record by Attorney Carl K. Hart, Jr on behalf of Defendant Sandra J. Allen.(Hart, Carl) (Entered: 02/26/2010)
324 MEMORANDUM AND ORDER that a telephonic conference will be held before the undersigned magistrate judge on 3/1/2010 at 3:00 p.m. Counsel for the defendants shall place the call as ordered by Magistrate Judge Cheryl R. Zwart. Member Cases: 8:09−cv−00456−RGK−CRZ et al. (SED) (Entered: 02/26/2010)
325 Joint STIPULATION regarding MOTION to Stay Discovery(320 in 8:09−cv−00456−RGK−CRZ) by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, David Heineman, Lancaster County Sheriff, Lincoln Police Dept., Nebraska State Patrol, Jon Bruning, Jeff Davis, Nebraska State Patrol, Lee Polikov, State of Nebraska, Bryan Tuma, Jon Bruning, Timothy F. Dunning, Alex Hayes, Donald W. Kleine, Nebraska State Patrol, Bryan Tuma, Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis D. Botelho, Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark, Glenn Clark, Ronald E. Colling, Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Fegler Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas B. Donner, Thomas Dow, Patrick A. Duncan, Timothy F. Dunning, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George L. Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, Kathleen J. Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald W. Kleine, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, James D. Owens, Douglas D. Palik, David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie L. Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H. Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul B. Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott, Eric Scott, Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David M. Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James L. Zimmerman, Jon Bruning, Martin Gutschenritter, Rebecca Harling, Jerome Kramer, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Jon Bruning, Thomas K. Casady, Gary Lacey, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Terry

03/02/2010 03/03/2010 03/03/2010
03/15/2010

Wagner.Member Cases: 8:09−cv−00456−RGK−CRZ et al.(Spohn, Katherine) (Entered: 03/01/2010)
326 TRANSCRIPT (UNREDACTED) of preliminary injunction proceedings before District Judge Richard G. Kopf held on December 23, 2009. Number of Pages: 119. The transcript can only be viewed at the court's public terminal or purchased through Court Reporter/Transcriber Susan M. DeVetter at (402) 661−7309 or suedevetter@yahoo.com before the expiration of the Release of Transcript Restriction deadline. The parties have 5 business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Click here to view the Transcript Redaction Procedure. Redaction Request due 3/23/2010. Redacted Transcript Deadline set for 4/2/2010. Release of Transcript Restriction set for 6/1/2010. (SMD) (Entered: 03/02/2010)
327 MEMORANDUM AND ORDER − The unopposed motion to withdraw filed by former Platte County Attorney, Sandra J. Allen, and acting Platte County Attorney, Carl K. Hart, Jr., as counsel of record for Platte County, Nebraska, (filing no. 323 ), is granted. Ordered by Magistrate Judge Cheryl R. Zwart. (GJG) (Entered: 03/03/2010)
328 MEMORANDUM AND ORDER granting (320) Motion to Stay; granting (325) Stipulation in case 8:09−cv−00456−RGK−CRZ; granting (36) Motion to Stay; granting (41) Stipulation in case 4:09−cv−03258−RGK−CRZ; granting (26) Motion to Stay; granting (30) Stipulation in case 4:09−cv−03266−RGK−CRZ; granting (19) Motion to Stay; granting (24) Stipulation in case 4:10−cv−03003−RGK−CRZ; granting (29) Stipulation; granting (25) Motion to Stay in case 4:10−cv−03004−RGK−CRZ; granting (20) Motion to Stay; granting (24) Stipulation in case 4:10−cv−03005−RGK−CRZ. Parties to be added and their Declarations shall be filed on or before March 15, 2010. Any Motion for Certification of State Law Questions to the Nebraska Supreme Court shall be filed by March 15, 2010. Plaintiffs shall file any opposition to Defendants Motion for Summary Judgment or their own Cross Motions for Summary Judgment and supporting briefs by May 1,2010. The deadline for filing the parties Rule 26(f) Report, previously set for March 5, 2010, is continued until thirty days following the courts ruling on defendants' motions for summary judgment. Member Cases: 8:09−cv−00456−RGK−CRZ et al.Ordered by Magistrate Judge Cheryl R. Zwart. (GJG) (Entered: 03/03/2010)
329 AMENDED COMPLAINT against Defendant Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis D. Botelho, Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark(County Attorneys (Blaine)), Glenn Clark(County Attorneys (Valley)), Ronald E. Colling, Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Fegler Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas B. Donner, Thomas Dow, Patrick A. Duncan, Timothy F. Dunning, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George L. Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, Kathleen J. Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald W. Kleine, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, James D. Owens, Douglas D. Palik,

03/15/2010 03/15/2010 03/15/2010 03/22/2010

David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie L. Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H. Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul B. Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott(County Attorneys (Keya Paha)), Eric Scott(County Attorneys (Cherry)), Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David M. Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James L. Zimmerman, by Attorney Stuart J. Dornan on behalf of John Doe and Jane Doe 1 through 20, John Doe and Jane Doe A through K(Dornan, Stuart) (Entered: 03/15/2010)
330 INDEX in support of Amended Complaint,,,,,,,,,,,,, 329 by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe and Jane Doe 1 through 20, John Doe and Jane Doe A through K. (Attachments: # 1 Exhibit Declarations of Does 21−36)(Dornan, Stuart) (Entered: 03/15/2010)
331 MOTION for Certification of State Law Questions to the Nebraska Supreme Court by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe and Jane Doe 1 through 20, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK−CRZ et al.(Dornan, Stuart) (Entered: 03/15/2010)
332 BRIEF in support of MOTION for Certification of State Law Questions to the Nebraska Supreme Court(26 in 4:10−cv−03005−RGK−CRZ) by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe and Jane Doe 1 through 20, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK−CRZ et al.(Dornan, Stuart) (Entered: 03/15/2010)
333 ANSWER to Amended Complaint,,,,,,,,,,,,, 329 by Attorney Katherine J. Spohn on behalf of Defendants Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis D. Botelho, Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark, Glenn Clark, Ronald E. Colling, Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Fegler Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas B. Donner, Thomas Dow, Patrick A. Duncan, Timothy F. Dunning, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George L. Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, Kathleen J. Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald W. Kleine, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, James D. Owens, Douglas D. Palik, David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie L. Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H.

03/23/2010 03/29/2010

Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul B. Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott, Eric Scott, Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David M. Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James L. Zimmerman(Spohn, Katherine) (Entered: 03/22/2010)
334 ORDER TO SHOW CAUSE that Attorney Todd D. Wilson is to register for the System. Show Cause Deadline set for 4/9/2010.Ordered by Magistrate Judge Cheryl R. Zwart. (Copies mailed (MKR) (Entered: 03/23/2010)
335 BRIEF in opposition to MOTION for Certification of State Law Questions to the Nebraska Supreme Court(331 in 8:09−cv−00456−RGK−CRZ) by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, David Heineman, Lancaster County Sheriff, Lincoln Police Dept., Nebraska State Patrol, Jon Bruning, Jeff Davis, Nebraska State Patrol, Lee Polikov, State of Nebraska, Bryan Tuma, Jon Bruning, Timothy F. Dunning, Alex Hayes, Donald W. Kleine, Nebraska State Patrol, Bryan Tuma, Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis D. Botelho, Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark, Glenn Clark, Ronald E. Colling, Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Fegler Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas B. Donner, Thomas Dow, Patrick A. Duncan, Timothy F. Dunning, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George L. Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, Kathleen J. Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald W. Kleine, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, James D. Owens, Douglas D. Palik, David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie L. Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H. Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul B. Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott, Eric Scott, Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David M. Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James L. Zimmerman, Jon Bruning, Martin Gutschenritter, Rebecca Harling, Jerome Kramer, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Jon Bruning, Thomas K.

04/06/2010 04/06/2010

Casady, Gary Lacey, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Terry Wagner.Member Cases: 8:09−cv−00456−RGK−CRZ et al.(Spohn, Katherine) (Entered: 03/29/2010)
336 Amended MOTION for Summary Judgment by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, David Heineman, Lancaster County Sheriff, Lincoln Police Dept., Nebraska State Patrol, Jon Bruning, Jeff Davis, Nebraska State Patrol, Lee Polikov, State of Nebraska, Bryan Tuma, Jon Bruning, Timothy F. Dunning, Alex Hayes, Donald W. Kleine, Nebraska State Patrol, Bryan Tuma, Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis D. Botelho, Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark, Glenn Clark, Ronald E. Colling, Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Fegler Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas B. Donner, Thomas Dow, Patrick A. Duncan, Timothy F. Dunning, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George L. Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, Kathleen J. Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald W. Kleine, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, James D. Owens, Douglas D. Palik, David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie L. Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H. Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul B. Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott, Eric Scott, Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David M. Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James L. Zimmerman, Jon Bruning, Martin Gutschenritter, Rebecca Harling, Jerome Kramer, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Jon Bruning, Thomas K. Casady, Gary Lacey, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Terry Wagner.Member Cases: 8:09−cv−00456−RGK−CRZ et al.(Spohn, Katherine) (Entered: 04/06/2010)
337 BRIEF in support of Amended MOTION for Summary Judgment(336 in 8:09−cv−00456−RGK−CRZ) by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, David Heineman, Lancaster County Sheriff, Lincoln Police Dept., Nebraska State Patrol, Jon Bruning, Jeff Davis, Nebraska State Patrol, Lee Polikov, State of Nebraska, Bryan Tuma, Jon Bruning, Timothy F. Dunning, Alex Hayes, Donald W. Kleine, Nebraska State Patrol, Bryan Tuma, Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis D. Botelho, Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark, Glenn Clark, Ronald E. Colling,

04/06/2010

Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Fegler Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas B. Donner, Thomas Dow, Patrick A. Duncan, Timothy F. Dunning, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George L. Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, Kathleen J. Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald W. Kleine, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, James D. Owens, Douglas D. Palik, David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie L. Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H. Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul B. Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott, Eric Scott, Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David M. Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James L. Zimmerman, Jon Bruning, Martin Gutschenritter, Rebecca Harling, Jerome Kramer, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Jon Bruning, Thomas K. Casady, Gary Lacey, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Terry Wagner.Member Cases: 8:09−cv−00456−RGK−CRZ et al.(Spohn, Katherine) (Entered: 04/06/2010)
338 INDEX in support of Amended MOTION for Summary Judgment(336 in 8:09−cv−00456−RGK−CRZ) by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, David Heineman, Lancaster County Sheriff, Lincoln Police Dept., Nebraska State Patrol, Jon Bruning, Jeff Davis, Nebraska State Patrol, Lee Polikov, State of Nebraska, Bryan Tuma, Jon Bruning, Timothy F. Dunning, Alex Hayes, Donald W. Kleine, Nebraska State Patrol, Bryan Tuma, Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis D. Botelho, Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark, Glenn Clark, Ronald E. Colling, Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Fegler Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas B. Donner, Thomas Dow, Patrick A. Duncan, Timothy F. Dunning, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George L. Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, Kathleen J. Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald W.

04/07/2010

Kleine, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, James D. Owens, Douglas D. Palik, David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie L. Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H. Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul B. Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott, Eric Scott, Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David M. Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James L. Zimmerman, Jon Bruning, Martin Gutschenritter, Rebecca Harling, Jerome Kramer, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Jon Bruning, Thomas K. Casady, Gary Lacey, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Terry Wagner. (Attachments: # 1 Affidavit of David D. Cookson, # 2 Exhibit 1 to Affidavit of David D. Cookson, # 3 Exhibit 2 to Affidavit of David D. Cookson, # 4 Affidavit of Shawn Edwards, # 5 Exhibit 1a to Affidavit of Shawn Edwards, # 6 Exhibit 1b to Affidavit of Shawn Edwards, # 7 Exhibit 2 to Affidavit of Shawn Edwards, # 8 Affidavit of Leslie Levy)Member Cases: 8:09−cv−00456−RGK−CRZ et al.(Spohn, Katherine) (Entered: 04/06/2010)
339 BRIEF in support of Amended MOTION for Summary Judgment(336 in 8:09−cv−00456−RGK−CRZ) Amended by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, David Heineman, Lancaster County Sheriff, Lincoln Police Dept., Nebraska State Patrol, Jon Bruning, Jeff Davis, Nebraska State Patrol, Lee Polikov, State of Nebraska, Bryan Tuma, Jon Bruning, Timothy F. Dunning, Alex Hayes, Donald W. Kleine, Nebraska State Patrol, Bryan Tuma, Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis D. Botelho, Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark, Glenn Clark, Ronald E. Colling, Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Fegler Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas B. Donner, Thomas Dow, Patrick A. Duncan, Timothy F. Dunning, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George L. Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, Kathleen J. Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald W. Kleine, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony

04/15/2010
04/16/2010 04/16/2010 04/19/2010 04/30/2010
04/30/2010
04/30/2010

McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, James D. Owens, Douglas D. Palik, David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie L. Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H. Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul B. Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott, Eric Scott, Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David M. Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James L. Zimmerman, Jon Bruning, Martin Gutschenritter, Rebecca Harling, Jerome Kramer, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Jon Bruning, Thomas K. Casady, Gary Lacey, Nebraska State Patrol, Nebraska, State of, Bryan Tuma, Terry Wagner. (Attachments: # 1 Appendix 1, # 2 Appendix 2)Member Cases: 8:09−cv−00456−RGK−CRZ et al.(Spohn, Katherine) (Entered: 04/07/2010)
340 MEMORANDUM AND ORDER denying (331) Motion for Certification of State Law Questions to the Nebraska Supreme Court in case 8:09−cv−00456−RGK−CRZ (filing (43) in case 4:09−cv−03258−RGK−CRZ; filing (32) in case 4:09−cv−03266−RGK−CRZ; filing (26) in case 4:10−cv−03003−RGK−CRZ; filing (31) in case 4:10−cv−03004−RGK−CRZ; filing(26) in case 4:10−cv−03005−RGK−CRZ) Member Cases: 8:09−cv−00456−RGK−CRZ et al.Ordered by Judge Richard G. Kopf. (ADB, ) (Entered: 04/15/2010)
341 MOTION to Withdraw as Attorney by Attorney Richard C. Anderson on behalf of Defendant Thomas K. Casady.(Anderson, Richard) (Entered: 04/16/2010)
342 NOTICE of Appearance by Attorney Tonya L. Peters on behalf of Defendant Thomas K. Casady (Peters, Tonya) (Entered: 04/16/2010)
343 ORDER granting (341) Motion to Withdraw as Attorney in case 8:09−cv−00456. Member Cases: 8:09−cv−00456−RGK−CRZ et al. Ordered by Magistrate Judge Cheryl R. Zwart. (JSF) (Entered: 04/19/2010)
344 MOTION for Summary Judgment (Plaintiff's Objection to Defendants' Motion for Summary Judgment and Cross−Motion for Summary Judgment by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 04/30/2010)
345 BRIEF in support of Plaintiff's Objection to Defendants' Motion for Summary Judgment and Cross−Motion for Summary Judgment by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 04/30/2010)
346 INDEX in support of Brief, (36 in 4:10−cv−03005−RGK−CRZ, 345 in 8:09−cv−00456−RGK−CRZ, 42 in 4:09−cv−03266−RGK−CRZ) in Support of Plaintiff's Objections to Defendants' Motion for Summary Judgment and Cross−Motion for Summary Judgment by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K. (Attachments: # 1 Exhibit #1 − Part 1 Transcript of Preliminary Injunction Hearing, # 2 Exhibit #1 − Part 2 Transcript of Preliminary Injunction Hearing,

05/06/2010 05/07/2010

# 3 Exhibit #2 Skaggs v. NSP Brief, # 4 Exhibit #3 Skaggs v. NSP Order, # 5 Exhibit #4 Journal Star Article, # 6 Exhibit #5 NSP SOR Home Page, # 7 Exhibit #6 NSP SOR Search Page, # 8 Exhibit #7 Notification of Responsibilities, # 9 Exhibit #8 Affidavit of Steven Donnelly, # 10 Exhibit #9 Declaration of John Doe, # 11 Exhibit #10 − #16 Second Declarations of Does 2, 7, 12, 15, 22, 28 and 36, # 12 Exhibit #17 Legislature Committee Statement)Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 04/30/2010)
347 STIPULATION by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, Jeff Davis, Nebraska State Patrol, Lee Polikov, State of Nebraska, Bryan Tuma, Jon Bruning, Timothy F. Dunning, Alex Hayes, Donald W. Kleine, Nebraska State Patrol, Bryan Tuma, Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis D. Botelho, Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark, Glenn Clark, Ronald E. Colling, Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Fegler Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas B. Donner, Thomas Dow, Patrick A. Duncan, Timothy F. Dunning, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George L. Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, Kathleen J. Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald W. Kleine, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, James D. Owens, Douglas D. Palik, David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie L. Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H. Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul B. Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott, Eric Scott, Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David M. Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James L. Zimmerman.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Spohn, Katherine) (Entered: 05/06/2010)
348 TEXT ORDER granting (347) Stipulation in case 8:09−cv−00456−RGK−CRZ. Defendants shall file their Response to Plaintiffs Cross−Motion for SummaryJudgment on or by May 28, 2010, and Plaintiffs Reply shall be filed on or by June 11, 2010. References to the Complaint (Filing 1) in Plaintiffs Brief in Support of their Objection to Defendants Motion for Summary Judgment and Cross−Motion for Summary

05/28/2010 05/28/2010

Judgment (Filing 345), are deemed to refer to Plaintiffs Amended Complaint (Filing 329). Member Cases: 8:09−cv−00456−RGK−CRZ et al.Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ, ) (Entered: 05/07/2010)
349 OBJECTION to Index,,,, (37 in 4:10−cv−03005−RGK−CRZ) Plaintiffs' Evidence in Support of Plaintiffs' Motion for Summary Judgment by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, Jeff Davis, Nebraska State Patrol, Lee Polikov, State of Nebraska, Bryan Tuma, Jon Bruning, Timothy F. Dunning, Alex Hayes, Donald W. Kleine, Nebraska State Patrol, Bryan Tuma, Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis D. Botelho, Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark, Glenn Clark, Ronald E. Colling, Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Fegler Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas B. Donner, Thomas Dow, Patrick A. Duncan, Timothy F. Dunning, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George L. Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, Kathleen J. Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald W. Kleine, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, James D. Owens, Douglas D. Palik, David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie L. Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H. Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul B. Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott, Eric Scott, Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David M. Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James L. Zimmerman.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Spohn, Katherine) (Entered: 05/28/2010)
350 BRIEF in support of OBJECTION to Index,,,, (37 in 4:10−cv−03005−RGK−CRZ) Plaintiffs' Evidence in Support of Plaintiffs' Motion for Summary JudgmentOBJECTION to Index,,,, (37 in 4:10−cv−03005−RGK−CRZ) Plaintiffs' Evidence in Support of Plaintiffs' Motion for Summary JudgmentOBJECTION to Index,,,, (37 in 4:10−cv−03005−RGK−CRZ) Plaintiffs' Evidence in Support of Plaintiffs' Motion for Summary JudgmentOBJECTION to Index,,,, (37 in 4:10−cv−03005−RGK−CRZ) Plaintiffs' Evidence in Support of Plaintiffs' Motion for Summary JudgmentOBJECTION to Index,,,, (37 in 4:10−cv−03005−RGK−CRZ) Plaintiffs' Evidence in Support of Plaintiffs' Motion for Summary JudgmentOBJECTION to Index,,,, (37 in 4:10−cv−03005−RGK−CRZ) Plaintiffs' Evidence in Support of Plaintiffs' Motion for Summary JudgmentOBJECTION to Index,,,, (37 in 4:10−cv−03005−RGK−CRZ) Plaintiffs' Evidence in Support of

05/28/2010

Plaintiffs' Motion for Summary JudgmentOBJECTION to Index,,,, (37 in 4:10−cv−03005−RGK−CRZ) Plaintiffs' Evidence in Support of Plaintiffs' Motion for Summary JudgmentOBJECTION to Index,,,, (37 in 4:10−cv−03005−RGK−CRZ) Plaintiffs' Evidence in Support of Plaintiffs' Motion for Summary JudgmentOBJECTION to Index,,,, (37 in 4:10−cv−03005−RGK−CRZ) Plaintiffs' Evidence in Support of Plaintiffs' Motion for Summary JudgmentOBJECTION to Index,,,, (37 in 4:10−cv−03005−RGK−CRZ) Plaintiffs' Evidence in Support of Plaintiffs' Motion for Summary JudgmentOBJECTION to Index,,,, (37 in 4:10−cv−03005−RGK−CRZ) Plaintiffs' Evidence in Support of Plaintiffs' Motion for Summary JudgmentOBJECTION to Index,,,, (37 in 4:10−cv−03005−RGK−CRZ) Plaintiffs' Evidence in Support of Plaintiffs' Motion for Summary JudgmentOBJECTION to Index,,,, (37 in 4:10−cv−03005−RGK−CRZ) Plaintiffs' Evidence in Support of Plaintiffs' Motion for Summary JudgmentOBJECTION to Index,,,, (37 in 4:10−cv−03005−RGK−CRZ) Plaintiffs' Evidence in Support of Plaintiffs' Motion for Summary Judgment(40 in 4:10−cv−03005−RGK−CRZ) by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, Jeff Davis, Nebraska State Patrol, Lee Polikov, State of Nebraska, Bryan Tuma, Jon Bruning, Timothy F. Dunning, Alex Hayes, Donald W. Kleine, Nebraska State Patrol, Bryan Tuma, Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis D. Botelho, Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark, Glenn Clark, Ronald E. Colling, Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Fegler Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas B. Donner, Thomas Dow, Patrick A. Duncan, Timothy F. Dunning, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George L. Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, Kathleen J. Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald W. Kleine, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, James D. Owens, Douglas D. Palik, David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie L. Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H. Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul B. Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott, Eric Scott, Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David M. Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James L. Zimmerman.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Spohn, Katherine) (Entered: 05/28/2010)
351 REPLY BRIEF in support of Amended MOTION for Summary Judgment(29 in 4:10−cv−03005−RGK−CRZ, 35 in 4:09−cv−03266−RGK−CRZ, 336 in 8:09−cv−00456−RGK−CRZ) by Attorney Katherine J. Spohn on behalf of Defendants

06/11/2010 06/11/2010

Jon Bruning, Jeff Davis, Nebraska State Patrol, Lee Polikov, State of Nebraska, Bryan Tuma, Jon Bruning, Timothy F. Dunning, Alex Hayes, Donald W. Kleine, Nebraska State Patrol, Bryan Tuma, Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis D. Botelho, Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark, Glenn Clark, Ronald E. Colling, Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Fegler Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas B. Donner, Thomas Dow, Patrick A. Duncan, Timothy F. Dunning, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George L. Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, Kathleen J. Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald W. Kleine, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, James D. Owens, Douglas D. Palik, David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie L. Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H. Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul B. Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott, Eric Scott, Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David M. Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James L. Zimmerman.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Spohn, Katherine) (Entered: 05/28/2010)
352 REPLY BRIEF in opposition to Reply Brief,,,,,,,,,,,,,, (48 in 4:09−cv−03266−RGK−CRZ, 351 in 8:09−cv−00456−RGK−CRZ, 42 in 4:10−cv−03005−RGK−CRZ) and Objection to Defendants' Brief in Support of Objection to Plaintiffs' Evidence by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 06/11/2010)
353 INDEX in support of Reply Brief,, (352 in 8:09−cv−00456−RGK−CRZ, 49 in 4:09−cv−03266−RGK−CRZ, 43 in 4:10−cv−03005−RGK−CRZ) and Objection to Defendants' Brief in Support of Objection to Plaintiffs' Evidence by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K. (Attachments: # 1 Exhibit #1 − Skaggs v. NSP BOE, # 2 Exhibit #2 − Skaggs v. NSP Order, # 3 Exhibit #3 − Legislative Committee Statement)Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ,

08/16/2010
08/17/2010 08/18/2010

4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 06/11/2010)
354 MEMORANDUM AND ORDER− Defendants original motion for summary judgment (Case No. 8:09CV456 filing 317 , Case No. 4:09CV3266 filing 23, Case No. 4:10CV3004 filing 22, Case No. 4:10CV3005 filing 17) is denied without prejudice, as moot. Defendants amended motion for summary judgment (Case No. 8:09CV456 filing 336 , Case No. 4:09CV3266 filing 35, Case No. 4:10CV3004 filing 34, Case No. 4:10CV3005 filing 29) is granted in part and denied in part, as set forth within the order. Plaintiffs motion for summary judgment (Case No. 8:09CV456 filing 344 , Case No. 4:09CV3266 filing 41, Case No. 4:10CV3005 filing 35) is granted in part and denied in part, as set forth within the order. Defendants objections to Plaintiffs exhibits (Case No. 8:09CV456 filing 349 , Case No. 4:09CV3266 filing 46, Case No. 4:10CV3005 filing 40) are denied without prejudice. Within 30 days, the parties shall provide me with a stipulation designating those Plaintiffs who fit within this categorysex offenders who were not on probation, parole or court−monitored supervision as of January 1, 2010 together with the date when the offender was no longer under criminal justice supervision. If, for some reason, the parties cannot reach agreement, they shall arrange a telephone conference with me by contacting my judicial assistant. These cases are referred to Magistrate Judge Zwart for further progression, as appropriate. (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Attachment C) Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03004−RGK−CRZ, 4:10−cv−03005−RGK−CRZOrdered by Judge Richard G. Kopf. (MKR) (Entered: 08/16/2010)
355 SCHEDULING PACKET − Rule 26 Meeting Report Deadline set for 9/15/2010. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03004−RGK−CRZ, 4:10−cv−03005−RGK−CRZOrdered by Magistrate Judge Cheryl R. Zwart. (GJG) (Entered: 08/17/2010)
356 NOTICE of Appearance by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Jeff Davis, Nebraska State Patrol, Lee Polikov, State of Nebraska, Bryan Tuma, Jon Bruning, Timothy F. Dunning, Alex Hayes, Donald W. Kleine, Nebraska State Patrol, Bryan Tuma, Sandra J. Allen, Jerry L. Archer, Warren R. Arganbright, Linda A. Bauer, Chris Becker, Ashley Boettcher, Francis D. Botelho, Bradley Boyum, Tim Brouillette, James D. Brueggman, William Brueggman, Jon Bruning, Vernon Buckminster, William Burgess, Thomas K. Casady, Dean Chase, Melvin Christensen, Glenn Clark, Glenn Clark, Ronald E. Colling, Nathan Cox, Dale Crandall, Jill R. Cunningham, Steven M. Curry, Karl Dailey, Donna Fegler Daiss, Jeff Davis, David Derickson, Larry D. Donner, Thomas B. Donner, Thomas Dow, Patrick A. Duncan, Timothy F. Dunning, Shawn R. Eatherton, Rick Eberhardt, John Edens, J. Adam Edmund, Blake Edwards, Tad D. Eickman, Wendy L. Elston, Gary Eng, Mark L. Eurek, Victor Faesser, Jeff Franklin, D. Eugene Garner, Harry J. Gillway, Shurie R. Graeve, James Gress, Ted S. Griess, William Gumm, Avery L. Gurnsey, Millard Gustafson, John Haller, Darrell Hamilton, Kirk W. Handrup, Steve Hapner, Rebecca R. Harling, Vance Haug, Alex Hayes, Willis Haynes, Shawn Hebbert, Mark Hecker, Ted Henderson, Thomas P. Herzog, Steve Hespen, George L. Hirschbach, Vern Hjorth, Timothy E. Hoeft, Julie Smith Hogancamp, Kirby Holloway, Leonard Houloose, Casey D. Hurlburt, Kathleen J. Hutchinson, James F. Janecek, LeRoy W. Janssen, Michael F. Janulewicz, Darrell Johnson, Lester E. Johnson, Kurt Kapperman, Dennis King, Jeff Kirsch, Chris Kleinberg, Donald W. Kleine, Donald Klug, Larry Koranda, Jerome Kramer, Paul J. Kruse, Gary Lacey, Dwaine W. Ladwig, W. Bert Lammli, Jim K. Lawson, David Lee, Bryan Leggott, Louie M. Ligouri, Adrian Lindsey, Michael Long, Brent Lottman, Verlyn Luebbe, Greg Magee, Gene Mahon, James R. Marr, Ben Matchett, Tammy Maul−Bodlak, Robert S. McBride, Jerry McDole, James J. McNally, Patrick McNeil, Anthony McPhillips, Bryan S. McQuay, Douglas E. Merz, Doug Miller, Neil A. Miller, Leland K. Miner, K. Patrick Mooney, Alan Moore, Davis Moore, A. James Moravek, John Morgan, Tammy Mowry, Kevin Mueller, Timothy S. Mullen, Ron Murtaugh, Nebraska State Patrol, Lynn Nichols, Tom Nutt, Dennis Ocken, Jeffrey S. Ortgies, James D. Owens, Douglas D. Palik, David J. Partsch, Tom Patterson, Joel W. Phillips, Robert Pickell, Michael E. Pieper, Philip E. Pierce, Lee Polikov, Michael H. Powell, Dale Radcliff, Jayme Reed, Gary Reiber, Julie L. Reiter, Jean Rhodes, Randall Ritnour, Terry Robbins, Richard H.

08/18/2010 09/15/2010
09/15/2010 09/16/2010 10/29/2010 11/16/2010 12/08/2010

Roberts, Richard Roberts, Michael Robinson, William Roe, Daniel Rupp, Paul B. Schaub, Harold Schenck, Tami Schendt, Timothy S. Schmidt, Troy Schmitz, David T. Schroeder, Jon S. Schroeder, Eric Scott, Eric Scott, Tim Sieh, Tim Sierks, Bill Simpson, Daniel A. Smith, Joseph M. Smith, Nels Sorensen, David Spiegel, State of Nebraska, David M. Streich, Kevin Stukenholtz, Timothy Sutherland, James Swanson, John Thomas, Scott J. Tingelhoff, Bryan Tuma, Michael Unger, Paul J. Vaughan, George G. Vinton, Steve Vinton, James L. Wagner, Terry Wagner, Tiffany Wasserburger, Elizabeth F. Waterman, Jerry Watson, Kim W. Watson, David C. Weeks, James P. Wenzl, Daniel L. Werner, Rodney Wetovick, Jason White, Scott K. White, David L. Wilson, Todd D. Wilson, Arlan G. Wine, David G. Wondra, Paul Wood, Joe Yocum, Mark Young, John Zavadil, James L. Zimmerman, Jon Bruning, Martin Gutschenritter, Rebecca Harling, Jerome Kramer, Nebraska State Patrol, Nebraska, State of, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03004−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 08/18/2010)
357 NOTICE of Appearance (Amended) by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma, Jon Bruning, Nebraska State Patrol, Bryan Tuma, Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma, Jon Bruning, Nebraska State Patrol, Nebraska, State of, Bryan Tuma Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03004−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Griess, Kevin) (Entered: 08/18/2010)
358 Joint STIPULATION regarding Order on Motion for Summary Judgment,, Order on Objection,,,,,,,,,,,,,,,,,,,,,,,,, (45 in 4:10−cv−03005−RGK −CRZ, 45 in 4:10−cv−03005−RGK −CRZ, 45 in 4:10−cv−03005−RGK −CRZ, 45 in 4:10−cv−03005−RGK −CRZ, 354 in 8:09−cv−00456−RGK −CRZ, 354 in 8:09−cv−00456−RGK −CRZ, 354 in 8:09−cv−00456−RGK −CRZ, 354 in 8:09−cv−00456−RGK −CRZ, 51 in 4:09−cv−03266−RGK −CRZ, 51 in 4:09−cv−03266−RGK −CRZ, 51 in 4:09−cv−03266−RGK −CRZ, 51 in 4:09−cv−03266−RGK −CRZ) by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Dornan, Stuart) (Entered: 09/15/2010)
359 REPORT of Rule 26(f) Planning Meeting by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Dornan, Stuart) (Entered: 09/15/2010)
360 FINAL PROGRESSION ORDER − Depositions due 1/28/2011. Pretrial Conference set for 5/5/2011 at 11:00 AM in Chambers before Magistrate Judge Cheryl R. Zwart. Jury Trial set for 5/23/2011 at 09:00 AM in Courtroom 1, Federal Building, 100 Centennial Mall North, Lincoln, NE before Judge Richard G. Kopf.Member Cases: 8:09−cv−00456−RGK −CRZ et al.Ordered by Magistrate Judge Cheryl R. Zwart. (DMS) Modified on 9/20/2010 to correct filed date(MKR). (Entered: 09/17/2010)
361 NOTICE of Serving Rule 26 Disclosures by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Dornan, Stuart) (Entered: 10/29/2010)
362 NOTICE of Serving Rule 26 Disclosures by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Griess, Kevin) (Entered: 11/16/2010)
363 Unopposed MOTION to Extend Deadline to File an Expert Report Order Setting Schedule for Progression of a Civil Case, (57 in 4:09−cv−03266−RGK −CRZ, 51 in 4:10−cv−03005−RGK −CRZ, 360 in 8:09−cv−00456−RGK −CRZ) by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through

12/09/2010 12/10/2010 12/17/2010 12/23/2010 01/11/2011 01/13/2011
01/14/2011 01/21/2011 01/21/2011 01/27/2011

K.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Dornan, Stuart) (Entered: 12/08/2010)
364 NOTICE of Serving Discovery Requests by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Dornan, Stuart) (Entered: 12/09/2010)
365 TEXT ORDER granting (363) Motion to Extend in case 8:09−cv−00456−RGK −CRZ; and the related motions in Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03004−RGK −CRZ, 4:10−cv−03005−RGK −CRZ. Plaintiffs' expert report shall be served on or before December 17, 2010. Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ) (Entered: 12/10/2010)
366 NOTICE Plaintiffs' Rule 26(a)(2) Disclosure and Notice of Serving Expert Report by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Dornan, Stuart) (Entered: 12/17/2010)
367 NOTICE Defendants' Rule 26(a)(2) Disclosure by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Griess, Kevin) (Entered: 12/23/2010)
368 Unopposed MOTION to Extend by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Griess, Kevin) (Entered: 01/11/2011)
369 TEXT ORDER granting (368) Motion to Extend in case 8:09−cv−00456−RGK −CRZ;Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03004−RGK −CRZ, 4:10−cv−03005−RGK −CRZ. Defendants' deadline to serve responses to Plaintiffs interrogatories and requests for production of documents is extended to January 21, 2011 and the deadline for Defendants to file any Motion to Compel is extended to January 28, 2011.Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ) (Entered: 01/13/2011)
370 NOTICE of Serving Discovery Requests by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Griess, Kevin) (Entered: 01/14/2011)
371 Unopposed MOTION to Extend by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Griess, Kevin) (Entered: 01/21/2011)
372 Amended MOTION to Extend (Unopposed) Unopposed MOTION to Extend(371 in 8:09−cv−00456−RGK −CRZ) by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Griess, Kevin) (Entered: 01/21/2011)
373 ORDER − The defendants unopposed amended motions to extend the expert witnessdeadline, (8:09−cv−00456, filing no. 372 ; 4:09−cv−03266, filing no. 69; and4:10−cv−03005, filing no. 63) are granted, and a. The defendants expert witness disclosure deadline is extended to January 28, 2011. b. The plaintiffs deadline for filing of any motion to exclude expert testimony on Daubert and related grounds is extended to February 11, 2011. The defendants motions to extend the expert witness deadline, (8:09−cv−00456, filing no. 371 ; 4:09−cv−03266, filing no. 68; and 4:10−cv−03005, filing no. 62) are denied as moot. Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005− RGK −CRZ Ordered by Magistrate Judge Cheryl R. Zwart. (MKR) (Entered: 01/27/2011)

01/28/2011 01/28/2011
01/28/2011 02/14/2011 02/17/2011 02/18/2011 03/01/2011
03/18/2011 04/06/2011 04/06/2011

374 MOTION to Compel Discovery by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Dornan, Stuart) (Entered: 01/28/2011)
375 INDEX in support of MOTION to Compel Discovery(71 in 4:09−cv−03266−RGK −CRZ, 65 in 4:10−cv−03005−RGK −CRZ, 374 in 8:09−cv−00456−RGK −CRZ) by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Dornan, Stuart) (Entered: 01/28/2011)
376 NOTICE of Serving Expert Report by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Griess, Kevin) (Entered: 01/28/2011)
377 BRIEF in opposition to MOTION to Compel Discovery(65 in 4:10−cv−03005−RGK −CRZ) by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Spohn, Katherine) (Entered: 02/14/2011)
378 MOTION for Leave to File Reply Brief by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Dornan, Stuart) (Entered: 02/17/2011)
379 TEXT ORDER granting (378) Motion for Leave in case 8:09−cv−00456−RGK −CRZ; granting (75) Motion for Leave in case 4:09−cv−03266−RGK −CRZ; granting (69) Motion for Leave in case 4:10−cv−03005−RGK −CRZ. The plaintiffs' reply in support of their motion to compel shall be filed on or before March 1,2011. Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ) (Entered: 02/18/2011)
380 REPLY BRIEF in support of MOTION to Compel Discovery(71 in 4:09−cv−03266−RGK −CRZ, 65 in 4:10−cv−03005−RGK −CRZ, 374 in 8:09−cv−00456−RGK −CRZ), Index,, (375 in 8:09−cv−00456−RGK −CRZ, 66 in 4:10−cv−03005−RGK −CRZ, 72 in 4:09−cv−03266−RGK −CRZ), Brief, (74 in 4:09−cv−03266−RGK −CRZ, 68 in 4:10−cv−03005−RGK −CRZ, 377 in 8:09−cv−00456−RGK −CRZ) by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Dornan, Stuart) (Entered: 03/01/2011)
381 NOTICE of Serving Discovery Responses by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Dornan, Stuart) (Entered: 03/18/2011)
382 Unopposed MOTION to Dismiss Party John Doe 20 and John Doe C by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.(Dornan, Stuart) (Entered: 04/06/2011)
383 Unopposed MOTION to Continue by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Spohn, Katherine) (Entered: 04/06/2011)

04/19/2011
04/25/2011 05/03/2011 05/03/2011 05/03/2011 05/03/2011 05/03/2011
05/06/2011 05/09/2011 05/17/2011

384 MEMORANDUM AND ORDER −The Plaintiffs motion to compel, (filing no. 374 ), is granted in part and denied in part as set forth within the order. The defendants unopposed motions to continue, (filing no. 383 ), are granted. The pretrial conference and trial of the above−captioned cases are continued pending further order of the court. The clerk shall file this memorandum and order in the lead case, 8:09−cv−00456−RGK−CRZ, as a spread text order. Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005− RGK −CRZ Ordered by Magistrate Judge Cheryl R. Zwart. (MKR) (Entered: 04/19/2011)
385 ORDER granting Motion to Dismiss Party 382 . IT IS ORDERED that filing 382 , the Unopposed Motion to Dismiss as to John Doe 20 and John Doe C, is granted, and, as to these two plaintiffs only, that their claims are dismissed without prejudice. Ordered by Judge Richard G. Kopf. (TEL) (Entered: 04/25/2011)
386 OBJECTION TO MAGISTRATE JUDGE'S ORDER by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Griess, Kevin) (Entered: 05/03/2011)
387 BRIEF in support of OBJECTION TO MAGISTRATE JUDGE'S ORDER(386 in 8:09−cv−00456−RGK −CRZ) by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Griess, Kevin) (Entered: 05/03/2011)
388 MOTION to Stay of Magistrate Judge's Order by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Griess, Kevin) (Entered: 05/03/2011)
389 BRIEF in support of MOTION to Stay of Magistrate Judge's Order(388 in 8:09−cv−00456−RGK −CRZ) by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Griess, Kevin) (Entered: 05/03/2011)
390 ORDER granting ( 388 ) Motion to Stay in case 8:09−cv−00456−RGK −CRZ; granting (83) Motion to Stay in case 4:09−cv−03266−RGK −CRZ; granting (77) Motion to Stay in case 4:10−cv−03005−RGK −CRZ. Defendants' motion to stay discovery is granted pending the resolution of Defendants' Objection to Magistrate Judge's Order, (filing no. 386 ) with respect to the subset of documents as set out in this order. Defendants' motion to stay is denied to the extent it seeks to stay discovery involving any documents not included in the above−described subset. The clerk shall file this memorandum and order in the lead case,8:09−cv−00456−RGK−CRZ, as a spread text order. Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ. Ordered by Magistrate Judge Cheryl R. Zwart. (GJG) (Entered: 05/04/2011)
391 Joint STIPULATION by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Spohn, Katherine) (Entered: 05/06/2011)
392 ORDER adopting (391) Joint Stipulation for Protective Order in case 8:09−cv−00456−RGK −CRZ; adopting (86) Joint Stipulation for Protective Order in case 4:09−cv−03266−RGK −CRZ; adopting (80) Joint Stipulation for Protective Order in case 4:10−cv−03005−RGK −CRZ. Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB) (Entered: 05/09/2011)
393 BRIEF in opposition to OBJECTION TO MAGISTRATE JUDGE'S ORDER(386 in 8:09−cv−00456−RGK −CRZ, 75 in 4:10−cv−03005−RGK −CRZ, 81 in 4:09−cv−03266−RGK −CRZ) by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Dornan, Stuart) (Entered: 05/17/2011)

05/24/2011 06/15/2011 06/17/2011 06/20/2011
07/08/2011 08/08/2011 08/10/2011 08/19/2011 08/19/2011 08/21/2011 09/13/2011

394 REPLY BRIEF in support of OBJECTION TO MAGISTRATE JUDGE'S ORDER(75 in 4:10−cv−03005−RGK −CRZ) by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Griess, Kevin) (Entered: 05/24/2011)
395 MEMORANDUM AND ORDER− The Magistrate Judges memorandum and order (filing 384 in Case No. 8:09CV456) shall not be disturbed and is hereby sustained; The defendant's objection to and appeal from the Magistrate Judge's memorandum and order 386 in Case No. 8:09cv456) is denied. Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ. Ordered by Judge Richard G. Kopf. (MKR) (Entered: 06/15/2011)
396 Joint STIPULATION by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Spohn, Katherine) (Entered: 06/17/2011)
397 MEMORANDUM AND ORDER granting the parties' supplemental Joint [396) Stipulation in case 8:09−cv−00456−RGK −CRZ; granting 91 Stipulation in case 4:09−cv−03266−RGK −CRZ; granting 85 Stipulation in case 4:10−cv−03005−RGK −CRZ. The parties are hereby ordered to comply with the terms and conditions of their Supplemental Joint Stipulation and Protective Order 91 , 396 and 85 . Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ. The clerk shall file this memorandum and order in the lead case, 8:09−cv−00456−RGK−CRZ, as a spread text order. Ordered by Magistrate Judge Cheryl R. Zwart. (MKR) (Entered: 06/20/2011)
398 NOTICE of Serving Discovery Requests by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Griess, Kevin) (Entered: 07/08/2011)
399 TEXT ORDER SETTING HEARING: Telephone Conference set for 8/10/2011 at 10:00 AM before Magistrate Judge Cheryl R. Zwart. Judge Zwart's chambers will email conferencing instructions to counsel. Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ Ordered by Magistrate Judge Cheryl R. Zwart. (BHC) (Entered: 08/08/2011)
400 ORDER SETTING HEARING: Telephone Conference set for 1/26/2012 at 01:00 PM before Magistrate Judge Cheryl R. Zwart. Judge Zwart's chambers will provide conferencing instructions. Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ Ordered by Magistrate Judge Cheryl R. Zwart. (BHC) (Entered: 08/10/2011)
401 Unopposed MOTION for Protective Order by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Griess, Kevin) (Entered: 08/19/2011)
402 NOTICE of Serving Discovery Requests by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Griess, Kevin) (Entered: 08/19/2011)
403 ORDER granting 401 Motion for Protective Order in Lead Case 8:09−cv−00456−RGK −CRZ and in Member Cases: 4:09−cv−03266−RGK −CRZ, (filing no. 96) and 4:10−cv−03005−RGK −CRZ (filing no. 90).Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ) (Entered: 08/21/2011)
404 MOTION to Compel by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Griess, Kevin) (Entered: 09/13/2011)

09/13/2011
09/13/2011 09/19/2011 09/26/2011 10/27/2011
12/13/2011 12/13/2011 12/13/2011 12/13/2011

405 INDEX in support of MOTION to Compel(404 in 8:09−cv−00456−RGK −CRZ) by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma. (Attachments: # 1 Exhibit Certified Questions Doe 3, # 2 Exhibit Certified Questions Doe 6, # 3 Exhibit Certified Questions Doe 7, # 4 Exhibit Certified Questions Doe 11, # 5 Exhibit Certified Questions Doe 12, # 6 Exhibit Certified Questions Doe 16, # 7 Exhibit Certified Questions Doe 17, # 8 Exhibit Certified Questions Doe 21, # 9 Exhibit Certified Questions Doe 23, # 10 Exhibit Deposition Transcript Doe 3, # 11 Exhibit Deposition Transcript Doe 12)Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Griess, Kevin) (Entered: 09/13/2011)
406 BRIEF in support of MOTION to Compel(404 in 8:09−cv−00456−RGK −CRZ) by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Griess, Kevin) (Entered: 09/13/2011)
407 MEMORANDUM AND ORDER: The plaintiffs responses to the defendants motions to compel shall be filed on or before September 26, 2011. No reply shall be filed absent leave of the court for good cause shown. Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ. Ordered by Magistrate Judge Cheryl R. Zwart. (CRZ) (Entered: 09/19/2011)
408 BRIEF in opposition to MOTION to Compel(93 in 4:10−cv−03005−RGK −CRZ, 404 in 8:09−cv−00456−RGK −CRZ, 99 in 4:09−cv−03266−RGK −CRZ) by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005−RGK −CRZ(Dornan, Stuart) (Entered: 09/26/2011)
409 MEMORANDUM AND ORDER granting (404) Motion to Compel in case 8:09−cv−00456−RGK −CRZ; granting (99) Motion to Compel in case 4:09−cv−03266−RGK −CRZ; granting (93) Motion to Compel in case 4:10−cv−03005−RGK −CRZ. Plaintiffs request for a protective order limiting discovery is granted under the terms set forth in this Memorandum and Order. The clerk shall file this memorandum and order in the lead case, 8:09−cv−00456−RGK−CRZ, as a spread text order. Member Cases: 8:09−cv−00456−RGK −CRZ, 4:09−cv−03266−RGK −CRZ, 4:10−cv−03005− RGK −CRZ Ordered by Magistrate Judge Cheryl R. Zwart. (MKR) (Entered: 10/27/2011)
410 NOTICE to Take Deposition of Doe 15 by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 12/13/2011)
411 NOTICE to Take Deposition of Doe 19 by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 12/13/2011)
412 NOTICE to Take Deposition of Doe 20 by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 12/13/2011)
413 NOTICE to Take Deposition of Doe 24 by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 12/13/2011)

12/13/2011 12/13/2011 12/13/2011 12/13/2011 12/13/2011 12/13/2011 12/13/2011 01/06/2012 01/10/2012 01/11/2012 01/26/2012
01/26/2012

414 NOTICE to Take Deposition of Doe 25 by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 12/13/2011)
415 NOTICE to Take Deposition of Doe 29 by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 12/13/2011)
416 NOTICE to Take Deposition of Doe 30 by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 12/13/2011)
417 NOTICE to Take Deposition of Doe 32 by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 12/13/2011)
418 NOTICE to Take Deposition of Doe 34 by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 12/13/2011)
419 NOTICE to Take Deposition of Doe 36 by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 12/13/2011)
420 NOTICE to Take Deposition of Doe 35 by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 12/13/2011)
421 Unopposed MOTION to Dismiss Party John Does 15, 29, 30, 32 and 34 by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.(Dornan, Stuart) (Entered: 01/06/2012)
422 ORDER granting the Unopposed 421 Motion to Dismiss Party as to John Does 15, 29, 30, 32 and 34. These five plaintiff's claims are dismissed without prejudice. Ordered by Senior Judge Richard G. Kopf. (MKR) (Entered: 01/10/2012)
423 NOTICE to Take Deposition of Doe 35 by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 01/11/2012)
424 MOTION to Restrict pursuant to the E−Government Act by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 01/26/2012)
425 RESTRICTED MOTION regarding MOTION to Restrict pursuant to the E−Government Act (111 in 4:10−cv−03005−RGK−CRZ) ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E−GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). − by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K. (Attachments: # 1 Brief in Support of Motion to Compel, # 2 Index of Exhibits, # 3 Exhibit A−E)Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 01/26/2012)

01/27/2012 01/29/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 01/31/2012 02/02/2012 02/13/2012
02/13/2012

426 TEXT NOTICE OF FILING BRIEF AND INDEX ATTACHED TO MOTION regarding Restricted Motion 425 by Deputy Clerk. Briefs and Indexes shall be electronically filed as a separate document using the brief or index event. The brief and index must identify the document to which it relates. This notice is for your information for future filings.(MKR) (Entered: 01/27/2012)
427 TEXT ORDER granting (424) Motion to Restrict pursuant to the E−Government Act in case 8:09−cv−00456−RGK−CRZ. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZOrdered by Magistrate Judge Cheryl R. Zwart. (CRZ) (Entered: 01/29/2012)
428 NOTICE to Take Deposition of Doe A by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 01/31/2012)
429 NOTICE to Take Deposition of Doe E by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 01/31/2012)
430 NOTICE to Take Deposition of Doe F by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 01/31/2012)
431 NOTICE to Take Deposition of Doe G by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 01/31/2012)
432 NOTICE to Take Deposition of Doe H by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 01/31/2012)
433 NOTICE to Take Deposition of Doe I by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 01/31/2012)
434 NOTICE to Take Deposition of Doe J by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 01/31/2012)
435 NOTICE to Take Deposition of Doe K by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 01/31/2012)
436 TEXT ORDER SETTING HEARING: Telephone Conference set for 2/10/2012 at 10:00 AM before Magistrate Judge Cheryl R. Zwart. The Court will provide call−in telephone conference information to all counsel. Ordered by Magistrate Judge Cheryl R. Zwart. (DMS) (Entered: 02/02/2012)
437 MEMORANDUM AND ORDER − After conferring with the parties, and with their agreement, 4−day Bench Trial continued to 7/16/2012 at 09:00 AM in Courtroom 2, Robert V. Denney Federal Building, 100 Centennial Mall North, Lincoln, NE before Senior Judge Richard G. Kopf. Pretrial Conference continued to 7/3/2012 at 10:00 AM in Chambers before Magistrate Judge Cheryl R. Zwart. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZOrdered by Magistrate Judge Cheryl R. Zwart. (JAB) Modified on 2/14/2012 to reflect trial is to the bench. (JAB) (Entered: 02/13/2012)
438 BRIEF in opposition to RESTRICTED MOTION regarding MOTION to Restrict pursuant to the E−Government Act (111 in 4:10−cv−03005−RGK−CRZ) ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE

02/20/2012
02/24/2012 02/27/2012 02/28/2012
03/09/2012 03/16/2012 05/01/2012 05/14/2012

COURT PURSUANT TO THE E−GOVERNMENT ACT AND FEDER(118 in 4:09−cv−03266−RGK−CRZ, 112 in 4:10−cv−03005−RGK−CRZ, 425 in 8:09−cv−00456−RGK−CRZ) by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 02/13/2012)
439 REPLY BRIEF in support of Brief,, (132 in 4:09−cv−03266−RGK−CRZ, 125 in 4:10−cv−03005−RGK−CRZ, 438 in 8:09−cv−00456−RGK−CRZ), RESTRICTED MOTION regarding MOTION to Restrict pursuant to the E−Government Act (111 in 4:10−cv−03005−RGK−CRZ) ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E−GOVERNMENT ACT AND FEDER(112 in 4:10−cv−03005−RGK−CRZ) by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 02/20/2012)
440 Unopposed MOTION to Dismiss Party Doe A and Doe 8 by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.(Dornan, Stuart) (Entered: 02/24/2012)
441 ORDER granting 440 the Unopposed Motion to Dismiss as to Does 8 and A as to these two plaintiffs only, that their claims are dismissed without prejudice. Ordered by Senior Judge Richard G. Kopf. (MKR) (Entered: 02/27/2012)
442 MEMORANDUM AND ORDER granting in part and denying in part (425) RESTRICTED MOTION in case 8:09−cv−00456−RGK−CRZ; granting in part and denying in part (118) RESTRICTED MOTION in case 4:09−cv−03266−RGK−CRZ and granting in part and denying in part (112) RESTRICTED MOTION in case 4:10−cv−03005−RGK−CRZ. With respect to the documents numbered 22, 23, 24, & 25 on Filing No. 425−3, Ex. B, Plaintiffs' motion to compel (filing no. 425 ) is granted. Defendants shall produce those documents to Plaintiffs by March 9, 2012. Defendants shall file the remaining documents identified in Filing Nos. 425−3, Exs. B and C under seal by March 16, 2012 in order for the undersigned to conduct an in camera review and determine if the claimed privileges apply. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZOrdered by Magistrate Judge Cheryl R. Zwart. (JAB) (Entered: 02/28/2012)
443 NOTICE of Serving Documents by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 03/09/2012)
445 NOTICE of Filing Documents under Seal by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 03/16/2012)
446 NOTICE to Take Deposition of David G. Post by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 05/01/2012)
447 MEMORANDUM AND ORDER regarding Order on Restricted Motion (442 in 8:09−cv−00456−RGK−CRZ). On February 28, 2012 the undersigned ordered Defendants to submit certain documents for an in camera review to determine whether the documents were shielded from discovery by the attorney/client privilege and/or the deliberative process privilege. After review, IT IS ORDERED: 1) Documents Nos. 1a, 1b, 2 & 3 of Exhibit C are protected by the deliberative process privilege and shall not be produced. 2) All of the remaining documents listed on Defendants' privilege log shall beproduced to Plaintiffs on or before May 25, 2012.

05/23/2012 05/23/2012 05/23/2012 05/23/2012 05/25/2012
06/01/2012 06/15/2012 06/21/2012 06/21/2012

Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB) (Entered: 05/14/2012)
448 STATEMENT OF OBJECTIONS TO MAGISTRATE JUDGES ORDER by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Spohn, Katherine) Modified on 5/23/2012 to change event from statement to objection to magistrate judge's order per conversation with Attorney General's office (CCB). (Entered: 05/23/2012)
449 BRIEF in support of Statement, (133 in 4:10−cv−03005−RGK−CRZ) OF OBJECTIONS TO MAGISTRATE JUDGES ORDER by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Spohn, Katherine) (Entered: 05/23/2012)
450 MOTION to Stay OF MAGISTRATE JUDGES ORDER by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 05/23/2012)
451 BRIEF in support of MOTION to Stay OF MAGISTRATE JUDGES ORDER(135 in 4:10−cv−03005−RGK−CRZ) by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 05/23/2012)
452 MEMORANDUM AND ORDER granting (450) Motion to Stay in case 8:09−cv−00456−RGK−CRZ; granting (142) Motion to Stay in case 4:09−cv−03266−RGK−CRZ; granting (135) Motion to Stay in case 4:10−cv−03005−RGK−CRZ. The deadline for disclosing materials in accordance with this courts order dated May 14, 2012 is stayed pending further order of the court. The clerk shall file this memorandum and order in the lead case, 8:09−cv−00456−RGK−CRZ, as a spread text order. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZOrdered by Magistrate Judge Cheryl R. Zwart. (MKR) (Entered: 05/25/2012)
453 MEMORANDUM AND ORDER − the Magistrate Judges Memorandum and Order (filing 447 in Case No. 8:09CV456) shall not be disturbed and is hereby sustained; Defendants statement of objections to the aforesaid memorandum and order (filing in 448 Case No. 8:09CV456) is denied; and the stay of the Magistrate Judges order is lifted and Defendants shall produce all non−privileged documents on or before June 15, 2012. Ordered by Senior Judge Richard G. Kopf. (MKR) (Entered: 06/01/2012)
454 NOTICE of Serving Documents by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 06/15/2012)
455 MOTION to Extend Deposition Deadline by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 06/21/2012)
456 BRIEF in support of MOTION to Extend Deposition Deadline(140 in 4:10−cv−03005−RGK−CRZ, 148 in 4:09−cv−03266−RGK−CRZ, 455 in 8:09−cv−00456−RGK−CRZ) by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 06/21/2012)

06/21/2012
06/21/2012 06/22/2012 06/26/2012 06/26/2012 06/26/2012 06/26/2012 06/27/2012 06/27/2012 06/27/2012 06/27/2012

457 INDEX in support of MOTION to Extend Deposition Deadline(140 in 4:10−cv−03005−RGK−CRZ, 148 in 4:09−cv−03266−RGK−CRZ, 455 in 8:09−cv−00456−RGK−CRZ), Brief, (149 in 4:09−cv−03266−RGK−CRZ, 456 in 8:09−cv−00456−RGK−CRZ, 141 in 4:10−cv−03005−RGK−CRZ) by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K. (Attachments: # 1 Exhibit Affidavit)Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 06/21/2012)
458 TEXT ORDER. This case is scheduled to be tried in less than a month. Accordingly, defendants' response to the plaintiffs' Motion to Extend the Deposition Deadline(455 in 8:09−cv−00456−RGK−CRZ, 148 in 4:09−cv−03266−RGK−CRZ, 140 in 4:10−cv−03005−RGK−CRZ) shall be filed on or before June 26, 2012. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) (Entered: 06/21/2012)
459 Unopposed MOTION to Dismiss Party John Does 1 and 22 by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.(Dornan, Stuart) (Entered: 06/22/2012)
460 BRIEF in opposition to MOTION to Extend Deposition Deadline(140 in 4:10−cv−03005−RGK−CRZ) by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 06/26/2012)
461 MOTION for Sanctions by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 06/26/2012)
462 BRIEF in support of MOTION for Sanctions (145 in 4:10−cv−03005−RGK−CRZ) by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 06/26/2012)
463 INDEX in support of MOTION for Sanctions (145 in 4:10−cv−03005−RGK−CRZ) by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma. (Attachments: # 1 Affidavit)Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 06/26/2012)
464 MOTION to Quash Subpoena by Attorney Kevin L. Griess on behalf of Interested Party Pete Pirsch.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 06/27/2012)
465 BRIEF in support of MOTION to Quash Subpoena(156 in 4:09−cv−03266−RGK−CRZ, 148 in 4:10−cv−03005−RGK−CRZ, 464 in 8:09−cv−00456−RGK−CRZ) by Attorney Kevin L. Griess on behalf of Interested Party Pete Pirsch.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 06/27/2012)
466 MOTION to Quash Subpoena by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 06/27/2012)
467 BRIEF in support of MOTION to Quash Subpoena(158 in 4:09−cv−03266−RGK−CRZ, 150 in 4:10−cv−03005−RGK−CRZ, 466 in 8:09−cv−00456−RGK−CRZ) by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ,

06/27/2012 06/27/2012 06/27/2012 06/27/2012 06/27/2012
06/28/2012
06/28/2012

4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 06/27/2012)
468 MOTION to Quash Subpoena by Attorney Kevin L. Griess on behalf of Interested Party Dave Cookson.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 06/27/2012)
469 MOTION to Quash Subpoena by Attorney Kevin L. Griess on behalf of Interested Party John Freudenberg.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 06/27/2012)
470 MOTION to Quash Subpoena by Attorney Kevin L. Griess on behalf of Interested Party Corey O'Brien.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 06/27/2012)
471 BRIEF in support of MOTION to Quash Subpoena(153 in 4:10−cv−03005−RGK−CRZ, 469 in 8:09−cv−00456−RGK−CRZ, 161 in 4:09−cv−03266−RGK−CRZ), MOTION to Quash Subpoena(152 in 4:10−cv−03005−RGK−CRZ, 160 in 4:09−cv−03266−RGK−CRZ, 468 in 8:09−cv−00456−RGK−CRZ), MOTION to Quash Subpoena(470 in 8:09−cv−00456−RGK−CRZ, 154 in 4:10−cv−03005−RGK−CRZ, 162 in 4:09−cv−03266−RGK−CRZ) by Attorney Kevin L. Griess on behalf of Interested Parties Dave Cookson, John Freudenberg, Corey O'Brien.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 06/27/2012)
472 ORDER SETTING HEARING: 1) On or before 12:00 p.m. (noon) on June 28, 2012, the defendant shall file an index of evidence with copies of the subpoenas underlying their motions to quash; 2) On or before 12:00 p.m. (noon) on June 29, 2012, the plaintiffs shall file any written response to the defendants" motions to quash; 3) An oral argument on all pending motions in this case (Plaintiffs' motion to extend the deposition deadline; Defendants' motion for sanctions; Defendants' motions to quash) will be held on June 29, 2012 at 2:00 PM in Courtroom 2, Robert V. Denney Federal Building, 100 Centennial Mall North, Lincoln, NE before Magistrate Judge Cheryl R. Zwart. In Court Hearing set for Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ. Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) (Entered: 06/27/2012)
473 INDEX in support of MOTION to Quash Subpoena(158 in 4:09−cv−03266−RGK−CRZ, 150 in 4:10−cv−03005−RGK−CRZ, 466 in 8:09−cv−00456−RGK−CRZ), MOTION to Quash Subpoena(153 in 4:10−cv−03005−RGK−CRZ, 161 in 4:09−cv−03266−RGK−CRZ, 469 in 8:09−cv−00456−RGK−CRZ), MOTION to Quash Subpoena(152 in 4:10−cv−03005−RGK−CRZ, 160 in 4:09−cv−03266−RGK−CRZ, 468 in 8:09−cv−00456−RGK−CRZ), MOTION to Quash Subpoena(470 in 8:09−cv−00456−RGK−CRZ, 154 in 4:10−cv−03005−RGK−CRZ, 162 in 4:09−cv−03266−RGK−CRZ), MOTION to Quash Subpoena(464 in 8:09−cv−00456−RGK−CRZ, 156 in 4:09−cv−03266−RGK−CRZ, 148 in 4:10−cv−03005−RGK−CRZ) by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma. (Attachments: # 1 Affidavit of Katherine J. Spohn, # 2 Exhibit Subpoena of Peter Pirsch, # 3 Exhibit Subpoena of Jon Bruning, # 4 Exhibit Subpoena of David Cookson, # 5 Exhibit Subpoena of John Freudenberg, # 6 Exhibit Subpoena of Corey O'Brien)Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 06/28/2012)
474 MOTION to Quash Subpoena by Attorney Kevin L. Griess on behalf of Interested Party Scott Lautenbaugh.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered:

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06/28/2012)
475 BRIEF in support of MOTION to Quash Subpoena(474 in 8:09−cv−00456−RGK−CRZ, 166 in 4:09−cv−03266−RGK−CRZ, 158 in 4:10−cv−03005−RGK−CRZ) by Attorney Kevin L. Griess on behalf of Interested Party Scott Lautenbaugh.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 06/28/2012)
476 INDEX in support of MOTION to Quash Subpoena(474 in 8:09−cv−00456−RGK−CRZ, 166 in 4:09−cv−03266−RGK−CRZ, 158 in 4:10−cv−03005−RGK−CRZ) by Attorney Kevin L. Griess on behalf of Interested Party Scott Lautenbaugh. (Attachments: # 1 Affidavit, # 2 Exhibit)Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 06/28/2012)
477 TEXT NOTICE REGARDING ELECTRONIC SIGNATURE re Index,,,, (473 in 8:09−cv−00456−RGK−CRZ) by Deputy Clerk. The attorney login does not match the s/signature on this document. This notice is for your information for future filings. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(MKR) (Entered: 06/29/2012)
478 MOTION to Restrict pursuant to the E−Government Act Brief and Index of Exhibits by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 06/29/2012)
479 RESTRICTED DOCUMENT Brief regarding MOTION to Restrict pursuant to the E−Government Act Brief and Index of Exhibits(170 in 4:09−cv−03266−RGK−CRZ, 162 in 4:10−cv−03005−RGK−CRZ, 478 in 8:09−cv−00456−RGK−CRZ) ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E−GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). − by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 06/29/2012)
480 RESTRICTED DOCUMENT Index of Exhibits and Exhibits regarding MOTION to Restrict pursuant to the E−Government Act Brief and Index of Exhibits(170 in 4:09−cv−03266−RGK−CRZ, 162 in 4:10−cv−03005−RGK−CRZ, 478 in 8:09−cv−00456−RGK−CRZ) ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E−GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). − by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K. (Attachments: # 1 Exhibit #1−3)Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 06/29/2012)
481 MOTION to Quash Subpoena of John Harms by Attorney Kevin L. Griess on behalf of Interested Party John Harms.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 06/29/2012)
482 BRIEF in support of MOTION to Quash Subpoena of John Harms(481 in 8:09−cv−00456−RGK−CRZ, 165 in 4:10−cv−03005−RGK−CRZ, 173 in 4:09−cv−03266−RGK−CRZ) by Attorney Kevin L. Griess on behalf of Interested Party John Harms.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 06/29/2012)

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483 INDEX in support of MOTION to Quash Subpoena of John Harms(481 in 8:09−cv−00456−RGK−CRZ, 165 in 4:10−cv−03005−RGK−CRZ, 173 in 4:09−cv−03266−RGK−CRZ) by Attorney Kevin L. Griess on behalf of Interested Party John Harms. (Attachments: # 1 Affidavit of Kevin Griess, # 2 Exhibit Subpoena of John of Harms)Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 06/29/2012)
484 TEXT MINUTE ENTRY for proceedings held before Magistrate Judge Cheryl R. Zwart in Lincoln on 6/29/2012. Motion Hearing held on Plaintiff's Motion to Extend the Deposition Deadline 455 ; Plaintiff's Motion to Dismiss Parties 459 ; Defendant's Motion for Sanctions 461 ; and Defendant's Motions to Quash 464 466 468 469 470 474 481 . Magistrate Judge Zwart will recommend to District Judge Richard G. Kopf that the unopposed Motion to Dismiss Parties Does 1 and 22 459 be granted. Written Findings and Recommendation to issue. Argument on Defendant's Motion for Sanctions 461 . Response by Plaintiff. Matter submitted. Defendant's Motion for Sanctions 461 is denied. The duplicate filings of Defendant's Motion for Sanctions (filings 153 in 4:09cv3266 and 145 in 4:10cv3005) are hereby withdrawn. Argument on Plaintiff's Motion to Extend the Deposition Deadline 455 . Response by Defendant. Matter submitted. Plaintiff's Motion to Extend the Deposition Deadline 455 is denied. Argument on Defendant's Motions to Quash 464 474 481 . Response by Plaintiff. Matter submitted. Defendant's Motions to Quash 464 474 481 are sustained. Argument on Defendant's Motions to Quash 466 468 469 470 . Response by Plaintiff. Matter submitted. Defendant's Motions to Quash 466 468 469 470 are sustained. Magistrate rulings subject to appeal. Expedited Objection deadline. Clerk to transcribe hearing in an expedited matter at parties' request. Appearance for Plaintiff: Rodney C. Dahlquist and Thomas J. Monaghan. Appearance for Defendants: Katherine J. Spohn and James D. Smith. Courtroom Deputy: Troy E. Lieberth; Court Reporter: Digital. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ Time Start: 1:58 PM; Time Stop: 3:25 PM; Time in Court: 1 Hour 27 Minutes. (TEL) (Entered: 06/29/2012)
485 FINDINGS AND RECOMMENDATION that the plaintiffs unopposed motion to dismiss, 459 , be granted, and that Does 1 and 22 be dismissed without prejudice.Ordered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) (Entered: 06/29/2012)
486 AUDIO FILE. Court Date & Time [ 06/29/2012 1:58:06 PM ]. File Size [ 20767 KB ]. Run Time [ 01:26:32 ]. (Motion Hearing). (auto−docket). (Entered: 06/29/2012)
487 EXHIBIT LIST from hearing held on 6/29/2012. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ (TEL) (Entered: 06/29/2012)
488 TEXT ORDER granting (478) Motion to Restrict pursuant to the E−Government Act in case 8:09−cv−00456−RGK−CRZ Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZOrdered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) (Entered: 06/29/2012)
489 MEMORANDUM AND ORDER as to Plaintiffs Motion to Extend the Deposition Deadline, 455 , Defendants Motion for Sanctions, 461 , and Defendants Motions to Quash, [464, 466, 468, 469, 470, 474 and 481]. The deadline for filing any objections to the orders entered herein is expedited, and any objections shall be filed on or before July 5, 2012.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZOrdered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) (Entered: 06/29/2012)
490 EXHIBIT RECEIPT by Defendant's counsel from hearing held on 6/29/12. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(MKR) (Entered: 07/02/2012)
491 TEXT NOTICE REGARDING ELECTRONIC SIGNATURE re Restricted Document,, (479 in 8:09−cv−00456−RGK−CRZ, 171 in 4:09−cv−03266−RGK−CRZ, 163 in 4:10−cv−03005−RGK−CRZ), Restricted Document,, (172 in 4:09−cv−03266−RGK−CRZ, 164 in 4:10−cv−03005−RGK−CRZ, 480 in 8:09−cv−00456−RGK−CRZ) by Deputy Clerk. The attorney login does not match the

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s/signature on this document. This notice is for your information for future filings.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(MKR) (Entered: 07/02/2012)
492 PRETRIAL ORDER − estimated length of trial is 4 days; Non−Jury Trial set for 7/16/2012 at 09:00 AM in Courtroom 1, Robert V. Denney Federal Building, 100 Centennial Mall North, Lincoln, NE before Senior Judge Richard G. Kopf. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZOrdered by Magistrate Judge Cheryl R. Zwart. (Zwart, Cheryl) (Entered: 07/07/2012)
493 EXHIBIT LIST by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 07/09/2012)
494 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 07/09/2012)
495 BRIEF Pretrial by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 07/09/2012)
496 BRIEF (Trial Brief) and Proposed Findings of Fact by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 07/09/2012)
497 ORDER − Filing 485 , the Magistrate Judges recommendation, is adopted. Filing 459 , the Unopposed Motion to Dismiss as to Does 1 and 22, is granted, and, as to these two plaintiffs only, that their claims are dismissed without prejudice. Ordered by Senior Judge Richard G. Kopf. (MKR) (Entered: 07/13/2012)
498 TEXT MINUTE ENTRY for non− jury trial proceedings held before Senior Judge Richard G. Kopf on 7/16/2012 in Lincoln. Opening Statements. Evidence by Plaintiff and Defendant. Non−Jury Trial not concluded, continued to 8:00 a.m. on July 17, 2012 in Courtroom 2 Federal Building, 100 Centennial Mall North, Lincoln, NE before Senior Judge Richard G. Kopf. Appearance for Plaintiff: Rodney C. Dahlquist, Stu Dornan, Thomas Monaghan; for Defendant: Katie Spohn, Kevin Griess and Ryan Post; Courtroom Deputies: Abby Ayodele; Court Reporter: Digital. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ Time Start: 10:46 AM; Time Stop: 5:02 PM; Time in Court: 5 Hours 7 Minutes. (AOA) Modified on 7/17/2012 to change date (AOA). (Entered: 07/16/2012)
499 AUDIO FILE. Court Date & Time [ 07/16/2012 10:25:06 AM ]. File Size [ 20473 KB ]. Run Time [ 01:25:18 ]. (Non−jury Trial (Morning Session)). (auto−docket). (Entered: 07/16/2012)
500 AUDIO FILE. Court Date & Time [ 07/16/2012 12:58:49 PM ]. File Size [ 53532 KB ]. Run Time [ 03:43:03 ]. (Non−jury Trial (Afternoon Session)). (auto−docket). (Entered: 07/16/2012)
501 RESTRICTED DOCUMENT (STIPULATION) by Attorney Katherine J. Spohn, Stuart J. Dornan. ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E−GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(AOA) (Entered: 07/17/2012)

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502 TEXT MINUTE ENTRY for non− jury trial proceedings held before Senior Judge Richard G. Kopf on 7/17/2012 in Lincoln. Evidence by Plaintiff and Defendant. Non−Jury Trial not concluded, continued to 9:00 a.m. on July 18, 2012 in Courtroom 2 Federal Building, 100 Centennial Mall North, Lincoln, NE before Senior Judge Richard G. Kopf. Appearance for Plaintiff: Rodney C. Dahlquist, Stu Dornan, Thomas Monaghan; for Defendant: Katie Spohn, Kevin Griess and Ryan Post; Courtroom Deputy: Abby Ayodele; Court Reporter: Digital. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ Time Start: 8:06 AM; Time Stop: 4:56 PM; Time in Court: 5 Hours 52 Minutes. (AOA) (Entered: 07/17/2012)
503 AUDIO FILE. Court Date & Time [ 07/17/2012 6:58:19 AM ]. File Size [ 44743 KB ]. Run Time [ 03:06:26 ]. (Non−Jury Trial (Morning Session)). (auto−docket). (Entered: 07/17/2012)
504 AUDIO FILE. Court Date & Time [ 07/17/2012 1:40:50 PM ]. File Size [ 39423 KB ]. Run Time [ 02:44:16 ]. (Non Jury Trial (Afternoon Session)). (auto−docket). (Entered: 07/17/2012)
505 MOTION to Dismiss Parties filed by Attorneys Kevin L. Griess and Katherine J. Spohn on behalf of Defendants State of Nebraska, et al. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ (TEL) (Entered: 07/18/2012)
506 TEXT MINUTE ENTRY for non− jury trial proceedings held before Senior Judge Richard G. Kopf on 7/18/2012 in Lincoln. Evidence by Plaintiff. Defendant's motion for dismissal pursuant to Rule 50 is denied. Evidence by Defendant. Non−Jury Trial concluded. Matter submitted. Written Order forthcoming. Appearance for Plaintiff: Rodney C. Dahlquist, Stu Dornan, Thomas Monaghan; for Defendant: Katie Spohn, Kevin Griess and Ryan Post; Courtroom Deputy: Abby Ayodele; Court Reporter: Digital Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ Time Start: 9:07 AM; Time Stop: 3:07 PM; Time in Court: 3 Hours 44 Minutes. (AOA) (Entered: 07/18/2012)
507 RESTRICTED AUDIO FILE. Court Date & Time [ 07/18/2012 8:28:20 AM ]. File Size [ 35871 KB ]. Run Time [ 02:29:28 ]. (Non−Jury Trial hearing (Morning Session)). (auto−docket). Modified on 7/23/2012 to restrict per RGK chambers (AOA). (Entered: 07/18/2012)
508 AUDIO FILE. Court Date & Time [ 07/18/2012 1:29:56 PM ]. File Size [ 22492 KB ]. Run Time [ 01:33:43 ]. (Non−Jury Trial hearing (Afternoon Session)). (auto−docket). (Entered: 07/18/2012)
509 WITNESS LIST from non−jury trial held On July 16, 2012 − July 18, 2012. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(AOA) (Entered: 07/18/2012)
510 EXHIBIT LIST from Non−Jury Trial held held on July 16, 2012 − July 18, 2012. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(AOA) (Modified on 1/7/2014 to attach # 1 Court Exhibit 1 per CCB) (JAB) (Entered: 07/19/2012)
511 NOTICE of Appearance by Attorney Ryan S. Post on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Post, Ryan) (Entered: 07/19/2012)
512 LETTER BY CLERK that a CD was sent to Rogene Schroder for transcription regarding Order on Motion to Dismiss Party, Non−Jury Trial − Ended,,,, (506 in 8:09−cv−00456−RGK−CRZ, 506 in 8:09−cv−00456−RGK−CRZ), Non−Jury Trial − Began,,, (498 in 8:09−cv−00456−RGK−CRZ), Non−Jury Trial Held,, (502 in 8:09−cv−00456−RGK−CRZ). Transcript ordered by Senior Judge Richard G. Kopf. ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E−GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(SCR, ) (Entered: 07/19/2012)

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513 Unopposed MOTION to Restrict pursuant to the E−Government Act by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K, Intervenor Parties John Doe 21−23, John Doe 21−23.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 07/20/2012)
514 Unopposed RESTRICTED MOTION regarding Unopposed MOTION to Restrict pursuant to the E−Government Act (205 in 4:09−cv−03266−RGK−CRZ, 198 in 4:10−cv−03005−RGK−CRZ, 513 in 8:09−cv−00456−RGK−CRZ) ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E−GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). − by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K, Intervenor Parties John Doe 21−23, John Doe 21−23.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 07/20/2012)
515 ORDER − The Unopposed Motion for Permission to Restrict (filing no. 513) is granted. As provided below, the Unopposed Motion to Redact (filing no. 514) is granted in part and otherwise, to wit: As of approximately 2:21 P.M. on July 23, 2012, the digital audio recording for the morning session of July 18, 2012 of the non jury trial has been restricted so that it may only be accessed by counsel of record and case participants. The transcriber has been notified when preparing the transcript to file the bench conference separately as a restricted document. The motion is otherwise denied. This order pertains to Case Nos. 4:10CV3005 and 4:09CV3266. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ Ordered by Senior Judge Richard G. Kopf. (AOA) (Entered: 07/23/2012)
516 TRANSCRIPT (UNREDACTED) of Volume I of Trial Proceedings before Senior Judge Richard G. Kopf held on July 16, 2012. Total Number of Billable Pages: 211. Total Number of Pages: 211. The transcript can only be viewed at the courts public terminal or purchased through Transcriber Rogene S. Schroder at (402) 661−7383 before the expiration of the Release of Transcript Restriction deadline. The parties have 5 business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Click here to view the Transcript Redaction Procedure. Redaction Request due 9/10/2012. Redacted Transcript Deadline set for 9/20/2012. Release of Transcript Restriction set for 11/19/2012. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(RSS) (Entered: 08/20/2012)
517 TRANSCRIPT (UNREDACTED) of Volume II of Trial Proceedings before Senior Judge Richard G. Kopf held on July 17, 2012. Total Number of Billable Pages: 235. Total Number of Pages: 235. The transcript can only be viewed at the courts public terminal or purchased through Transcriber Rogene S. Schroder at (402) 661−7383 before the expiration of the Release of Transcript Restriction deadline. The parties have 5 business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Click here to view the Transcript Redaction Procedure. Redaction Request due 9/10/2012. Redacted Transcript Deadline set for 9/20/2012. Release of Transcript Restriction set for 11/19/2012. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(RSS) (Entered: 08/20/2012)
518 TRANSCRIPT (UNREDACTED) of Volume III of Trial Proceedings before Senior Judge Richard G. Kopf held on July 18, 2012. Total Number of Billable Pages: Pages 447−508. Total Number of Pages: 62. The transcript can only be viewed at the courts public terminal or purchased through Transcriber Rogene S. Schroder at (402) 661−7383 before the expiration of the Release of Transcript Restriction deadline. The parties have 5 business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made

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remotely electronically available to the public without redaction after 90 calendar days. Click here to view the Transcript Redaction Procedure. Redaction Request due 9/10/2012. Redacted Transcript Deadline set for 9/20/2012. Release of Transcript Restriction set for 11/19/2012. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(RSS) (Entered: 08/20/2012)
519 RESTRICTED TRANSCRIPT regarding Volume III of Trial Proceedings before Senior Judge Richard G. Kopf held on July 18, 2012. Transcriber Rogene S. Schroder. Total Number of Billable Pages: Pages 509−514. Total Number of Pages: 6. THIS DOCKET ENTRY AND PDF DOCUMENT ARE SEALED PURSUANT TO AN ORDER OF THE COURT AND/OR LEGAL AUTHORITY GOVERNING SEALED FILINGS. ACCESS IS LIMITED ONLY TO THE COURT. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(RSS) Modified on 9/19/2012 to restrict pursuant to Order 515 in case 8:09cv456 (AOA). (Entered: 08/20/2012)
520 TRANSCRIPT (UNREDACTED) of Volume III of Trial Proceedings before Senior Judge Richard G. Kopf held on July 18, 2012. Total Number of Billable Pages: 515−598. Total Number of Pages: 84. The transcript can only be viewed at the courts public terminal or purchased through Transcriber Rogene S. Schroder at (402) 661−7383 before the expiration of the Release of Transcript Restriction deadline. The parties have 5 business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Click here to view the Transcript Redaction Procedure. Redaction Request due 9/10/2012. Redacted Transcript Deadline set for 9/20/2012. Release of Transcript Restriction set for 11/19/2012. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(RSS) (Entered: 08/20/2012)
521 BRIEF (Closing Argument) by Attorney Rodney C. Dahlquist, Jr on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dahlquist, Rodney) (Entered: 09/10/2012)
522 BRIEF (Post−Trial Brief) by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 09/10/2012)
523 REPLY BRIEF Brief(207 in 4:10−cv−03005−RGK−CRZ, 522 in 8:09−cv−00456−RGK−CRZ, 214 in 4:09−cv−03266−RGK−CRZ) by Attorney Rodney C. Dahlquist, Jr on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dahlquist, Rodney) (Entered: 09/11/2012)
524 REPLY BRIEF by Attorney Kevin L. Griess on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Griess, Kevin) (Entered: 09/19/2012)
525 FINDINGS OF FACT AND CONCLUSIONS OF LAW, MEMORANDUM AND ORDER− IT IS ORDERED that: The Clerk of Court shall upload Courts Exhibit 1 to CM/ECF as a restricted document. Except as noted within this order, the Nebraska laws that were enacted by L97 (2009) and LB 285 (2009) are constitutional. The claims of the plaintiffs who are not required to register as sex offenders are dismissed without prejudice as moot. The claims of the plaintiffs who are shown on Courts Exhibit 1 to have withdrawn from participation in this lawsuit are dismissed without prejudice. Final judgment will be withheld pending resolution of the attorney fee issue. Counsel for the plaintiffs shall have until November 1, 2012, to submit anapplication, evidence, evidence index, and brief regarding attorney fees. Counsel for the defendants shall have until November 16, 2012, to respond with evidence, evidence index, and

10/17/2012 11/01/2012 11/01/2012 11/01/2012
11/16/2012 11/16/2012
11/20/2012

brief. Both sides shall give due attention to the local rules of practice regarding attorney fee applications. Counsel are also encouraged to settle the attorney fee issue, if they can, recognizing that the plaintiffs have been partially, but not wholly, successful.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZOrdered by Senior Judge Richard G. Kopf. (MKR) (Entered: 10/17/2012)
526 RESTRICTED STIPULATION (Exhibit 1) ACCESS TO THE PDF DOCUMENT IS RESTRICTED TO CASE PARTICIPANTS AND THE COURT PURSUANT TO THE E−GOVERNMENT ACT AND FEDERAL RULE OF CIVIL PROCEDURE 5.2(a). − by Attorney Katherine J. Spohn on behalf of State of Nebraska, et al, Defendants and Stuart J. Dornan on behalf of John Doe and Jane Doe et al, Plaintiffs. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(MKR) (Entered: 10/17/2012)
527 MOTION for Attorney Fees by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 11/01/2012)
528 BRIEF in support of MOTION for Attorney Fees (219 in 4:09−cv−03266−RGK−CRZ, 212 in 4:10−cv−03005−RGK−CRZ, 527 in 8:09−cv−00456−RGK−CRZ) by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 11/01/2012)
529 INDEX in support of Brief, (528 in 8:09−cv−00456−RGK−CRZ, 220 in 4:09−cv−03266−RGK−CRZ, 213 in 4:10−cv−03005−RGK−CRZ) by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K. (Attachments: # 1 Exhibit #1, # 2 Exhibit #2, # 3 Exhibit #3−9, # 4 Exhibit #10, # 5 Exhibit #11−17)Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 11/01/2012)
530 BRIEF in opposition to MOTION for Attorney Fees (212 in 4:10−cv−03005−RGK−CRZ) by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Spohn, Katherine) (Entered: 11/16/2012)
531 INDEX in opposition to MOTION for Attorney Fees (212 in 4:10−cv−03005−RGK−CRZ) by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Spohn, Katherine) (Entered: 11/16/2012)
532 REPLY BRIEF in support of MOTION for Attorney Fees (219 in 4:09−cv−03266−RGK−CRZ, 212 in 4:10−cv−03005−RGK−CRZ, 527 in 8:09−cv−00456−RGK−CRZ) by Attorney Stuart J. Dornan on behalf of Plaintiffs John

11/20/2012 11/21/2012 12/21/2012
12/21/2012
01/04/2013 01/08/2013 01/06/2014

Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 11/20/2012)
533 MOTION for Hearing Regarding Attorney Fees and Expenses by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 11/20/2012)
534 BRIEF in opposition to MOTION for Hearing Regarding Attorney Fees and Expenses(225 in 4:09−cv−03266−RGK−CRZ, 533 in 8:09−cv−00456−RGK−CRZ, 218 in 4:10−cv−03005−RGK−CRZ) by Attorney Katherine J. Spohn on behalf of Defendants Jon Bruning, Nebraska State Patrol, State of Nebraska, Bryan Tuma.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Spohn, Katherine) (Entered: 11/21/2012)
535 MEMORANDUM AND ORDER − IT IS ORDERED: Plaintiffs' motion for attorneys' fees and expenses (filing 527 ) is granted in part and denied in part, as follows: Pursuant to 42 U.S.C. § 1988, the plaintiffs are hereby awarded total attorneys' fees against the defendants in the amount of $292,564.88. In all other respects, the plaintiffs' application is denied without prejudice to the plaintiffs' ability to seek taxation of costs pursuant to Fed. R. Civ. P. 54(d)(1) and 28 U.S.C. § 1920. Plaintiffs' motion for hearing regarding attorneys' fees and expenses (filing 533 ) is denied. Judgment shall be entered by separate document. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZOrdered by Senior Judge Richard G. Kopf. (TCL ) (Entered: 12/21/2012)
536 JUDGMENT − IT IS ORDERED that: Except as provided in the following paragraphs, judgment is entered for the defendants and against the plaintiffs providing that plaintiffs shall take nothing and these matters are dismissed with prejudice. Doe 24s "as−applied" challenge to Neb. Rev. Stat. § 29−4006(2) under the Fourth Amendment and the equivalent Nebraska constitutional provision is not ripe and is therefore dismissed for lack of Article III jurisdiction. The claims of the plaintiffs who are not required to register as sex offenders as those claims pertain to Neb. Rev. Stat. §§ 29−4006(1)(k) and (s), 29−4006(2), and 28−322.05 (West, Operative Jan. 1, 2010) are dismissed without prejudice because they are moot. The defendants and their agents, servants, employees, attorneys and any other persons acting in concert with them are permanently enjoined from enforcing the foregoing statutes. The plaintiffs are hereby awarded attorneys' fees against the defendants in the amount of $292,564.88. Pursuant to Federal Rule of Civil Procedure 54(d)(1), the plaintiffs are prevailing parties for purposes of taxation of costs. If the plaintiffs desire to recover costs, they must file the required documents with the Clerk within 14 days. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZOrdered by Senior Judge Richard G. Kopf. (TCL ) (Entered: 12/21/2012)
537 BILL OF COSTS Stipulated by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe, John Doe, John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(Dornan, Stuart) (Entered: 01/04/2013)
538 Costs Taxed regarding Bill of Costs (222 in 4:10−cv−03005−RGK−CRZ, 229 in 4:09−cv−03266−RGK−CRZ, 537 in 8:09−cv−00456−RGK−CRZ) in amount of $9,896.56 against the defendants. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ. (MTB) (Entered: 01/08/2013)
539 ORDER−Pursuant to NECivR 79.1(f) or NECrimR 55.1(g), counsel, shall either 1) withdraw the following exhibits previously submitted in this matter within 14 calendar days of the date of this order, or 2) show cause why the exhibits should not be destroyed: Exhibit numbers: All sealed and unsealed exhibits offered in these cases, Hearing type: All hearings held in these cases, If counsel fails to withdraw these

01/06/2014
01/07/2014 01/13/2014 02/07/2014
02/24/2014 02/26/2014

exhibits as directed or to show cause why the exhibits should not be destroyed, the clerks office is directed to destroy the listed exhibits without further notice to the parties or order from the court. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ. Ordered by Senior Judge Richard G. Kopf. (MKR) (Entered: 01/06/2014)
540 Mail Returned as Undeliverable addressed to Kevin L. Griess regarding Order, (224 in 4:10−cv−03005−RGK−CRZ, 224 in 4:10−cv−03005−RGK−CRZ, 539 in 8:09−cv−00456−RGK−CRZ, 539 in 8:09−cv−00456−RGK−CRZ, 231 in 4:09−cv−03266−RGK−CRZ, 231 in 4:09−cv−03266−RGK−CRZ). NO LONGER WITH THE FIRM, NO FORWARDING INFORMATION. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(MKR) (Entered: 01/06/2014)
541 EXHIBIT RECEIPT by Defendant's counsel (MKR) (Entered: 01/07/2014)
542 Mail Returned as Undeliverable addressed to Blake Richards regarding Order 539 . NOT REMAILED, NO LONGER WITH FIRM. (MKR) (Entered: 01/13/2014)
TEXT ENTRY THAT Plaintiff's Exhibits 1−42 from Preliminary Injunction hearing held 12/23/2009 and Plaintiff's Exhibits 101−146, 154−156, 159, 162, 169−178, 180, 182, 190−193, 197−199, 209−211, 304 and 323 from Non−Jury Trial held 7/16 − 7/18/2012 destroyed on 2/7/2014 by Clerk of Court. Member Cases: 8:09−cv−00456−RGK−CRZ, 4:09−cv−03266−RGK−CRZ, 4:10−cv−03005−RGK−CRZ(JAB) (Entered: 02/07/2014)
543 MOTION for Release of Funds (Bond) by Attorney Stuart J. Dornan on behalf of Plaintiffs John Doe and Jane Doe 1 through 20, John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K.(Dornan, Stuart) (Entered: 02/24/2014)
544 ORDER granting the Plaintiff's 543 Motion for Release of Funds and the Clerk is directed to refund the $500.00 cash bond that was deposited on January 6, 2009 101 , to the law firm of Dornan, Lustgarten & Troia, PC LLO, 1403 Farnam Street, Suite 232, Omaha, Nebraska 68102. Ordered by Senior Judge Richard G. Kopf. (Copy provided to Financial) (MKR) (Entered: 02/26/2014)

 
 8:09-cv-00456-RGK-CRZ Doc # 1 Filed: 12/16/09 Page 1 of 46 - Page ID # 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

John Doe and Jane Doe 1 through 20, John Doe and Jane Doe A through K, Doe 12 on behalf of Does H and K, minors, and Doe G on behalf of Doe I, minor,

Plaintiffs, vs.

42 U.S.C. § 1983 COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF

State of Nebraska; Nebraska State Patrol;

CLAIM OF UNCONSTITUTIONALITY

Jon Bruning, Attorney General of Nebraska;

JURY TRIAL DEMANDED

Col. Bryan Tuma, Superintendant of Law Enforcement and Public Safety for the Nebraska State Patrol;

County Attorneys Donna Fegler Daiss (Adams), Michael Long (Antelope), Richard Roberts (Arthur), James L. Zimmerman (Banner), Glenn Clark (Blaine), John Morgan (Boone), Kathleen J. Hutchinson (Box Butte) Ashley Boettcher (Boyd), David M. Streich (Brown), Shawn R. Eatherton (Buffalo), Daniel A. Smith (Burt), Julie L. Reiter (Butler), Nathan Cox (Cass), George L. Hirschbach (Cedar), Arlan G. Wine (Chase), Eric Scott (Cherry), Paul B. Schaub (Cheyenne), Ted S. Griess (Clay), Francis D. Botelho (Colfax), Thomas B. Donner (Cuming), Tami Schendt (Custer), Kim W. Watson (Dakota), Vance Haug (Dawes), Elizabeth F. Waterman (Dawson), Douglas D. Palik (Deuel), Leland K. Miner (Dixon), Paul J. Vaughan (Dodge), Donald W. Kleine (Douglas), James D. Owens (Dundy), Jill R. Cunningham (Fillmore), Patrick A. Duncan (Franklin), Jon S. Schroeder (Frontier), Tom Patterson (Furnas), Randall Ritnour (Gage), Philip E. Pierce (Garden), Dale Crandall (Garfield), Todd D. Wilson (Gosper), A. James Moravek (Grant), James Swanson (Greeley), Mark Young (Hall), Michael H. Powell (Hamilton), Bryan S. McQuay (Harlan), Joel W. Phillips (Hayes), D. Eugene Garner (Hitchcock), Thomas P. Herzog (Holt), George G. Vinton (Hooker), David T. Schroeder (Howard), Linda A.

1

8:09-cv-00456-RGK-CRZ Doc # 1 Filed: 12/16/09 Page 2 of 46 - Page ID # 2
Bauer (Jefferson), Julie Smith Hogancamp (Johnson), David G. Wondra (Kearney), Blake Edwards (Keith), Eric Scott (Keya Paha), David L. Wilson (Kimball), John Thomas (Knox), Gary Lacey (Lancaster), Rebecca R. Harling (Lincoln), Steve Vinton (Logan), Jason White (Loup), Joseph M. Smith (Madison), Tim Brouillette (McPherson), Steven M. Curry (Merrick), Jean Rhodes (Morrill), Rodney Wetovick (Nance), Louie M. Ligouri (Nemaha), Timothy S. Schmidt (Nuckolls), David J. Partsch (Otoe), Victor Faesser (Pawnee), Richard H. Roberts (Perkins), Timothy E. Hoeft (Phelps), Verlyn Luebbe (Pierce), Sandra J. Allen (Platte), Ronald E. Colling (Polk), Paul Wood (Red Willow), Douglas E. Merz (Richardson), Avery L. Gurnsey (Rock), Tad D. Eickman (Saline), Lee Polikov (Sarpy), Scott J. Tingelhoff (Saunders), Tiffany Wasserburger (Scottsbluff), Wendy L. Elston (Seward), Dennis King (Sheridan), Mark L. Eurek (Sherman), J. Adam Edmund (Sioux), W. Bert Lammli (Stanton), Daniel L. Werner (Thayer), Warren R. Arganbright (Thomas), Tammy Maul-Bodlak (Thurston), Glenn Clark (Valley), Shurie R. Graeve (Washington), Michael E. Pieper (Wayne), Jerry McDole (Webster), James J. McNally (Wheeler), Tim Sieh (York);
County Sheriffs Greg Magee (Adams), Darrell Hamilton (Antelope), Bill Simpson (Arthur), K. Patrick Mooney (Banner), Tim Sierks (Blaine), David Spiegel (Boone), Tammy Mowry (Box Butte), David Derickson (Boyd), Steve Hapner (Brown), Neil A. Miller (Buffalo), Robert Pickell (Burt), Mark Hecker (Butler), William Brueggeman (Cass), Larry Koranda (Cedar), Timothy Sutherland (Chase), Melvin Christensen (Cherry), Darrell Johnson (Cheyenne), Jeff Franklin (Clay), Paul J. Kruse (Colfax), Bradley Boyum (Cuming), Ted Henderson (Custer), James L. Wagner (Dakota), Karl Dailey (Dawes), Gary Reiber (Dawson), Jeffrey S. Ortgies (Deuel), Dean Chase (Dixon), Steve Hespen (Dodge), Timothy F. Dunning (Douglas), Robert S. McBride (Dundy), William Burgess (Fillmore), Jerry L. Archer (Franklin), Daniel Rupp (Frontier), Kurt Kapperman (Furnas), Millard “Gus” Gustafson (Gage), Doug Miller (Garden), Larry D. Donner (Garfield), Dennis Ocken (Gosper), Shawn Hebbert (Grant), David C. Weeks (Greeley), Jerry Watson (Hall), Kirk W Handrup (Hamilton), Chris Becker (Harlan), Thomas Dow (Hayes), Bryan Leggott (Hitchcock), Ben Matchett (Holt), Lynn
2

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Nichols (Hooker), Harold Schenck (Howard), Nels Sorensen (Jefferson), James P Wenzl (Johnson), Scott K. White (Kearney), Kevin Mueller (Keith), Jeff Kirsch (Keya Paha), Harry J. Gillway (Kimball), James F. Janecek (Knox), Terry Wagner (Lancaster), Jerome Kramer (Lincoln), Patrick McNeil (Logan), Kirby Holloway (Loup), Vern Hjorth (Madison), John Haller (McPherson), Anthony McPhillips (Merrick), John Edens (Morrill), Davis Moore (Nance), Brent Lottman (Nemaha), James R Marr (Nuckolls), James Gress (Otoe), Jayme Reed (Pawnee), James D. Brueggeman (Perkins), Tom Nutt (Phelps), Rick Eberhardt (Pierce), John Zavadil (Platte), Dwaine W. Ladwig (Polk), Gene Mahon (Red Willow), Vernon Buckminster (Richardson), Willis Haynes (Rock), Alan Moore (Saline), Jeff Davis (Sarpy), Kevin Stukenholtz (Saunders), Jim K. Lawson (Scotts Bluff), Joe Yocum (Seward), Terry Robbins (Sheridan), Michael F. Janulewicz (Sherman), William Roe (Sioux), Michael Unger (Stanton), David Lee (Thayer), Gary Eng (Thomas), Chris Kleinberg (Thurston), Casey D. Hurlburt (Valley), Michael Robinson (Washington), LeRoy W Janssen (Wayne), Troy Schmitz (Webster), Adrian Lindsey (Wheeler), Dale Radcliff (York);
Police Chiefs Thomas K. Casady (Lincoln), Alex Hayes (Omaha), Leonard Houloose (Papillion), Timothy S. Mullen (Fremont), Lester E. Johnson (Bennington), Ron Murtaugh (Ralston), William Gumm (Columbus), Donald Klug (York);
Defendants.
COME NOW the Plaintiffs, by and through their counsel of record, and hereby submit
their Complaint for declaratory and injunctive relief. This action is brought pursuant to 42
U.S.C. § 1983 to challenge the constitutionality of the Nebraska Sex Offender Registration Act,
Neb. Rev. Stat. § 29-4001 et seq., as modified by LB 97 and LB 285.
On May 20, 2009, Gov. David Heinemann signed LB 97 into law. It became effective as
of May 21, 2009. It modified the then-existing version of the Nebraska Sex Offender
Registration Act. On May 26, 2009, LB 285 was signed into law, but it will not take effect until
January 1, 2010. LB 285 amended portions of LB 97, and further modified the Nebraska Sex
3

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Offender Registration Act. LB 285 also included the creation of a new crime, the unlawful use of the internet by a prohibited sex offender. These two bills together, along with the unchanged portions of the previous act, constitute the current version of the Nebraska Sex Offender Registration Act (hereafter the “New Act”).1
The New Act represents a significant departure from the previous sex offender registry, infringing on core constitutional rights guaranteed by the United States and Nebraska Constitutions, to wit: by imposing retroactive criminal punishment for past acts; by twice punishing a single offense; by imposing a cruel and unusual punishment; by permitting a continuous and unreasonable search and seize by law enforcement; by violating the right to due process; by violating the right to equal protection of the law and constituting special legislation; by violating the right to free speech; by substantially impairing the contractual plea agreements entered into by some Plaintiffs; and by violating the separation of powers mandated by the Nebraska Constitution.
JURISDICTION AND VENUE 1. Subject matter jurisdiction over the federal constitutional issues is proper in this Court
pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has supplemental subject matter jurisdiction over the state law issues pursuant to 28 U.S.C. § 1367. This Court has jurisdiction to order injunctive and declaratory relief pursuant to 28 U.S.C. § 2201 and 42 U.S.C. § 1983. 2. Venue is proper in this Court pursuant to 28 U.S.C. § 1391. All parties reside in Nebraska.
1 The specific statues that are challenged by Plaintiffs are: Neb. Rev. Stat. §§ 29-4001.01 through 4006, and 4009 through 4013 (now constituting an ex post facto statutory scheme); Neb. Rev. Stat. § 29-4006 (now permitting an unreasonable search and seizure by law enforcement); Neb. Rev. Stat. § 29-4009 and 4013 (now eliminating the individual assessment to determine the level of community notification and imposing website notification for all registrants); Neb. Rev. Stat. § 29-4001.01 (now providing for vague definitions used throughout rendering the New Act susceptible to arbitrary enforcement and noncompliance); Neb. Rev. Stat. § 28-322.05 (now criminalizing certain types of speech for some registrants and infringing on the right to association); Neb. Rev. Stat. §§ 29-4001.01 through 4006, and 4009 through 4013 (now constituting a modification of the terms and conditions of plea agreements and a violation of separation of powers).
4

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PARTIES 3. John Doe 1 resides in Douglas County, Nebraska. He was convicted of a sexual offense
in 1996 and is currently not on the registry. 4. John Doe 2 resides in Douglas County, Nebraska. He was convicted of sexual offenses
in 1999 and 2004 and is currently a Level II registered sex offender. 5. John Doe 3 is a resident of Douglas County, Nebraska. He was convicted of a sexual
offense in 2001 and is currently a Level I registered sex offender. 6. John Doe 4 is a resident of Douglas County, Nebraska. He was convicted of a sexual
offense in 2002 and is currently a Level II registered sex offender. 7. John Doe 5 is a resident of Stanton County, Nebraska. He was convicted of a sexual
offense in 2000 and is currently a Level III registered sex offender. 8. John Doe 6 is a resident of Sarpy County, Nebraska. He was convicted of a sexual
offense in 1999 and is currently a Level III registered sex offender. 9. John Doe 7 is a resident of Dodge County, Nebraska. He was convicted of a sexual
offense in 2005 and is currently a Level I registered sex offender. 10. John Doe 8 is a resident of York County, Nebraska. He was convicted of a sexual
offense in 1989 and is currently a Level III registered sex offender. 11. John Doe 9 is a resident of Douglas County, Nebraska. He was convicted of a sexual
offense in 2005 and is currently a Level I registered sex offender. 12. Jane Doe 10 is a resident of Lancaster County, Nebraska. She was convicted of a sexual
offense in 2004 and is currently a Level I registered sex offender. 13. John Doe 11 is a resident of Saunders County, Nebraska. He was convicted of a sexual
offense in 2000 and is currently a Level I registered sex offender. 14. John Doe 12 is a resident of Douglas County, Nebraska. He was convicted of sexual
offenses in 2001 and 2004 and is currently a Level II registered sex offender. He brings this action on his own behalf and on behalf of Jane Doe H and John Doe K as their parent, guardian and next friend. 15. John Doe 13 is a resident of Polk County, Nebraska. He was convicted of a sexual
5

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offense in 2005 and is currently a Level II registered sex offender. 16. John Doe 14 is a resident of Douglas County, Nebraska. He was convicted of a sexual
offense in 1994 and is currently a Level II registered sex offender. 17. John Doe 15 is a resident of Platte County, Nebraska. He was convicted of a sexual
offense in 1998 and is currently a Level III registered sex offender. 18. John Doe 16 is a resident of Douglas County, Nebraska. He was convicted of a sexual
offense in 2006 and is currently a Level II registered sex offender. 19. John Doe 17 is a resident of Lancaster County, Nebraska. He was convicted of a sexual
offense in 2004 and is currently a Level II registered sex offender. 20. John Doe 18 is a resident of Douglas County, Nebraska. He was convicted of a sexual
offense in 2001 and is currently a Level II registered sex offender. 21. John Doe 19 is a resident of Nebraska. He was convicted of a sexual offense in 2001 and
is currently a Level II registered sex offender. 22. John Doe 20 is a resident of Douglas County, Nebraska. He was convicted of a
nonsexual offense in 1994 and is currently a Level III registered sex offender. 23. Jane Doe A is a resident of York County, Nebraska. She is married to John Doe 8 and
resides with him in their marital home. 24. Jane Doe B is a resident of Douglas County, Nebraska. She is married to John Doe 16
and resides with him in the marital home. 25. John Doe C is a resident of Lancaster County, Nebraska. He is an attorney who employs
Jane Doe 10. 26. Jane Doe D is a resident of Stanton County, Nebraska. She is the mother of John Doe 5,
and lives in the same residence as Doe 5. 27. John Doe E resides in Nebraska. He owns a business and employs Doe 12 as a computer
consultant for the database and website used by the business. 28. John Doe F is a resident of Lancaster County, Nebraska. He owns a computer/internet
conferencing company and employs Doe 17, his son. 29. Jane Doe G is a resident of Douglas County, Nebraska. She is married to and is business
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partners with Doe 12. Doe G brings this action on her own behalf and on behalf of Jane Doe I as her parent, guardian and next friend. 30. Jane Doe H is a resident of Douglas County, Nebraska and the minor daughter of Doe 12. Doe H visits Doe 12 at his residence regularly, and he visits and conducts business in the home in which she resides. 31. Jane Doe I is a resident of Douglas County, Nebraska and the minor daughter of Doe G. Doe I visits Doe 12 at his residence regularly, and he visits and conducts business in the home in which she resides. 32. John Doe J is a resident of Douglas County, Nebraska and the son of Doe 12. Doe J visits Doe 12 at his residence regularly, and Doe 12 visits and conducts business in the home in which Doe J resides. 33. John Doe K is a resident of Douglas County, Nebraska and the minor son of Doe 12. Doe K visits Doe 12 at his residence regularly, and Doe 12 visits and conducts business in the home in which Doe K resides. 34. Defendant State of Nebraska is a sovereign, independent state of the United States of America. 35. Defendant Nebraska State Patrol is an agency of the State of Nebraska. It is responsible for the enforcement of criminal and motor vehicle laws within the state, and it is responsible for the administration of the sex offender registry and community notification in Nebraska. 36. Defendant Jon Bruning, Attorney General of Nebraska, is the authorized legal representative for the State of Nebraska and is responsible for the enforcement of laws and prosecution of crimes throughout the State. He is sued in his official capacity. 37. Defendant Col. Bryan Tuma is Superintendant of Law Enforcement and Public Safety for the Nebraska State Patrol. He is sued in his official capacity. 38. Defendants Donna Fegler Daiss (Adams), Michael Long (Antelope), Richard Roberts (Arthur), James L. Zimmerman (Banner), Glenn Clark (Blaine), John Morgan (Boone), Kathleen J. Hutchinson (Box Butte), Ashley Boettcher (Boyd), David M. Streich
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(Brown), Shawn R. Eatherton (Buffalo), Daniel A. Smith (Burt), Julie L. Reiter (Butler), Nathan Cox (Cass), George L. Hirschbach (Cedar), Arlan G. Wine (Chase), Eric Scott (Cherry), Paul B. Schaub (Cheyenne), Ted S. Griess (Clay), Francis D. Botelho (Colfax), Thomas B. Donner (Cuming), Tami Schendt (Custer), Kim W. Watson (Dakota), Vance Haug (Dawes), Elizabeth F. Waterman (Dawson), Douglas D. Palik (Deuel), Leland K. Miner (Dixon), Paul J. Vaughan (Dodge), Donald W. Kleine (Douglas), James D. Owens (Dundy), Jill R. Cunningham (Fillmore), Patrick A. Duncan (Franklin), Jon S. Schroeder (Frontier), Tom Patterson (Furnas), Randall Ritnour (Gage), Philip E. Pierce (Garden), Dale Crandall (Garfield), Todd D. Wilson (Gosper), A. James Moravek (Grant), James Swanson (Greeley), Mark Young (Hall), Michael H. Powell (Hamilton), Bryan S. McQuay (Harlan), Joel W. Phillips (Hayes), D. Eugene Garner (Hitchcock), Thomas P. Herzog (Holt), George G. Vinton (Hooker), David T. Schroeder (Howard), Linda A. Bauer (Jefferson), Julie Smith Hogancamp (Johnson), David G. Wondra (Kearney), Blake Edwards (Keith), Eric Scott (Keya Paha), David L. Wilson (Kimball), John Thomas (Knox), Gary Lacey (Lancaster), Rebecca R. Harling (Lincoln), Steve Vinton (Logan), Jason White (Loup), Joseph M. Smith (Madison), Tim Brouillette (McPherson), Steven M. Curry (Merrick), Jean Rhodes (Morrill), Rodney Wetovick (Nance), Louie M. Ligouri (Nemaha), Timothy S. Schmidt (Nuckolls), David J. Partsch (Otoe), Victor Faesser (Pawnee), Richard H. Roberts (Perkins), Timothy E. Hoeft (Phelps), Verlyn Luebbe (Pierce), Sandra J. Allen (Platte), Ronald E. Colling (Polk), Paul Wood (Red Willow), Douglas E. Merz (Richardson), Avery L. Gurnsey (Rock), Tad D. Eickman (Saline), Lee Polikov (Sarpy), Scott J. Tingelhoff (Saunders), Tiffany Wasserburger (Scottsbluff), Wendy L. Elston (Seward), Dennis King (Sheridan), Mark L. Eurek (Sherman), J. Adam Edmund (Sioux), W. Bert Lammli (Stanton), Daniel L. Werner (Thayer), Warren R. Arganbright (Thomas), Tammy Maul-Bodlak (Thurston), Glenn Clark (Valley), Shurie R. Graeve (Washington), Michael E. Pieper (Wayne), Jerry McDole (Webster), James J. McNally (Wheeler), Tim Sieh (York) are the County Attorneys for the 93 counties in Nebraska, responsible for the prosecution of crimes in
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their respective counties, hereafter referred to as “County Attorneys.” Each County Attorney is sued in his or her official capacity. 39. Pursuant to Neb. Rev. Stat. § 29-4011(3), any law enforcement agency with jurisdiction over the area where a registrant resides, has a temporary domicile or habitual living location, is employed, carries on a vocation, or attends school is responsible for the enforcement of and investigation into violations of the Sex Offender Registry Act. 40. Defendants Greg Magee (Adams), Darrell Hamilton (Antelope), Bill Simpson (Arthur), K. Patrick Mooney (Banner), Tim Sierks (Blaine), David Spiegel (Boone), Tammy Mowry (Box Butte), David Derickson (Boyd), Steve Hapner (Brown), Neil A. Miller (Buffalo), Robert Pickell (Burt), Mark Hecker (Butler), William Brueggeman (Cass), Larry Koranda (Cedar), Timothy Sutherland (Chase), Melvin Christensen (Cherry), Darrell Johnson (Cheyenne), Jeff Franklin (Clay), Paul J. Kruse (Colfax), Bradley Boyum (Cuming), Ted Henderson (Custer), James L. Wagner (Dakota), Karl Dailey (Dawes), Gary Reiber (Dawson), Jeffrey S. Ortgies (Deuel), Dean Chase (Dixon), Steve Hespen (Dodge), Timothy F. Dunning (Douglas), Robert S. McBride (Dundy), William Burgess (Fillmore), Jerry L. Archer (Franklin), Daniel Rupp (Frontier), Kurt Kapperman (Furnas), Millard “Gus” Gustafson (Gage), Doug Miller (Garden), Larry D. Donner (Garfield), Dennis Ocken (Gosper), Shawn Hebbert (Grant), David C. Weeks (Greeley), Jerry Watson (Hall), Kirk W Handrup (Hamilton), Chris Becker (Harlan), Thomas Dow (Hayes), Bryan Leggott (Hitchcock), Ben Matchett (Holt), Lynn Nichols (Hooker), Harold Schenck (Howard), Nels Sorensen (Jefferson), James P Wenzl (Johnson), Scott K. White (Kearney), Kevin Mueller (Keith), Jeff Kirsch (Keya Paha), Harry J. Gillway (Kimball), James F. Janecek (Knox), Terry Wagner (Lancaster), Jerome Kramer (Lincoln), Patrick McNeil (Logan), Kirby Holloway (Loup), Vern Hjorth (Madison), John Haller (McPherson), Anthony McPhillips (Merrick), John Edens (Morrill), Davis Moore (Nance), Brent Lottman (Nemaha), James R Marr (Nuckolls), James Gress (Otoe), Jayme Reed (Pawnee), James D. Brueggeman (Perkins), Tom Nutt (Phelps), Rick Eberhardt (Pierce), John Zavadil (Platte), Dwaine W. Ladwig (Polk), Gene Mahon (Red
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Willow), Vernon Buckminster (Richardson), Willis Haynes (Rock), Alan Moore (Saline), Jeff Davis (Sarpy), Kevin Stukenholtz (Saunders), Jim K. Lawson (Scotts Bluff), Joe Yocum (Seward), Terry Robbins (Sheridan), Michael F. Janulewicz (Sherman), William Roe (Sioux), Michael Unger (Stanton), David Lee (Thayer), Gary Eng (Thomas), Chris Kleinberg (Thurston), Casey D. Hurlburt (Valley), Michael Robinson (Washington), LeRoy W Janssen (Wayne), Troy Schmitz (Webster), Adrian Lindsey (Wheeler), Dale Radcliff (York), are the County Sheriffs of their respective counties in Nebraska (hereafter referred to as “Sheriffs”). Each Sheriff is sued in his or her official capacity. 41. Defendants Thomas K. Casady (Lincoln), Alex Hayes (Omaha), Leonard Houloose (Papillion), Timothy S. Mullen (Fremont), Lester E. Johnson (Bennington), Ron Murtaugh (Ralston), William Gumm (Columbus), Donald Klug (York) are the Police Chiefs of their respective cities (hereafter referred to as “Police Chiefs”). Each Police Chief is sued in his or her official capacity.
SUMMARY OF THE NEBRASKA SEX OFFENDER REGISTRATION LAW Broadened Applicability of the New Act - Neb. Rev. Stat. § 29-4003 42. Pursuant to Neb. Rev. Stat. § 29-4003(1)(a), the New Act applies to any individual who,
on or after January 1, 1997: a. Has ever pled guilty to, nolo contendere to, or been found guilty of any of the
enumerated sexual and nonsexual offenses under Nebraska law; b. Has ever pled guilty to, pled nolo contendere to, or been found guilty of any offense
that is substantially equivalent to a registrable offense by any other jurisdiction; c. Is incarcerated, in a public or private institution, or on probation or parole for
pleading guilty to or being found guilty of a registrable offense prior to January 1, 1997; or d. Enters the state and is required to register as a sex offender under the laws of another jurisdiction of the United States. 43. In addition, Neb. Rev. Stat. § 29-4003(1)(b) states that the New Act applies to any
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individual who, on or after January 1, 2010: a. Has ever pled guilty to, pled nolo contendere to, or been found guilty of various
degrees of murder, manslaughter, various degrees of assault, stalking, unlawful intrusion on a minor, kidnapping, false imprisonment, or attempt, solicitation, aiding or abetting, being an accessory, or conspiracy to commit any of these offenses, when a court finds evidence of sexual contact or penetration in the record; b. Has ever pled guilty to, pled nolo contendere to, or been found guilty of various degrees of sexual abuse of an inmate or parolee, sexual abuse of a protected individual, incest, child abuse with a sexual component, enticement by electronic communication device, or attempt, solicitation, aiding or abetting, being an accessory, or conspiracy to commit an offense listed; c. Has ever pled guilty to, pled nolo contendere to, or been found guilty in another jurisdiction of an offense that is substantially equivalent to those listed above; or d. Enters the state and is required to register as a sex offender under the laws of another jurisdiction of the United States. 44. Prior to the modifications made by LB 97 and LB 285, the sentencing court had limited discretion to determine that the Act did not apply. When the charged offense was kidnapping, false imprisonment of a minor, or debauching a minor, the sentencing court could examine mitigating circumstances and determine that, in light of all the facts, the offense was committed without a sexual element. This was an effective means by which a sentencing court could ensure that the Act was applied only in appropriate cases. 45. The New Act eliminates this discretion. Now, the sentencing court does not have the ability to review the facts of each case to determine that the offense committed does not justify application of the New Act.2 46. In addition, the New Act’s inclusion and repeated use of the term “ever” is vague and susceptible to arbitrary enforcement.
2 For example, an individual convicted of false imprisonment under Neb. Rev. Stat. § 28-315, a misdemeanor that does not contain a sexual element, will be subject to the registration and public notification requirements.
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Registration and In-person Reporting - Neb. Rev. Stat. § 29-4004 47. Neb. Rev. Stat. § 29-4004(2) requires a subject individual to inform the sheriff of the
county in which he or she resides in person if he or she has a new address, temporary domicile, or habitual living location, within three working days before the change.3 This reporting must be done in-person, and the registrant must also complete a form prescribed by the State Patrol for such purpose. 48. Neb. Rev. Stat. § 29-4004(3) requires a subject individual to inform the sheriff of the county in which he or she resides in person if he or she has a new address, temporary domicile, or habitual living location in a different county in this state within three working days before the address change, and to register with the county sheriff of his or her new residence within three working days after the address change. Neb. Rev. Stat. § 29-4004(4) provides for the substantially same procedure if an individual is moving outof-state. This reporting must be done in-person, and the registrant must also complete a form prescribed by the State Patrol for such purpose. 49. The remaining subsections of Neb. Rev. Stat. § 29-4004 impose similar notification requirements on the subject person relating to education, employment, vocations, subsequent incarceration, and loss of address, temporary domicile, or habitual living location. Again, the registrant must report in-person and he or she must also complete a form for that purpose. 50. Because the definitions added by LB 97 and augmented by LB 285 are so vague and confusing, the New Act is virtually impossible to comply with as it relates to the registration requirements for individuals subject to the Act. 51. “Temporary domicile” is defined as any place at which the person actually lives or stays for a period of at least three working days. “Habitual living location” is defined as any
3 This subsection in the prior Act clearly applied to intra-county moves only, but that language was eliminated under the New Act. Apparently, this subsection now merely restates the requirement to inform the sheriff of any move, even though that requirement is restated in other subsections as well, thereby reinforcing the vagueness of the New Act.
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place that an offender may stay for a period of more than three days even though the sex offender maintains a separate permanent address or temporary domicile. 52. First, the unclear definition of temporary domicile, coupled with the reporting requirement, renders the statute impossible to comply with. The New Act requires a registrant to inform the sheriff in the county where he or she resides before the person actually lives or stays in another place for at least three working days. Only a soothsayer could predict how long certain out-of-county trips will take, but the Act imposes such an affirmative obligation on each registrant. In addition, the New Act fails to define “working days,” leaving the entire reporting structure open to interpretation and arbitrary enforcement. 53. Second, the unclear definition of habitual living location, coupled with the reporting requirement, renders the statute confusing and impossible to comply with. A habitual living location includes anywhere a registrant may stay for a period of more than three days, which includes virtually any habitual location on the planet that would permit a registrant to stay.4 The definition is also confusing because a habitual living location is measured in only “days,” not “working days” as used throughout the rest of the New Act. Adding to the confusion is the fact that, although a habitual living location is measured only in days, the time period in which to report a new habitual living location to law enforcement is still measured in “working days.” Regardless, the entire reporting scheme remains unclear and confusing because, again, the Act fails to define “working days.” 54. In addition to being vague, confusing, and susceptible to arbitrary enforcement, the inperson reporting requirements impose a significant burden on travel within the state and without.
Registration Duration - Neb. Rev. Stat. § 29-4005 55. Under the prior Act, the registration period was ten years following discharge from
4 Although this may seem like hyperbole, the New Act literally requires a registrant to inform law enforcement of virtually every address in the county, state, nation, and planet that would permit him or her to stay for three days.
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probation, parole, supervised release, or from incarceration. An individual who committed an aggravated offense, had a prior conviction for a registrable offense, was required to register for life in another jurisdiction, or who was determined to be a sexually violent predator was required to register for life. 56. Some Does were subject to the ten-year registration requirement at the time they entered into their respective plea agreements. When entering their pleas, they reasonably relied on the fact that they would be subject to the registry for a period of ten years. 57. Under the New Act, Neb. Rev. Stat. § 29-4005 now states that the registration period is determined based solely on the possible punishment for the underlying conviction, to wit: a. Fifteen years, if the registrable offense carried a maximum punishment of
imprisonment of one year or less; b. Twenty five years, if the registrable offense carried a maximum punishment of
imprisonment of more than one year; and c. Life, if the registrable offense carried a maximum punishment of imprisonment of
more than one year, and the registrant was convicted of an aggravated offense or had a prior sex offense conviction or has been determined to be a lifetime registrant in another jurisdiction. 58. This new term of registration materially modifies the law in effect at the time said Does entered into their plea agreements. 59. The extension of the registration period under the New Act past ten years and the lengthy duration for which a registrant is subject to the New Act constitute an additional punishment for a single offense.
Registrable Data and Law Enforcement Searches - Neb. Rev. Stat. § 29-4006 60. The New Act drastically expands the amount and type of information that law
enforcement is required to obtain from a registrant. In fact, the law expands the information to include data and information of family members, employers, and others that have not been convicted of a registrable offense.
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61. Neb. Rev. Stat. § 29-4006 states that registration information shall include, but not be limited to,5 such general information as name, aliases, birthday, social security numbers, etc. However, the information also includes: a. The address of each residence at which the person resides, has a temporary domicile, has a habitual living location, or will reside;6 b. The name and address of any place where the person is an employee or student or will be an employee or student, including work locations without a single worksite;7 c. The license plate number and a description of any vehicle owned or operated by the person, and its regular storage location8; d. The person's motor vehicle operator's license number; e. The person's original travel and immigration documents, professional licenses or certificates, valid motor vehicle operator's license, or state identification card submitted for photocopying; f. The person's telephone numbers; and g. A physical description of the person, including current photograph.
62. The New Act provides unprecedented and unlimited access inside a registrant’s home and personal property. The New Act requires the State Patrol to collect the following information: a. All remote communication device identifiers and addresses, including, but not limited to, all global unique identifiers, serial numbers, Internet protocol addresses, phone numbers, and account numbers specific to the device; and b. All email addresses, instant messaging identifiers, chat room identifiers, global
5 This clause permits virtually an unlimited amount of information to be collected by the State Patrol, regardless of the type or subject, thereby again rendering the New Act subject to arbitrary and capricious enforcement at the hands of law enforcement. 6 The vague definitions of “temporary domicile” and “habitual living location” again render compliance with this subsection impossible. 7 The New Act again imposes an affirmative obligation to report information that a registrant will simply not know, such as future residences, future employment, and future education. 8 The term “vehicle” is not defined, but presumably means all motor operated equipment such as cars, boats, RV’s, four-wheelers, snowmobiles, tractors, etc. The requirement that all “vehicles” that the registrant “operates” includes vehicles owned by someone other than the registrant.
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unique identifiers, and other Internet communication identifiers that the person uses or plans to use, all domain names registered by the registrant, and all blogs and Internet sites maintained by the person or to which the person has uploaded any content or posted any messages or information. 63. While Neb. Rev. Stat. § 29-4001.01 provides some definitions, it fails to defined key terms such as “remote communication device,”9 “identifiers and addresses,” “global unique identifiers,” and “other Internet communication identifiers” thereby adding to the vagueness of the New Act and how it will be enforced. 64. A registrant must provide law enforcement with email addresses, instant messaging identifiers, chat room identifiers, global unique identifiers, and other Internet communication identifiers that the person uses or plans to use. The Act also imposes an affirmative obligation to provide law enforcement with a list of all blogs and Internet sites maintained by the person or to which the person has uploaded any content or posted any messages or information. Not only is this burdensome on the registrants, but it creates a prohibition on their right to engage in first amendment activity free from government monitoring since it requires them to provide a list of all blogs and internet sites to which the registrant posts any messages, content, or information.10 65. Neb. Rev. Stat. § 29-4006(13) imposes an affirmative obligation to provide law enforcement with any changes to this list of blogs and Internet sites by the following “working day.” 66. But the New Act goes far beyond merely collecting this information from a registrant. When the registrant provides law enforcement with this information, the New Act cryptically mandates that the registrant sign a consent form giving law enforcement the ability to search all computers or other electronic communication devices possessed by
9 Although not defined, presumably this might mean all computers, cell phones, personal data assistants, gaming systems with communication capability (such as Gameboys), bullhorns, walkie talkies, tin cans connected via string, etc. 10 This includes job search sites, ebay, postboards, Amazon, requesting email updates from WhiteHouse.gov, completing the Nebraska Attorney General’s Consumer Complaint satisfaction survey, etc. Basically, nearly every website requires cookies when accessing, and nearly all commonly-used sites fall within this category.
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the person. 67. This consent form also gives law enforcement the ability to install hardware or software
to monitor the person's Internet usage on all computers or electronic communication devices possessed by the person. 68. Requiring that registrants give their consent to search the computers or electronic communication devices possessed by the person, under pain of criminal prosecution pursuant to Neb. Rev. Stat. § 29-4001, amounts to invalid, coerced consent. 69. The New Act also infringes on the privacy of the registrant’s family, roommates, employers, etc. By coercing a registrant to give “consent” to search all computers or electronic communication devices “possessed” by the registrant, the New Act includes those devices over which the registrant asserts possession or constructive possession regardless of actual ownership. Without limitation, this necessarily includes electronic communication devices and computers of the family, roommates, employer, coworkers, friends, etc. 70. Not only are computers and electronic communication devices subject to search, the New Act also gives law enforcement the apparent ability to install hardware or software on all computers and electronic communication devices to monitor Internet usage. This constitutes an ongoing search and seizure by law enforcement of property possessed by the registrant.11 71. With law enforcement constantly looking over a registrant’s shoulder, including peering into the devices of his or her family, employer, etc., the New Act constitutes an unreasonable search and seizure, without probable cause, warrant, or valid consent, which deters and chills free speech in derogation of the United States and Nebraska Constitutions.
11 Because a registrant must give consent to monitor the electronic communication devices within his or her possession, law enforcement presumably has the authority to prohibit the registrant from possessing those electronic communication devices not susceptible to monitoring, such as nearly all cell phones. Again, the New Act is unclear and open to arbitrary and capricious enforcement.
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Frequency of Information Verification - Neb. Rev. Stat. § 29-4006(4)-(6) 72. Registrants are required to report periodically to verify the information on the registry as
correct and current. This verification must be done in person at the sheriff’s office in the county in which he or she resides, has a temporary domicile, or is habitually living. 73. A fifteen year registrant shall report once per year in their birth month. 74. A twenty-five year registrant shall report every six months: the birth month and in the sixth month following the month of his or her birth. 75. A lifetime registrant shall report every three months to the office of the sheriff of the county in which he or she resides: in their birth month and every three months following the month of his or her birth. 76. If the person required to register under the act fails to report in person, the person shall be in violation of the Act, again under pain of criminal prosecution. 77. Although in-person verification occurs per the above schedule, any changes in a registrant’s email addresses, instant messaging identifiers, chat room identifiers, global unique identifiers, and other Internet communication identifiers that the registrant uses or plans to use, all domain names registered by the person, and all blogs and Internet web sites maintained by the person or to which the person has uploaded any content or posted any messages or information, must be provided to law enforcement by the next working day.
Criminalization of Certain Communication - Neb. Rev. Stat. § 28-322.05 78. The New Act criminalizes some speech for some registrants, thereby constituting an
unconstitutional prior restraint on speech. 79. Neb. Rev. Stat. § 28-322.05 only applies to registrants convicted of one of the
enumerated offenses committed against minors, including kidnapping, sexual assault, incest, pandering, visual depiction of sexually explicit conduct of a child, possessing any visual depiction of sexually explicit conduct, criminal child enticement, child enticement by means of an electronic communication device, enticement by electronic
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communication device, or attempt or conspiracy to commit any of these offenses. 80. A registrant convicted of one or more of these offenses, or an equivalent offense
committed in another jurisdiction, commits the crime of Unlawful use of the internet by a prohibited sex offender when he or she knowingly and intentionally uses a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use its social networking web site, instant messaging, or chat room service. 81. This section is vague, ambiguous, and constitutes an unconstitutional restraint on speech and free association. 82. First, the terms “social networking web site,” “instant messaging,” or “chat room service” are not defined,12 rendering the statute open to interpretation and susceptible to capricious enforcement. 83. Next, even if a definition for these terms could be imputed into the statute, the list of prohibited internet sites is so vast that the New Act virtually renders the internet unusable by a registrant subject to this additional punishment.13 84. This prohibition against speech applies regardless of whether use of a social networking web site, instant messaging, or chat room was an element of the underlying offense or whether it was an instrumentality used during commission of the registrant’s underlying act. 85. Unlawful use of the internet by a prohibited sex offender is a misdemeanor for a first offense, and a felony for any subsequent offense.14 This constitutes a prior restraint on
12 The terms “social networking web site,” “instant messaging,” and “chat room” are defined in the Nebraska Sex Offender Registration Act, which is found in Chapter 29 (Criminal Procedure) of the Nebraska Revised Statutes. However, the crime of Unlawful use of the internet by a prohibited sex offender is found in Chapter 28 (Crimes and Punishment) of the Nebraska Revised Statutes. Adding to the confusion is the fact that the term “social networking web site,” while defined in the New Act, is not used anywhere in the Act itself and is only found in Chapter 28 as an element of Unlawful use of the internet by a prohibited sex offender. Obviously, the Legislature considered the New Act and the new crime as in pari materia when drafting, clearly showing a punitive intent on the part of the Legislature. 13 For example, a registrant subject to this additional punishment would be prohibited from using ebay, educational tools such as Blackboard, YouTube, Amazon, Yahoo, ESPN.com, CNN.com, etc. 14 For example, a registrant would commit a misdemeanor by bidding on an item listed on ebay, and possibly be guilty of a felony when she later checked to determine if she submitted the winning bid.
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speech in derogation of the United States and Nebraska Constitutions.
Public Dissemination of Information - Neb. Rev. Stat. §§ 29-4009 and 4013 86. Prior to enactment of LB’s 97 and 285, all registration information gathered by law
enforcement was presumed to be confidential unless specifically exempted. Not all registrants were subject to community notification via the State Patrol website. Instead, the prior Act required the State Patrol to examine the individual registrant’s conditions of release, physical conditions such as age or illness, criminal history, and other factors to determine the risk of recidivism and commensurate level of public notification. 87. This examination resulted in a three-tiered approach to public notification. If an individual was a low risk to reoffend (Level I), only law enforcement agencies were provided with the person’s registry information. If the risk was moderate (Level II), law enforcement, schools, day cares, health care facilities for children and vulnerable adults, and religious and youth organizations were notified. Only if the risk of recidivism was determined to be high (Level III) was the individual subject to community-wide notification via the State Patrol website. 88. The tiered system allows for information to be disseminated to those groups with a real interest in being alerted to low and moderate risk individuals, while still providing for public notification when an individual poses a high risk to the community at-large. 89. A registrant is only subject to public notification and scrutiny upon an individualized determination that he or she posed a high risk to recidivate, and such determination is reviewable through the Nebraska Administrative Procedures Act. Tiered system aside, Neb. Rev. Stat. § 29-4013(3) permits law enforcement to notify the public when an individual posed a danger under circumstances not provided for by the Act. 90. The tiered system prevents dilution of registrant information through “sex offender overload” so that the public is notified of only those individuals that pose the most serious risks. The New Act is a material deviation from this approach, resulting in a dilution of information that provides little to no real useful or actionable information to
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the public. 91. Neb. Rev. Stat. § 29-4009(1) now presumes all information gathered for the registry is
not confidential, with limited exception. This section, along with Neb. Rev. Stat. § 294013(b), requires community notification for all individuals subject to the registry, not just those individuals determined to be a high risk to reoffend. This includes those registrants previously determined to be low-risk. 92. Under the New Act, all individuals subject to registration will also be subject to public notification via the State Patrol’s sex offender website, regardless of the circumstances of the offense, mitigating factors, or the individual’s risk of recidivism. 93. The New Act authorizes the State Patrol to share public notification information with a number of organizations, including social service entities that protect children, volunteer organizations, public and private agencies conducting employment background checks, public housing agencies, and health care providers conducting background checks. There is no limit on or regulation over the dissemination of information under this provision. 94. The New Act also eliminates a hearing before the State Patrol by which an individual can provide evidence as to his risk of recidivism. Previously, Neb. Rev. Stat. § 29-4013 prescribed such a procedure and the factors the Patrol must consider. 95. The New Act requires the State Patrol to adopt agency rules and regulations to implement the release of registry information. To date, no agency rule has been promulgated stating if there will be a procedure to challenge one’s status as a registrant, although letters from the State Patrol have been sent notifying registrants of their new obligations under the Act. 96. The elimination of a meaningful opportunity to present evidence before a neutral decision maker as to the necessity of community-wide, and practically speaking international, notification constitutes a violation of due process.
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IMPACT OF THE NEW ACT ON THE PLAINTIFFS 97. John Doe 1 resides in Douglas County, Nebraska. Doe 1 was convicted in 1996 in
Lancaster County District Court for sexual assault of a child. He was 19 years old at the time, and had a consensual relationship with his fifteen year old girlfriend. He was sentenced to three years of probation, and ordered to pay restitution. Doe 1 completed all his probation requirements and was discharged from probation in September, 1999. Upon completing probation in 1999, Doe 1 was classified as a Level III registrant subject to public notification. Due to the public notification, Doe 1 and his family were subject to public retribution as vandals on one occasion threw a chunk of concrete through a window of the family home. Someone also handed out fliers with his information to local businesses and schools. In 2003, Doe 1 successfully challenged his classification and was re-classified to Level II, thus removing him from community notification. He was taken off the registry in September 2009, and has had no obligation to register since. He has worked for a car dealer in the area since 2004, but his employer does not know of his conviction. Pursuant to his duties at the dealership, he operates, details and prepares vehicles for customers. He has no idea how he will possibly stay complaint with the New Act as most of the cars he operates have not received a license plate since they have not yet been purchased, and the storage location for each vehicle changes when purchased or sent to another dealer for reasons not within his control. Doe 1 uses his internet enabled home computer and cell phone extensively to pursue his hobby and interest in classic cars and to communicate with family members via the Internet. Under the New Act, he will be prohibited from using the sites he uses to stay in touch. His cell phone is capable of accessing the internet. Under the New Act he has reason to believe he will have to get rid of his phone or allow the State Patrol to install monitoring software on it. He has family that lives out of state and would be required to notify the State Patrol each time he visited them for more than three days. Although he has not had any registration requirements for a period of time, the New Act will not only put him back on the registry, but will place his name on the State Patrol website for approximately the next fifteen
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years. He will also be forced to report in person to the sheriff every six months during that time. All of these requirements plus his past experience cause him great anxiety and worry for both his personal safety and future employment. If he would have known that the State would later change the terms of his requirements under the registry he would not have entered into his original plea agreement. 98. John Doe 2 resides in Douglas County, Nebraska with his wife and children. Pursuant to plea agreements Doe 2 has twice been convicted of possession of child pornography. He was not sentenced to any jail time and has successfully completed his probation. In 2008 he requested a review of his Level II status, and has been informed that because of the New Act, his case is still pending. Under the New Act he will be a lifetime registrant. Through his employment as a network administrator, he uses many types of electronic communication devices and computers. He uses email and web based peer to peer communication software extensively at work. Even if Doe 2’s employer does not fire him when they find out he is a registered sex offender, he fears he cannot possibly stay compliant with all of the notification requirements given his constant and extensive use of electronic communication devices. He has been married to his wife for twenty years, and has children who are in high school. He and his wife previously lost their jobs because of the convictions, and he is scared that further community notification will impair his current and future employability. 99. John Doe 3 is a resident of Douglas County, Nebraska. In 2004, he pled guilty to conspiracy to commit sexual assault and is currently a Level I registrant. At the time, he lost his job in the mortgage industry, and now is forced to work from home. He is greatly reliant on the internet for work, but may be prevented from continuing his occupation because of the new crime “Use of the Internet by a Prohibited Sex Offender”. He is married and has two children that live with him, and he is worried about his wife’s continued ability to keep her job and the impact the new law will have on his children. Doe 3 owns a cell phone and computer at his home. Had he known the law at the time he entered into his plea agreement would be retroactively changed, he would not have
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entered into it. 100. John Doe 4 is a resident of Douglas County, Nebraska. Doe 4 entered into a plea
agreement and was convicted of first degree sexual assault of a child in April, 2002. He was sentenced to 180 days incarceration and was required to register as a sex offender. Since his release from incarceration Doe 4 has been and remains a Level II registrant and is subject to the registry for a period of 10 years. He is a handyman and worried that people will not hire him if he is subject to public notification. He lives in a home with his wife and two roommates who all have access to and use a computer. Doe 4 will be a 25 year registrant under the New Act. 101. John Doe 5 is a resident of Stanton County, Nebraska. In 2000, he pled guilty to first degree sexual assault, and is currently a Level III registrant. He has joint custody of his two children from a previous marriage. He owns a cell phone that is internet capable. Under the New Act he has reason to believe he will have to get rid of his phone or allow the State Patrol to install monitoring software on it. He currently lives with his mother, and she has a computer in the home that he does not use. Regardless, this computer is within his “possession” and will be subject to search and constant monitoring by the State Patrol. He works with computers at his job, and is terrified that his employer will fire him because of law enforcements ability to search, seize and monitor. He is confused about the reporting implications of the New Act, and is unsure how or if he is able to take a family cruise. 102. John Doe 6 is a resident of Sarpy County, Nebraska. He pled guilty to sexual assault of a child in 2000, and is currently a Level III registered sex offender. He and those around him will be severely impacted by the new law. At the time of his plea, he understood he would be on the registry for ten years. He would not have pled if he had known he would now be on the State Patrol website until 2025. He currently lives with his mother, stepfather and brother, all of whom have access to two computers in the home. All the information that is on their computers, cell phones, and other electronic devices will be “possessed” by Doe 6 and therefore subject to seizure by law enforcement and
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continuous search. He owns and operates a home marketing business online, the additional years of community notification and reporting requirements will severely hamper his ability to grow his business until 2025. 103. John Doe 7 is a resident of Dodge County, Nebraska. Pursuant to a plea agreement he pled guilty to attempted second degree sexual assault of a child in 2005, and is currently a Level I registered sex offender. Doe 7 has been married since 2002, and presently lives with wife and step-daughter. They maintain a family computer in their home. He is worried that if he is placed on the State Patrol website, he will lose his current job. Under the current act he is a 10 year resident. Under the New Act Doe 7, a registrant who received no jail sentence and has at all times been classified as a Level I registrant, will be a lifetime registrant. Had he known the future registration consequences of his plea, he would not have entered into it. 104. John Doe 8 is a resident of York County, Nebraska. In 1989, he was convicted in California of a lewd and lascivious act with a child and is currently a Level III registrant. He subsequently moved to Nebraska in 2005 and currently lives with his wife in their marital home. He maintains a computer in their home, but it does not have internet access. He does not own a house phone, and relies exclusively on his cell phone for communication. Under the New Act he has reason to believe he will have to get rid of his phone or allow the State Patrol to install monitoring software on it. He intends to visit friends and family in California, Ohio, Kansas, Virginia, and Colorado, but he is confused by the rigorous notification process and what notification he must provide before traveling. 105. John Doe 9 is a resident of Douglas County, Nebraska. In 2005 Doe 9 entered into a plea agreement and was convicted in Pottawattamie County, Kansas of aggravated sexual battery. At the time of the offense Doe 9 was 24 years old while the victim was 20 years old. He was discharged from probation in May, 2009. He is currently a Level I registrant. He works for an electric utility company and is required to report to various counties for work. He also uses computers as part of his employment. He lives with two
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roommates, and they collectively have access to numerous electronic devices capable of internet connection. Under the New Act Doe 9 is uncertain if he is required to report the devices he has access to but are actually owned by his roommates. He uses email to stay in touch with friends and family, which will now be subject to search by law enforcement. His family owns a farm on which he regularly works during the busy seasons. He will now be required to register in the county where the farm is located if he intends to assist them for a period exceeding three days time. Although he was determined by the State to be a low risk, he will now be subject to community notification for 25 years. Had he known the State would later change the requirements of his plea agreement, he would not have entered into it. 106. Jane Doe 10 is a resident of Lancaster County, Nebraska. She entered into a plea agreement and was convicted of third degree sexual assault in 2004. Doe 10 is currently a Level I registered sex offender. Doe 10 works primarily as a paralegal for a tax attorney in Lancaster County, Nebraska. In her work Doe 10 is required to use internet enabled computers throughout any given work day and has access to numerous forms of confidential information. She is worried she will lose her job if law enforcement is allowed to search and monitor her employer’s computer and gain access to attorney-client information. Doe 10 owns a cellular telephone. Under the New Act she will be a 15 year registrant. She would not have entered into her plea agreement if she had known that she would be subject to community notification under the new act. 107. John Doe 11 is a resident of Saunders County, Nebraska. He entered into a plea agreement and was convicted of attempted first degree sexual assault in 2000. He is currently a Level I registrant. He was married in 2005 and has three school-age sons. He coaches several sports teams in school and community leagues. Doe 11 works as a mechanic traveling to distribution centers to perform maintenance and repairs on industrial equipment. This work takes Doe 11 to several counties throughout the State of Nebraska. To complete the duties of his job Doe 11 relies heavily on an internet enabled company computer, a cell phone and a company vehicle. Doe 11 communicates with
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other employees and clients via interactive websites. He worries that once his employer learns that the work computers will be subject to search and seizure, he will lose his job. In his home Doe 11 has a computer that is used by all members of the family. Doe 11 also has a cellular telephone that he uses for personal and business purposes. He was scheduled to be off the registry in 2012, but under the New Act will now be subject to the registration requirements and community notification until 2017. Had he known the State would later change the requirements of his plea agreement, he would not have entered into it. 108. John Doe 12 is a resident of Douglas County, Nebraska. He entered into plea agreements and was found guilty to possession of child pornography in 2001 and 2004. He is currently a Level II registrant not subject to community notification. He is married and has children from a previous marriage and a step-daughter of his current marriage. Doe 12 owns an information technology company and has numerous computers and electronic communication devices within his possession, almost all used exclusively for his business. He is a public figure in his industry, and has published articles and does speaking engagements worldwide. It will be impossible for him to continue his business under the New Act. First, he will be subject to the new crime of Unlawful Use of the Internet by a Sex Offender. This restriction will effectively prevent him from operating his information technology company. Second, all of the computers, cell phones, and other electronic communication devices in his possession will be subject to search, seizure and constant monitoring. Third, he is terrified that the public notification alone will ruin his company. Under the New Act he will be listed on the State Patrol website for life. Had he known the State would later change the requirements of his plea agreement, he would not have entered into it. 109. John Doe 13 is a resident of Polk County, Nebraska. In 2005, he entered into a plea agreement and was convicted of two counts of sexual assault of a child. He currently a Level II registered sex offender. Doe 13 is a farmer who lives with his wife on the family farm and works in multiple counties. Doe 13 owns a computer as well as a cellular
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telephone. He has taken part in both group and individual counseling and is considered by his counselor to be at a low risk to re-offend. Under the New Act he will be a lifetime registrant. He would not have entered into the plea agreement had he known about the added registration requirements. 110. John Doe 14 is a resident of Douglas County, Nebraska. He entered into a plea agreement and was convicted in 1994 of sexual assault of a child. He is currently a Level II registered sex offender. He lives with his fiancé. He owns a cell phone with internet capabilities. Under the New Act he has reason to believe it will be subject to search and seizure by law enforcement as well as ongoing monitoring. As part of his job duties as a manager for a telemarketing group he is required to use a computer and the internet throughout the day. He is scared that his job is in jeopardy because his work computer will now be subject to constant search and seizure. He also engages in political discussion in online forums, and will be prevented from accessing those websites under the new act. He would not have entered into the plea agreement had he known about the added registration requirements. 111. John Doe 15 is a resident of Platte County, Nebraska. He pled guilty to first degree sexual assault in 1998, and is currently a Level III registrant. At the time of the offense Doe 15 was 23 years of age and the victim was 15 years of age. Subsequent to his conviction Doe 15 and the victim were married. Today, he lives with his girlfriend in Saunders County. He owns a cell phone with internet capability. He would not have entered into the plea agreement had he known about the added registration requirements. He will be obligated to register in multiple counties because he lives in Platte County, works in various counties across Nebraska as a welder, has family in Gage County, and owns property in other counties in the State. He is worried that his employer will no longer use him for new projects because his workplace may be subject to search by law enforcement. Furthermore, for this same reason he worries that it will be impossible to obtain future employment. Doe 15 would not have entered into his plea agreement had he known the State would later change his requirements.
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112. John Doe 16 is a resident of Douglas County, Nebraska. He was convicted at trial of first degree sexual assault in 2006 and is currently a Level II registrant. Doe 16 lives with his wife and two step-children in the home he owns with his wife. All members of the family have access to electronic communication devices in the home. Doe 16 is unsure as to what extent law enforcement will be able to search his home and electronic communication devices owned or used by his wife and step-children. He is currently employed as a telemarketer where he is required to use computers and other electronic communication devices extensively. Doe 16 is concerned that the New Act will allow law enforcement to search his place of work. He fears such constant interruptions will render him unemployable. He and his wife own two vehicles and have equal access to both. Under the New Act Doe 16 will be a lifetime registrant.
113. John Doe 17 is a resident of Lancaster County, Nebraska. He entered into a plea agreement which covered charges from two California counties in 2004. Under the agreement he plead guilty to lewd and lascivious acts with a child, attempted sexual assault of a child and possession of child pornography. Doe 17 is currently a Level II registrant subject to lifetime registration. He resides with his parents who maintain numerous electronic communication devices and computers in the residence. He works for his father’s computer hardware, conferencing, and consulting business. Restrictions relating to his “possession” of computers and electronic communication devices, and the constant search, seizure and monitoring by law enforcement are real barriers to employment. During a brief period of time while he was erroneously listed on the State Patrol website, he received disquieting mail and became ostracized in his community. He is terrified what further public notification will bring.
114. John Doe 18 is a resident of Douglas County, Nebraska. In 2001 he pled guilty and was convicted of third degree sexual assault of a child. Doe 18 is currently a Level II registrant subject to the registry for 10 years. Doe 18 lives with his wife in their marital home. In the home they have a computer and cell phones that will be subject to the New Act’s search and monitoring provisions. He and his wife own four vehicles that they both
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operate, all of which will be subject to registration. Doe 18 is currently self employed performing computer consulting and home repairs for clients. For his business, he regularly uses interactive websites that allow him to create a profile and communicate with other users. He will be prevented from continuing in this occupation because of the new criminal sanction. Doe 18 and his wife are concerned about the public retribution they may be subject to if he is subjected to public notification under the New Act. 115. John Doe 19 is a resident of Nebraska. In 2001 he entered into a plea agreement and was convicted of sexual assault of a child and sexual assault of a child without consent. He is currently a Level II registrant subject to registration for 10 years. Doe 19 primarily works driving a freight truck and travels interstate on a frequent basis. Since he travels continually Doe 19 stays overnight with friends or sleeps in his truck. He leases office space in Lancaster County to operate his music promotion and audio production company. Because of its complex requirements, Doe 19 fears that he will not be able to comply with the New Act as it requires registration notification in every county where he has a temporary domicile, habitual living location and carries on a vocation for 14 days in a row or an aggregate of 30 days in a year. Since Doe 19’s vocation is truck driving, he fears he will need to register in every county where he regularly drives. Additionally, Doe 19’s music promotion duties necessarily cause him to utilize internet websites and communicate with others via the internet. He regularly uses websites such as ebay to purchase audio equipment and musical instruments. He will not be permitted to use this website under the New Act. Under the New Act Doe 19 will be subject to public notification and will be a 25 year registrant. Doe 19 would not have entered into his plea agreement had he known the State would later change his requirements. 116. John Doe 20 is a resident of Douglas County, Nebraska. In 1994 he entered into a plea agreement and was convicted of second degree kidnapping in Polk County, Iowa. He moved to Nebraska and was required to register as a Level III. Doe 20’s classification is currently on appeal; Thus he has never been subject to public notification. Doe 20 lives with his wife and child in their marital home. He and his wife own and operate two
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vehicles. They have cellular telephones and an internet enabled computer in their home. Doe 20 fears that under the New Act he will no longer be able to own a cellular telephone; and that he will be subject to un-restricted search by law enforcement. Doe 20 will be a lifetime registrant under the New Act. At the time he entered into his plea agreement sex offender registries did not exist in Iowa or Nebraska. 117. Jane Doe A is a resident of York County, Nebraska. She is married to John Doe 9 and resides with him in their marital home. Although she has not been convicted of any crime, under the New Act she is subject to the same degree of search and seizure as her husband. She owns a cell phone that has internet access. Since she lives in the same home as her husband it will be within his possession. Under the New Act she has reason to believe it will be subject to search and seizure by law enforcement as well as ongoing monitoring. She derives great pleasure from travelling and visiting friends with her husband, but she is worried that she will not be able to because of the new in-person reporting requirements. She and her husband share the same vehicle. She does not understand why her computer use and cell phone is subject to scrutiny from law enforcement. 118. Jane Doe B is a resident of Douglas County, Nebraska. She is married to John Doe 16 and resides with him in their marital home, where they collectively use electronic devices capable of Internet communications, including a computer and cell phones. She and Doe 16 have equal access to the family vehicle. 119. John Doe C is a resident of Lancaster County, Nebraska. He is an attorney who employs Jane Doe 10, and maintains attorney-client privileged and other sensitive information regarding cases on work computers that he owns. He has serious concerns about maintaining Jane Doe 10 as an employee in light of the continuous law enforcement presence in his business. His concern is even more acute because Doe 10 is the “architect” of his network system and potentially “possesses” all the data for his practice. He is concerned that his ethical obligation for confidentiality conflicts with Doe 10’s consent to constant search and monitor, and that the only solution is to terminate her
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employment. He is also concerned that if Doe 10 remains an employee and law enforcement installs monitoring software, he will never be sure that the software is removed. He feels caught between terminating an integral employee on who he relies heavily on and risking disclosure of client information due to the monitoring software, which could result in an ethical violation and potential loss of his license to practice law. 120. Jane Doe D is a resident of Stanton County, Nebraska. She is the mother of John Doe 5, and resides with him in her residence. She owns a computer that is connected to the internet. Despite the fact that Doe 5 does not use the computer at all, it will still be subject to search and seizure by law enforcement, as well as monitoring software. 121. John Doe E is a resident of Nebraska. He owns a consulting company, and employs Doe 12 for the in-house database used by his company and its website which gives Doe 12 access to numerous computers including the corporate servers. He is shocked that Doe 12 will now have these added restrictions because while on federal supervised release, there was no such search or monitoring of his computer system. He even discussed the terms of Doe 12’s supervised release with his monitoring officer, but the terms of the New Act are more intrusive than supervised release. He is unwilling to let law enforcement search company computers and other electronic communication devices regularly, or to install monitoring software on them. Given the added intrusion into the operations of his business and the possible negative reputation for his company, he feels that the only alternative is to terminate Doe 12. This will materially impact the company in sunk costs of $60,000 -$70,000 and loss of future income of between $500,000.00 and $1,000,000.00. However, he feels that the pecuniary loss is better than the alternative under the New Act and would refuse to hire anyone subject to its requirements. 122. John Doe F is a resident of Lancaster County, Nebraska. He owns a computer company that supplies computer conferencing hardware and software, consulting, online training, and customer support. The use of computers, web-enabled cell phones, electronic communication devices, email, instant messaging, chat rooms, and other internet communication tools are integral to his operation. His son, Doe 17, is an employee, and
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he hoped that his son would play a larger role in the company after his parole ended as part of his succession plan. However, the New Act is a more restrictive form of parole and will prevent this from happening. His business requires periodic interstate travel at the last minute, which Doe 17 will not have the ability to do. He is of the opinion that the confidentiality concerns alone will prevent him from keeping his son as an employee or hiring others subject to the New Act. In addition, Doe 17 lives in the family home. Doe F maintains a separate home office at the family home and relies heavily on his home computer and cell phone to connect to the internet and conduct business from home. His wife also runs a business from home consulting pharmaceutical clients, which involves sensitive information. Doe F is concerned that law enforcement will now have access to all of his and his wife’s business computers whether at work or home, including client and employee information and trade secrets. Doe F is faced with this dilemma: either banish his son from his residence and business or have that business and residence open to law enforcement search and seizure. This is unacceptable to him personally and professionally. 123. Jane Doe G is a resident of Douglas County, Nebraska. She is married to and is a business partner with Doe 12. She plans on residing with Doe 12 and their children once he is released from supervised release in January, 2010. While her husband does not currently stay in the home they own together overnight, he is in the home daily as that is where they conduct their business. She and her children own computers, cell phones, and other internet capable devices. They collectively maintain a family cell phone plan. Since her husband has virtually free access to these devices and therefore “possesses” them, she is upset that she and her children will be subject to constant search and seizure and internet monitoring. She is perplexed that although her husband is not subject to community notification because he is not a high risk threat, their home will now be listed along with those determined to be high risk. She has heard about instances of vigilantism and is scared for her and her family’s safety. 124. Jane Doe H is a resident of Douglas County, Nebraska. She is Doe 12’s minor daughter.
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Doe 12 pays for her cell phone so they can stay in contact, but now that phone will be subject to constant monitoring by law enforcement. Doe H regularly visits Doe 12 at the home he owns with Doe G, but because of the restrictions on Doe 12’s internet usage, she worries she will not be able to use Facebook, message her friends, use YouTube, or access online games. Doe H’s claim is brought by Doe 12 on her behalf. 125. Jane Doe I is a resident of Douglas County, Nebraska and the daughter of Doe G. She owns a cell phone and computer that Doe 12 has access to and therefore “possesses,” for at least some amount of time. She is concerned that this will subject her devices to search and seizure and monitoring by law enforcement. Currently, she maintains a passwordprotected computer so the probation officer does not have to search it, but the New Act opens up her devices to more intrusive and ongoing searches. She is afraid that her mother and stepfather will decide he should not move in because of the scrutiny and public scorn that will follow him as an individual listed as a sex offender on the public notification website. Doe I’s claim is brought by Doe G on her behalf. 126. John Doe J is a resident of Douglas County, Nebraska. He is Doe 12’s son, and he resides in the residence owned by Doe 12 and Doe G. He is worried that his name is soon going to be associated with a sex offender’s, even though his father was determined not to be a high risk to reoffend. He drives a vehicle that is owned by his stepmother, but that Doe 12 operates occasionally. Therefore, a description of Doe J’s vehicle, license plate, and location where it is normally kept will be listed on the registry. Even though he has done nothing wrong, he is terrified that when law enforcement sees him driving a registered vehicle, he will be stopped, especially if he is driving with his youthful friends. He owns a computer, iPod touch, and cell phone that he naturally keeps at the house with Doe 12. Because Doe 12 has even momentary “possession” of these items on occasion, he is concerned that they will be subject to search and seizure and monitoring by the State Patrol. He is frustrated that he waited a long time to live with his father, and now he is faced with the dilemma of either permitting law enforcement to monitor his electronic devices or moving out of his father’s house.
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127. John Doe K is a resident of Nebraska. He is Doe 12’s minor son, and he visits the home owned by Doe 12 and Doe G regularly. Doe K owns a cell phone, and his father occasionally has “possession” of this phone while Doe K is visiting. He is concerned that the New Act subjects Doe K’s cell phone to search and seizure and constant monitoring by law enforcement. He is scared that he and his family will be targeted by vigilantes, even though his father was determined not to be a high risk to reoffend. Doe K’s claim is brought by Doe 12 on his behalf.
128. For all the Does, they will forever be affected by public notification via the State Patrol’s website. Once a registrant is listed, even accidentally or briefly, that person will forever be memorialized as a sex offender through websites such as familywatchdog.us and neighborhoodscan.com.
129. All registrants have expressed their concern that the registration information enumerated in Neb. Rev. Stat. § 29-4006 is nonexclusive, and that the State Patrol has the ability to expand the list of information they will have to provide. The Does are concerned that this unbridled discretion on the part of law enforcement will further impact their lives, in addition to the impact the law will have on employers, family members, roommates, etc.
130. All registrants have the added obligation to “timely update law enforcement of any of the information required to be provided by the act.” Neb. Rev. Stat. § 29-4008.
131. This means that registrants will have to constantly monitor the cell phone, computer, and other electronic communication devices owned by those around them that a registrant “possesses,” and then provide a timely15 update to law enforcement when those devices change.16
15 “Timely” is not defined in the New Act. 16 This is in addition to the obligation under Neb. Rev. Stat. § 29-4006(13) to inform law enforcement of any changes in the registrant’s email, instant message, chat room, or global unique identifier, and the domain names, blogs and websites which the registrant maintains or to which the registrant uploads any message or information within one working day.
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FIRST CAUSE OF ACTION - EX POST FACTO VIOLATION OF U.S. Constitution Article I § 10 UNDER 42 U.S.C § 1983 132. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 133. Pursuant to 42 U.S.C. § 1983, this claim is brought by Plaintiffs Doe 1 through 20 against all Defendants. 134. The events related to said Plaintiffs occurred before the enactment of the New Act. 135. The Nebraska Legislature intended the New Act to be punitive, based on its statutory construction, structure and design, and on statements made by the Legislature. 136. Even if the Legislature did not intend the New Act to be punitive, its purpose or effect is so punitive as to negate the Legislature's intent. 137. The New Act disadvantages said Plaintiffs, because it creates or enhances penalties that did not exist when said Plaintiffs’ offenses were committed. 138. The New Act creates and imposes retroactive criminal punishment for past acts, and consequently is an ex post facto law in derogation of the United States Constitution. 139. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
SECOND CAUSE OF ACTION - EX POST FACTO VIOLATION OF Nebraska Constitution Article I § 16 140. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 141. This claim is brought by Plaintiffs Doe 1 through 20 against all Defendants. 142. The Act violates the Nebraska prohibition against ex post facto punishment for the same reason that it violates the Constitution of the United States. 143. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
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THIRD CAUSE OF ACTION - DOUBLE JEOPARDY VIOLATION OF U.S. Constitutional Amendment V UNDER 42 U.S.C. § 1983 144. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 145. Pursuant to 42 U.S.C. § 1983, this claim is brought by Plaintiff Doe 1 through 20 against all Defendants. 146. Through the Legislature’s intent, the New Act is punitive and constitutes an additional punishment for said Plaintiffs’ offenses. 147. Also by its effect, the New Act is punitive and constitutes an additional punishment for said Plaintiffs offenses. 148. Such creation and enforcement of these additional punishments places said Plaintiffs in jeopardy of being twice punished for a single offense, in derogation of the Double Jeopardy Clause of the United States Constitution. 149. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
FOURTH CAUSE OF ACTION - DOUBLE JEOPARDY VIOLATION OF Nebraska Constitution Article I § 12
150. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 151. This claim is brought by Plaintiff Doe 1 through 20 against all Defendants. 152. The Act violates the Nebraska prohibition against double jeopardy for the same reason
that it violates the Constitution of the United States. 153. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this
constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
FIFTH CAUSE OF ACTION – CRUEL AND UNUSUAL PUNISHMENT VIOLATION OF U.S. Constitutional Amendment VIII UNDER 42 U.S.C. § 1983 154. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 155. Pursuant to 42 U.S.C. § 1983, this claim is brought by Plaintiff Doe 1 through 20 against
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all Defendants. 156. Through the Legislature’s intent and through its effects, the New Act is punitive and
permits punishment for said Plaintiffs that is both cruel and unusual. 157. Such creation and enforcement of the New Act places said Plaintiffs in risk of infliction
of cruel and unusual punishment, in derogation of the Cruel and Unusual Punishment Clause of the United States Constitution. 158. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
SIXTH CAUSE OF ACTION – CRUEL AND UNUSUAL PUNISHMENT VIOLATION OF Nebraska Constitution Article I § 9
159. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 160. This claim is brought by Plaintiff Doe 1 through 20 against all Defendants. 161. The Act violates the Nebraska prohibition against cruel and unusual punishment for the
same reason that it violates the Constitution of the United States. 162. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this
constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
SEVENTH CAUSE OF ACTION - UNREASONABLE SEARCH AND SEIZURE VIOLATION OF U.S. Constitutional Amendment IV UNDER 42 U.S.C. § 1983
163. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 164. Pursuant to 42 U.S.C. § 1983, this claim is brought by all Plaintiffs. 165. Said Plaintiffs have a reasonable and legitimate expectation of privacy in their residences,
computers, electronic communication devices, communications, and their respective persons. 166. The New Act authorizes the search and seizure and monitoring of said Plaintiffs’ residences, computers, electronic communication devices, and person without valid consent or prior judicial authorization by way of a warrant, supported probable cause and
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affidavit. 167. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this
constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
EIGHTH CAUSE OF ACTION - UNREASONABLE SEARCH AND SEIZURE VIOLATION OF Nebraska Constitution Article I § 7
168. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 169. This claim is brought by all Plaintiffs. 170. The Act violates the Nebraska prohibition against unreasonable search and seizure for the
same reason that it violates the Constitution of the United States. 171. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this
constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
NINTH CAUSE OF ACTION - DUE PROCESS VIOLATION OF U.S. Constitutional Amendment XIV UNDER 42 U.S.C. § 1983 172. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 173. Pursuant to 42 U.S.C. § 1983, this claim is brought by all Plaintiffs against all
Defendants. 174. The New Act is vague and ambiguous and fails to sufficiently define who is subject to the
Act, the conduct that is prohibited, information subject to registration, and the requirements under the Act with sufficient definiteness such that ordinary people can understand the obligations under the Act. 175. The New Act encourages arbitrary and discriminatory enforcement, does not permit flexibility or reasonable breadth, and does not use ordinary terms in common usage and understanding which permit adequate interpretation. 176. The New Act violates Substantive Due Process by infringing on fundamental right to defend one’s reputation, the integrity of a family, right to travel, right to earn a living, and the right to privacy of information, without adequate justification.
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177. The New Act eradicates fundamental rights but fails to provide adequate procedures. 178. The New Act fails to rationally further any legitimate government interest. 179. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this
constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
TENTH CAUSE OF ACTION - DUE PROCESS VIOLATION OF Nebraska Constitution Article I § 3 180. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 181. This claim is brought by all Plaintiffs against all Defendants. 182. The New Act violates the Due Process Clause of the Nebraska Constitution for the same reasons that it violates the Constitution of the United States. 183. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
ELEVENTH CAUSE OF ACTION - EQUAL PROTECTION VIOLATION OF U.S. Constitutional Amendment XIV UNDER 42 U.S.C. § 1983 184. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 185. Pursuant to 42 U.S.C. § 1983, this claim is brought by all Plaintiffs against all
Defendants. 186. The New Act infringes on those fundamental rights of said Plaintiffs previously
addressed. 187. The New Act is irrational, designed only to single out, target and burden an unpopular
group, and operates contrary to its intended purpose. 188. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this
constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
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TWELFTH CAUSE OF ACTION - EQUAL PROTECTION VIOLATION OF Nebraska Constitution Article I § 3
189. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 190. This claim is brought by all Plaintiffs against all Defendants. 191. The New Act violates the Equal Protection clause of the Nebraska Constitution for the
same reasons that it violates the Constitution of the United States. 192. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this
constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
THIRTEENTH CAUSE OF ACTION – SPECIAL LEGISLATION VIOLATION OF Nebraska Constitution Article III § 18
193. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 194. This claim is brought by all Plaintiffs against all Defendants. 195. The New Act violates the Special Legislation clause of the Nebraska Constitution by
creating an arbitrary and unreasonable method of classification, without reasonable distinction or substantial difference, creates classifications that are illusive and not real, based on distinctions without a substantial difference, and, notwithstanding the Legislature's punitive purpose in creating the class, there is no substantial difference of circumstances between those to suggest the expediency of diverse legislation. 196. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
FOURTEENTH CAUSE OF ACTION - FREEDOM OF SPEECH VIOLATION OF U.S. Constitutional Amendment I UNDER 42 U.S.C. § 1983 197. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 198. Pursuant to 42 U.S.C. § 1983, this claim is brought by all Plaintiffs. 199. The New Act violates the right to free speech guaranteed by the United States Constitution in that it suppresses speech by certain individuals from occurring, and
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criminalizes and prohibits speech in advance via social network websites, instant messaging, or chat rooms, thereby constituting a prior restraint. 200. The New Act is also vague and overbroad in its prohibition on speech, and it operates to chill other speech through the constant monitoring of electronic communication by law enforcement. 201. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
FIFTEENTH CAUSE OF ACTION - FREEDOM OF SPEECH VIOLATION OF Nebraska Constitution Article I § 5
202. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 203. This claim is brought by all Plaintiffs. 204. The New Act violates the right to free speech guaranteed by the Nebraska Constitution
for the same reasons that it violates the Constitution of the United States. 205. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this
constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
SIXTEENTH CAUSE OF ACTION - CONTRACTS CLAUSE VIOLATION OF U.S. Constitution Article I § 10 UNDER 42 U.S.C. § 1983 206. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 207. On information and belief, this claim is brought by Plaintiffs Doe 2, 3, 4, 7, 9 through 15, 17, 19, and 20 against all Defendants pursuant to 42 U.S.C. § 1983. 208. Pursuant to Nebraska law, some Plaintiffs entered into a contract when they entered into a plea agreement for an offense. 209. As part of said agreement, the Plaintiffs understood that his or her obligation to register would be for a specific period of time and each would have an opportunity to submit evidence for community notification purposes. 210. Said Plaintiffs reasonably relied on the registration duration requirements, and the
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particular registration period and tiered notification structure were consideration for said Plaintiffs to enter their pleas. 211. This understanding gave rise to a vested right in said Plaintiffs within the purview of the Contracts Clause of the United States Constitution. 212. The New Act will substantially impair said Plaintiffs preexisting contractual relationship with the State by imposing new terms which were not negotiated and agreed-to, and will operate to either significantly increase supervision by law enforcement in both nature and duration, and/or subject said Plaintiffs to community notification. 213. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
SEVENTEENTH CAUSE OF ACTION - CONTRACTS CLAUSE VIOLATION OF Nebraska Constitution Article I § 16
214. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 215. On information and belief, this claim is brought by Plaintiffs Doe 2, 3, 4, 7, 9 through 15,
17, 19, and 20 against all Defendants. 216. The Act violates the Contracts Clause of the Nebraska Constitution for the same reason
that it violates the Constitution of the United States. 217. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this
constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
EIGHTEENTH CAUSE OF ACTION - SEPARATION OF POWERS VIOLATION OF Nebraska Constitution Article II § 1
218. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 219. This claim is brought by Plaintiffs Doe 1 through 20 against all Defendants. 220. The New Act violates the separation of powers mandated by the Nebraska Constitution as
it alters previous final judicial orders, operates to vacate existing judgments and sentences regarding the determination of registrant’s risk to reoffend, effectively
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reclassifies all registrants as Tier III registrants with a high risk to reoffend, and reverses final court orders relating to the length of time that each offender must register. 221. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray the Court grant them the relief as requested:
A. A declaration that LB 97 and LB 285 violate, both facially and as applied, the ex post facto clause of the United States Constitution;
B. A declaration that LB 97 and LB 285 violate, both facially and as applied, the ex post facto clause of the Nebraska Constitution;
C. A declaration that LB 97 and LB 285 violate, both facially and as applied, the double jeopardy clause of the United States Constitution;
D. A declaration that LB 97 and LB 285 violate, both facially and as applied, the double jeopardy clause of the Nebraska Constitution;
E. A declaration that LB 97 and LB 285 violate, both facially and as applied, the cruel and unusual punishment clause of the United States Constitution;
F. A declaration that LB 97 and LB 285 violate, both facially and as applied, the cruel and unusual punishment clause of the Nebraska Constitution;
G. A declaration that LB 97, as amended by LB 285, violates, both facially and as applied, the search and seizure clause of the United States Constitution;
H. A declaration that LB 97, as amended by LB 285, violates, both facially and as applied, the search and seizure clause of the Nebraska Constitution;
I. A declaration that LB 97 and 285 violate, both facially and as applied, the due process clause of the United States Constitution;
J. A declaration that LB 97 and 285 violate, both facially and as applied, the due process clause of the Nebraska Constitution;
K. A declaration that LB 97 and 285 violate, both facially and as applied, the equal
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protection clause of the United States Constitution; L. A declaration that LB 97 and 285 violate, both facially and as applied, the equal
protection clause of the Nebraska Constitution; M. A declaration that LB 97 and 285 violate, both facially and as applied, the special
legislation clause of the Nebraska Constitution; N. A declaration that LB 97 and 285 violate, both facially and as applied, the freedom of
speech guaranteed by the United States Constitution; O. A declaration that LB 97 and 285 violate, both facially and as applied, the freedom of
speech guaranteed by the Nebraska Constitution; P. A declaration that LB 97 and 285 violate, both facially and as applied, the contracts
clause of the United States Constitution; Q. A declaration that LB 97 and 285 violate, both facially and as applied, the contracts
clause of the Nebraska Constitution; R. A declaration that LB 97 and 285 violate, both facially and as applied, the separation of
powers doctrine of the Nebraska Constitution; S. A preliminary injunction prohibiting each Defendant from enforcing LB 97 and LB 285
during the pendency of this matter; T. A permanent injunction prohibiting each Defendant from enforcing LB 97 and LB 285; U. Reasonable attorney fees; and V. Other and further relief the Court deems just and equitable.
JURY TRIAL DEMANDED Plaintiffs demand a trial by jury for all causes of action.
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DATED: December 16, 2009.

John Doe and Jane Doe 1 through 20, John Doe and Jane Doe A through K, Doe 12 on behalf of Does H and K, minors, and Doe G on behalf of Doe I, minor,
Plaintiffs,

BY: s/ Stuart J. Dornan Stuart J. Dornan, #18553 Jason E. Troia, #21793 Rodney C. Dahlquist, Jr., #23912 Blake Richards, #24705 Dornan, Lustgarten & Troia, PC LLO 1403 Farnam Street, Suite 232 Omaha, Nebraska 68102 (402) 884-7044 Attorneys for Plaintiffs

46

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

JOHN DOE and JANE DOE 1 through )

20, JOHN DOE and JANE DOE A )

through K, DOE 12 on behalf of DOES )

H and K, minors, and DOE G on behalf )

of DOE I, minor,

)

)

Plaintiffs,

)

)

v.

)

)

STATE OF NEBRASKA, et al.,

)

)

Defendants.

)

8:09CV456 MEMORANDUM AND ORDER

Plaintiffs attack amendments to Nebraska’s Sex Offender Registration Act that become effective January 1, 2010. With exceptions noted below, I decide that a preliminary injunction is unwarranted. By and large, Nebraska has only done what Congress (and the Attorney General of the United States pursuant to a delegation from Congress) permitted or required.

The exceptions: In the interim, Nebraska will not be allowed to enforce the following statutes against persons who have been convicted of sex offenses but who have completed their criminal sentences and who are not on probation, parole, or court-ordered supervision, to wit:

(1) Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010) (requiring consent to search and installation of monitoring hardware and software) and

(2) Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010) (making it a crime to use Internet social networking sites accessible by minors by a person required to register under the Sex Offender Registration Act).

I. Background
This suit was filed on December 16, 2009. Injunctive and declaratory relief are sought. The action is brought by several plaintiffs who have been convicted of sexual offenses. Many of the plaintiffs are currently registered under the Nebraska Sex Offender Registration Act. With one exception, counsel for the plaintiffs has represented that none of these plaintiffs are currently the subject of a criminal prosecution or a probation revocation or similar dispute. Counsel has also represented that at least some of these plaintiffs who have been convicted of sexual offenses have served their time and are no longer on probation or parole or court supervision, although they may remain required to register.
Certain plaintiffs are not offenders, but they are associated with other plaintiffs who have been convicted of sexual offenses. For example, one of the plaintiffs is a lawyer who employs one of the other plaintiffs convicted of a sexual offense; another is a mother who lives with a son who has been convicted of a sexual offense; and yet another is a spouse who lives and conducts business with her husband who has been convicted of a sexual offense.
The suit seeks to prohibit enforcement of portions of Nebraska Legislative Bill 285 (Approved by the Governor May 29, 2009) (LB 285) and Nebraska Legislative Bill 97 (Approved by the Governor May 20, 2009) (LB 97). These changes amended Nebraska’s Sex Offender Registration Act and related statutes and, with certain exceptions, go into effect on January 1, 2010. See LB 285 § 14. Although both bills were passed during the same year, they were not passed at the same time. LB 97 was passed first. LB 285 was passed second. Because LB 285 amends LB 97, one must read both bills together to understand the changes to the law.
The specific statutes that are challenged by Plaintiffs, and an abbreviated summary of the reasons for the challenge, are set forth below:
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Neb. Rev. Stat. §§ 29-4001.01 through 4006, and 4009 through 40131 amount to the ex post facto imposition of punishment;
Neb. Rev. Stat. § 29-4006 provides for unreasonable searches and seizures;
Neb. Rev. Stat. §§ 29-4009 and 4013 unreasonably eliminate individual assessments to determine the level of community notification and unreasonably impose website notification for all registrants;
Neb. Rev. Stat. § 29-4001.01 employs vague definitions, making the laws susceptible to arbitrary enforcement and inadvertent noncompliance;
Neb. Rev. Stat. § 28-322.052 creates a new crime and wrongly criminalizes certain types of speech and infringes upon the right of association; and
Neb. Rev. Stat. §§ 29-4001.01 through 4006, and 4009 through 4013 improperly and retroactively modify the terms and conditions of plea agreements and violate separation of powers doctrine.
(See Filing 1, Complaint at CM/ECF p. 4 n.1.)
The defendants are the State of Nebraska, the Nebraska Attorney General, the Nebraska State Patrol, the Superintendent of the State Patrol, local prosecutors
1The challenged versions of Neb. Rev. Stat. §§ 29-4001.01, 29-4004, 29-4005, 29-4006, 29-4007, 29-4009, 29-4011, and 29-4013 become operative January 1, 2010. For a codification of Nebraska’s Sex Offender Registration Act both before and after January 1, 2010, see Volume 7B, Revised Statutes of Nebraska Annotated, Chapter 29 pp. 675-712 (Lexis/Nexis) (2009 Replacement Vol.).
2There is a technical argument that this new crime inadvertently became operative in 2009. However, Nebraska’s Attorney General has represented that the law does not become operative until January 1, 2010. I proceed on that assumption.
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(county attorneys), and various local law enforcement officers (county sheriffs and chiefs of police).
Despite the fact that Plaintiffs challenge state law, an understanding of federal law is critical. The Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, was enacted on July 27, 2006. Title I of the Act, entitled the Sex Offender Registration and Notification Act (“SORNA”), creates a national sex offender registry law. In addition to defining the term “sex offender” and addressing the various tiers of sex offender status, 42 U.S.C. § 16911, SORNA also requires every jurisdiction to maintain a sex offender registry conforming to the requirements of SORNA. 42 U.S.C. § 16912. It also requires that each state impose a criminal penalty “greater than 1 year” for failing to comply with the state registration requirement. 42 U.S.C. § 16913(e).
If a state fails to comply with SORNA, it loses federal funds. 42 U.S.C. § 16925. The threat of losing federal funds was a major motivator for the adoption of the legislative bills that are challenged in this case. The fear of losing the federal money was not, however, the only motivator. As discussed more fully later, Nebraska also enacted two amendments that were not required or contemplated by SORNA, and those are the amendments enjoined by this decision.
At a minimum, SORNA requires sex offenders to provide information disclosing their name and aliases, Social Security number, residence, place of employment and/or school, and vehicle information. 42 U.S.C. § 16914(a)(1)-(7). Every jurisdiction must also include in the sex offender registry the sex offender’s physical description, criminal history, current photographs, fingerprints and palm prints, DNA sample, and a photocopy of a driver’s license or identification card. 42 U.S.C. § 16914(b)(1)-(8).
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Certain information about “each” sex offender must be published on a jurisdictional website, and each jurisdiction’s website must contain full field search capabilities for participation in the National Sex Offender Public Website, which is maintained by the Attorney General. See 42 U.S.C. §§ 16918(a), 16920(b) (emphasis added). States have the option to “exempt from disclosure . . . any information about a tier I sex offender convicted of an offense other than a specified offense against a minor . . . .” 42 U.S.C. § 16918(c) (“Optional exemptions”).
In addition to the foregoing information, sex offenders must provide information regarding “those Internet identifiers the sex offender uses or will use of any type that the Attorney General determines to be appropriate . . . .” 42 U.S.C. § 16915a. This information is then made available to “social networking sites” so that such sites can compare user identifiers that become available when someone logs on to the site with identifiers made available to those sites through the Sex Offender Registry. 42 U.S.C. § 16915b.3 Essentially, this provision permits the matching of numbers or characters, but no personal data is disclosed. Under SORNA and related federal laws, sex offenders are not barred from accessing these “social networking sites.”
Sex offenders are placed in three “tiers” under SORNA. 42 U.S.C. § 16911(2), (3). Regardless of the tier, all sex offenders must register initially following conviction. 42 U.S.C. § 16913(b). Thereafter, and no later than three business days after changes in name, residence, employment, or student status, all sex offenders, regardless of tier, must “appear in person” and update his or her registration so that it is current. 42 U.S.C.§ 16913(c) (emphasis added). Still further, a sex offender must “appear in person,” allow a photograph to be taken, and verify registry
342 U.S.C. § 16915a and 42 U.S.C. § 16915b were added in 2008 after SORNA, but they are codified with SORNA. See “Codification” discussion in United States Code Annotated, Supplementary Pamphlet, at pp. 386-87, 389 (West 2009).
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information once each year if the offender is a tier I sex offender, every six months if the offender is a tier II sex offender, and every three months if the offender is a tier III sex offender. 42 U.S.C. § 16916 (emphasis added). The duration of the registration requirement is 15 years for the first tier of sex offenders, 25 years for the next tier, and life for the third tier. 42 U.S.C. § 16915(a).
As required by SORNA, 42 U.S.C. §16912(b), the Attorney General of the United States has published guidance to interpret and implement the law. See The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. § 38030-01 (July 2, 2008) (hereinafter National Guidelines, 2008 WL 2594934). Among other things, those National Guidelines make it clear that SORNA sets a floor and not a ceiling for the states. That is, while the states must enact the minimum federal requirements, “SORNA does not bar jurisdictions from adopting additional regulation of sex offenders for the protection of the public, beyond the specific measures that SORNA requires.” National Guidelines, 2008 WL 2594934, at *38034.
The Attorney General has also made it clear that SORNA applies to sex offenders whose convictions occurred prior to the adoption of SORNA. The Attorney General has concluded that there is no “ex post facto” problem:
The applicability of the SORNA requirements is not limited to sex offenders whose predicate sex offense convictions occur following a jurisdiction’s implementation of a conforming registration program. Rather, SORNA’s requirements took effect when SORNA was enacted on July 27, 2006, and they have applied since that time to all sex offenders, including those whose convictions predate SORNA’s enactment. See 72 FR 8894, 8895-96 (Feb. 28, 2007); 28 CFR 72.3. The application of the SORNA standards to sex offenders whose convictions predate SORNA creates no ex post facto problem “because the SORNA sex offender registration and notification requirements are intended to be non-punitive, regulatory measures adopted for public
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safety purposes, and hence may validly be applied (and enforced by criminal sanctions) against sex offenders whose predicate convictions occurred prior to the creation of these requirements. See Smith v. Doe, 538 U.S. 84 (2003).” 72 FR at 8896.
National Guidelines, 2008 WL 2594934, at *38046.
For a helpful and detailed comparison of Nebraska’s law (as amended by LB 97 and LB 285) and the Adam Walsh Child Protection and Safety Act of 2006, see Appendix I to Filing 57-1, at CM/ECF pp. 1-42. For a similarly helpful and detailed comparison of Nebraska’s law, before and after LB 97 and LB 285, see Appendix II to Filing 57-2, at CM/ECF pp. 1-18. In general, and with the exceptions discussed more fully later in this opinion, the legislative changes wrought by LB 97 and LB 285 do not do much more than bring Nebraska into compliance with SORNA.
Because there was very little time between when suit was filed and when these laws became operative on January 1, 2010, a rapid preliminary injunction hearing was scheduled. That hearing was held and concluded on December 23, 2009.
Counsel for the plaintiffs presented the declarations of the plaintiffs that had been filed earlier. (Filing 6, Evidence Index & Affidavits.) Plaintiffs also presented the testimony of Dr. Lisa M. Sample, Ph.D. Dr. Sample is an Associate Professor of Criminology at the University of Nebraska at Omaha. Summarized and condensed, Dr. Sample criticized Nebraska’s new law because it did not employ an individualized assessment of risk similar to the method used under Nebraska’s old law. Counsel for Defendants presented the declarations of various individuals. (Filings 58-66, Evidence Index & Affidavits.)
During the hearing, I granted Plaintiffs’ Motion for Leave to Use Fictitious Names. (See Filing 2.) However, I required that Plaintiffs’ counsel provide the true names of the plaintiffs to defense counsel, and I also required that Plaintiffs’ counsel
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provide defense counsel with copies of the signature pages of each declaration showing that the declarations had been signed under penalty of perjury. Plaintiffs’ counsel complied with my order.
Recognizing the time constraints on the parties and the preliminary nature of these proceedings, I also overruled the defendants’ evidentiary objections (filing 54) to Plaintiffs’ declarations. That said, I gave Defendants a limited opportunity to compare the true names of the plaintiffs with records maintained by the defendants in order to investigate whether there were serious standing or other related issues raised by such an investigation. As of the date of this opinion, I have heard nothing from Defendants to suggest any such concerns. However, Defendants did file an affidavit on December 24, 2009, that gives background data on Does 1-20. (Filing 81.) That affidavit confirms that certain of the Does are active registrants who are no longer on probation, parole, or court-ordered supervision. (E.g., John Doe # 1, Filing 81 at CM/ECF p. 1.)
II. Analysis
The relevant factors to consider when assessing the propriety of preliminary injunctive relief include: (1) the likelihood of success on the merits; (2) the presence or risk of irreparable harm; (3) the balancing of the harms of granting or denying an injunction; and (4) the public’s interest. Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc). “The party seeking injunctive relief bears the burden of proving these factors.” Lankford v. Sherman, 451 F.3d 496, 503 (8th Cir. 2006). “A district court has broad discretion when ruling on preliminary injunction requests . . . .” Coca-Cola Co. v. Purdy, 382 F.3d 774, 782 (8th Cir. 2004).
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In General, Plaintiffs Are Not Entitled to Preliminary Relief
Certain things are unquestionably true when it comes to sex offender registration laws. First, the federal courts, and, most importantly, the United States Supreme Court, have consistently upheld state sex offender registration statutes as against claims that they are unconstitutional. See, e.g., Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003) (upholding registry against procedural due process challenge); Smith v. Doe, 538 U.S. 84 (2003) (finding Alaska’s sex offender registration laws constitutional despite claim that those laws were both retroactive and punitive and therefore violated the Ex Post Facto Clause). Second, the federal courts have consistently upheld SORNA as against claims that it is unconstitutional. See, e.g., United States v. Howell, 552 F.3d 709, 717 (8th Cir. 2009) (finding that section of SORNA containing underlying registration requirements was valid exercise of congressional power under Necessary and Proper Clause; registration requirements were appropriate and reasonably adapted means by Congress to attain legitimate end of monitoring and regulating interstate movement of sex offenders); United States v. May, 535 F.3d 912 (8th Cir. 2008) (holding that SORNA does not violate the Ex Post Facto Clause, the Commerce Clause, or the non-delegation doctrine). Thus, any attack on sex offender registration laws must be judged against a federal legal landscape that is unfriendly to Plaintiffs.4
Most of the amendments challenged by Plaintiffs are well within the SORNA framework. For example, Nebraska requires the offender to appear in person at various times, and this requirement mirrors SORNA. 42 U.S.C.§§ 16913(c), 16916.
4I also agree with Nebraska’s counsel that Nebraska follows federal precedents when construing its constitution. See, e.g., State v. Worm, 680 N.W.2d 151, 160-63 (Neb. 2004) (applying federal ex post facto principles). Thus, any challenge on state constitutional grounds is likely to be resolved by application of federal cases. As a result, Plaintiffs are not likely to fare any better by basing their claims on Nebraska’s constitution.
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See also Doe v. Pataki, 120 F.3d 1263, 1284-85 (2nd Cir. 1997) (finding that registration provisions of New York’s Sex Offender Registration Act (SORA), or “Megan’s Law,” imposing duty to register in person every 90 days for minimum of ten years, did not inflict “punishment” within meaning of Ex Post Facto Clause; registration served legislature’s nonpunitive goals of facilitating law enforcement and protecting public; and burdens of registration were not so punitive in form or effect as to constitute punishment). Likewise, Nebraska has chosen to publicize the names of anyone who must register as a sex offender, and not just some of those persons. SORNA does the same thing, but it gives states an option to exempt certain offenders. Compare 42 U.S.C. § 16918(a) with 42 U.S.C. § 16918(c). Nebraska has elected not to use that option, and there is nothing unconstitutional about such a choice. Furthermore, as the Attorney General of the United States contemplated would happen, Nebraska’s amendments also make adjustments to take into account local concerns, and that is perfectly acceptable. See, e.g., National Guidelines, 2008 WL 2594934, at *38031 (“Some commenters raised questions about in-state registration requirements, such as whether a sex offender who resides in one county and is employed in another would have to register in both counties. The answer is that this is a matter of state discretion.”). Likewise, Nebraska has generally elected to use an “offense of conviction” methodology, as opposed to examining the crime facts when determining registration requirements, and that is clearly permissible under SORNA. Id. (stating that “jurisdictions are not required by SORNA to look beyond the elements of the offense of conviction in determining registration requirements”). In a similar vein, Nebraska, like SORNA, eschews the use of “risk assessments” as the primary method of determining sex offender registration or notification requirements. Id. (“Some commenters asked whether a jurisdiction could be considered to have substantially implemented the SORNA requirements if the jurisdiction globally dispensed with those requirements and instead based sex offender registration or notification on individualized risk assessments of sex offenders. The answer is no . . . .”).
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In short, and except as noted below, Plaintiffs have not established a basis for preliminary injunctive relief regarding the legislative changes to Nebraska’s registry laws enacted by LB 97 and LB 285. Plaintiffs are not likely to succeed on the merits. The public interest strongly tilts in favor of Defendants. While some Plaintiffs may suffer injury, the balance of the harms favors the public safety, health, and welfare interests that Defendants represent. Nebraska’s compliance with federal law is important and the plaintiffs’ policy disagreements are less so.
It is worth emphasizing that Plaintiffs have virtually no federal case law5 that supports their generalized attack on Nebraska’s amendments. In this regard, Plaintiffs’ citation to the unpublished order in ACLU of Nevada v. Masto, No. 2:08CV822, JCM-PAL, Filing 77 (D. Nev. Oct. 7, 2008) (entitled “Revised Permanent Injunction”) is entirely unpersuasive. That order was not drafted by the judge who signed it. On the contrary, and as shown by the document itself, the order was drafted by counsel for the ACLU, and it contains only a conclusory explanation of the judge’s reasoning. (See Filing 77 in Case No. 2:08CV822.)6 Indeed, the order fails to cite even one case.
In summary, absent clear federal precedent supporting their position, Plaintiffs will not be heard to claim that Nebraska violated the Constitution because it has done what Congress and the Attorney General of the United States contemplated or required. Bluntly put, I am unwilling to allow this suit to become a back-handed way of neutering SORNA.
5With respect, I find the cases cited by Plaintiffs from other state courts like those from Alaska, Maine, and Indiana to be of very little value in understanding federal law.
6I have searched the electronic docket of that case and find no written opinion or transcript explaining the judge’s reasoning.
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In Two Respects, Nebraska Has Probably Gone Too Far
By adding two provisions to the registry framework that are entirely foreign to SORNA, Nebraska has come perilously close to voiding the entire law for offenders who have served their time and who are no longer subject to probation, parole, or other court-ordered supervision. These two provisions, when taken together, threaten to take a civil regulatory scheme and turn it into a punitive endeavor. For those that have done their time, the Ex Post Facto Clause of the Constitution7 very likely bars retroactive application of these changes.8 Moreover, and looking at each amendment separately, one change unquestionably violates the Fourth Amendment (as Nebraska concedes), and the other has the potential to adversely implicate the First Amendment.
When a person registers under Nebraska law, he or she is required to give a list of all “email addresses, instant messaging identifiers, chat room identifiers, global unique identifiers, and other Internet communication identifiers that the person uses or plans to use, all domain names registered by the registrant, and all blogs and Internet sites maintained by the person or to which the person has uploaded any content or posted any messages or information.” Neb. Rev. Stat. § 29-4006(1)(s) (West, Operative January 1, 2010). To a degree, the demand for this information is
7U.S. Const. art. I, § 10, cl. 1, provides, among other things, that: “No State shall . . . pass any . . . ex post facto Law . . . .” Among other ways of doing so, a law violates this provision when it applies to events occurring before the law’s enactment and the law disadvantages an offender, such as by increasing the punishment for a crime. See, e.g., Lynce v. Mathis, 519 U.S. 433, 441 (1997) (holding that a statute retroactively canceling provisional release credits violates the Ex Post Facto Clause).
8Luckily for Nebraska, both amendments appear to be severable. See LB 97 § 33. It should be noted that LB 285 does not appear to have repealed the severability clause found in LB 97. That is, LB 285 dealt with sections 14, 24, 25, 26, and 27 of LB 97 and not section 33 of LB 97, which contains the severability clause. See LB 285 (Introductory Statement).
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consistent with SORNA. See 42 U.S.C § 16914(a), (b); National Guidelines, 2008 WL 2594934, at *38042.9
However, Nebraska went much further and added a “consent to search” and “monitoring” requirement, to wit:
When the person provides any information under subdivision (1)(k) or (s) of this section, the registrant shall sign a consent form, provided by the law enforcement agency receiving this information, authorizing the:
(a) Search of all the computers or electronic communication devices possessed by the person; and
(b) Installation of hardware or software to monitor the person’s Internet usage on all the computers or electronic communication devices possessed by the person.
Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010).
In addition to the “consent to search” and “monitoring” requirement, Nebraska—and, again, unlike SORNA—has now made it a crime for certain offenders who must register to access certain Internet sites. That is:
(1) Any person required to register under the Sex Offender Registration Act who is required to register because of a conviction for one or more of the following offenses, including any substantially
9Certain Internet identifier information allows “social networking sites” to receive notice from the Attorney General of Internet identifier matches. 42 U.S.C. § 16915b (“The Attorney General shall establish and maintain a secure system that permits social networking websites to compare the information contained in the National Sex Offender Registry with Internet identifiers of users of the social networking websites, and view only those Internet identifiers that match.”) Unlike Nebraska, SORNA does not bar registered offenders from accessing such sites.
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equivalent offense committed in another state, territory, commonwealth, or other jurisdiction of the United States, and who knowingly and intentionally uses a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use its social networking web site, instant messaging, or chat room service, commits the offense of unlawful use of the Internet by a prohibited sex offender:
(a) Kidnapping of a minor pursuant to section 28-313;
(b) Sexual assault of a child in the first degree pursuant to section 28- 319.01;
(c) Sexual assault of a child in the second or third degree pursuant to section 28-320.01;
(d) Incest of a minor pursuant to section 28-703;
(e) Pandering of a minor pursuant to section 28-802;
(f) Visual depiction of sexually explicit conduct of a child pursuant to section 28-1463.03 or 28-1463.05;
(g) Possessing any visual depiction of sexually explicit conduct pursuant to section 28-813.01;
(h) Criminal child enticement pursuant to section 28-311;
(i) Child enticement by means of an electronic communication device pursuant to section 28-320.02;
(j) Enticement by electronic communication device pursuant to section 28-833; or
(k) An attempt or conspiracy to commit an offense listed in subdivisions (1)(a) through (1)(j) of this section.
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(2) Unlawful use of the Internet by a prohibited sex offender is a Class I misdemeanor for a first offense. Any second or subsequent conviction under this section is a Class IIIA felony.
Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010).
Thus, for offenders who must register, but who have served their sentences and are no longer on probation, parole, or court-ordered supervision at the time these new laws become effective, they face onerous new restrictions on their daily lives. They are burdened with the obligation to consent to the search of any computer they possess; they are required to allow the installation of software and hardware monitoring equipment on computers they possess; and many of them are prohibited, upon pain of an additional prison sentence, from using social networking websites, instant messaging services, or chat room service. When these restrictions are coupled with the fact that all registrants are also required to report in person, sometimes more frequently than once a year, it is likely that Nebraska’s registration scheme, when applied retroactively to citizens who have completed their criminal sentences and who are no longer on probation, parole, or court-ordered supervision, violates the Ex Post Facto Clause of the Constitution. See Smith v. Doe, 538 U.S. at 101 (holding that Alaska registration scheme did not violate Ex Post Facto Clause because registrant was “free to . . . live . . . as other citizens, with no supervision”) (emphasis added). Put more simply, Nebraska has now retroactively imposed a probation-like regimen that is nearly identical to the supervised release orders I enter on a daily basis for federal criminal defendants who have committed “kiddie porn” crimes. In either context, those restrictions are clearly “punishment.”
To be clear, like the Attorney General of the United States, I do not equate the SORNA requirement that a registrant report in person (and provide a limited amount of information) as the equivalent of “supervision” within the meaning of Smith v. Doe. See National Guidelines, at 2008 WL 2594934, at *38046 (concluding that SORNA was consistent with Smith v. Doe). See also Pataki, 120 F.3d at 1284-85
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(registration provisions of New York’s sex offender registration law imposing duty to register in person every 90 days for minimum of ten years, did not inflict “punishment” within meaning of Ex Post Facto Clause). On the other hand, I do equate an in-person reporting requirement, when coupled with invasive consent to search, electronic monitoring, and Internet prohibition provisos, to be “supervision” within the meaning of Smith v. Doe.
So, here’s the point: It is probable that Plaintiffs will succeed on the merits of their Ex Post Facto Clause claim regarding these two amendments. In evaluating the validity of this conclusion, please observe that Nebraska was unable to give me any comparable legislation that had passed constitutional muster. Instead, Nebraska candidly conceded that the “consent to search” requirement violated the Fourth Amendment. (E.g., Filing 57 at CM/ECF p. 22 (“We begin by acknowledging that the consent to search of all computers or electronic communication devices that is required under LB 97 and LB 285 is likely not legally valid under the requirements of the Fourth Amendment, as applied to individuals no longer on parole, probation or court supervision.”).) That concession was compelled by Judge Hamilton’s thorough and thoughtful opinion in Doe v. Prosecutor, Marion County, Indiana, 566 F. Supp. 2d 862, 883 (S.D. Ind. 2008) (holding requirement in Indiana sex and violent offender registration statute that offenders not currently on parole or probation consent to warrantless searches of personal computers or devices with Internet capability at any time, or be subject to felony prosecution, violated Fourth Amendment and stating that Indiana’s legislature had “taken an unprecedented step in stripping plaintiffs of their right to be secure in their homes, ‘papers,’ and personal effects.”).
I should also add that there are serious First Amendment issues raised by Nebraska’s attempt to prohibit offenders from using Internet sites when those offenders have served their sentences and are no longer under criminal law supervision. See, e.g., Hobbs v. County of Westchester, No. 00Civ8170(JSM)(LMS),
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2002 WL 31873462, at *11-12 (S.D.N.Y. Dec. 23, 2002) (holding, on First Amendment grounds, that county could not prohibit an amateur clown, who had been convicted of misdemeanor sexual abuse of children many years earlier, from using public park to perform his amateur show absent a narrowly drawn regulation).10 For present purposes, nothing more need be written, and we can flesh out these First Amendment concerns later.
Having concluded that Plaintiffs are likely to prevail on their challenge to these two amendments under the Ex Post Facto Clause and the Fourth Amendment and that significant First Amendment concerns are evident, I also decide that the balance of the Dataphase factors predominates in Plaintiffs’ favor as well. The federal government and all the other states are apparently able to get along quite well without these unprecedented but profoundly problematic powers. That being the case, interim injunctive relief is not likely to work any cognizable harm to Nebraska or its citizenry.
III. Conclusion
The lawyers, particularly Mr. Dornan for Plaintiffs and Mr. Cookson for Nebraska, have done a wonderful job of presenting their respective positions in a thorough and understandable manner. In addition, they have been civil and professional, and that is always a plus. The foregoing said, we have been forced to
10Nebraska does not use the definition of “social networking site” found in 42 U.S.C. § 16915a(e)(1)(A)(ii), which includes a requirement that the site “offers a mechanism for communication with other users where such users are likely to include a substantial number of minors.” (Emphasis added.) Instead, Nebraska refers to any “social networking website . . . that allows a person who is less than eighteen years of age to access or use” the site. Neb. Rev. Stat. § 28-322.05. See also Neb. Rev. Stat. § 29-4001.01(13) (West, Operative January 1, 2010).
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do our work too rapidly. Under these circumstances, the possibility of error is great. I suppose that is why we call efforts like these preliminary.
A final observation is in order: I am not a fan of laws like this one. If I had my druthers, I would enjoin the entire law and not just the portions that are probably unconstitutional. I am pretty sure that this enactment will divert attention and money from policing the monsters11 (and God knows there are plenty of monsters out there). I also worry that this law will incite a virulent form of vigilantism against the hapless. But, my likes and dislikes don’t matter.
In a democracy, we have legislatures to make public policy choices, and a black robe does not legitimize nullification of those legislative decisions simply because I find them dumb or distasteful. On the contrary, “[i]f the people want to go to Hell, I will help them. It’s my job.”12 Let’s get at it!
IT IS ORDERED that the motion for a preliminary injunction (filing 4) is denied except as provided below:
1. Defendants are preliminarily enjoined from enforcing the following statutes against persons who have been convicted of sex offenses but who have completed their criminal sentences and who are not on
11Indeed, a former Douglas County Attorney (Mr. Dornan) and a former United States Attorney (Mr. Monaghan) appeared at the hearing to make just such an argument. They are serious thinkers who are not bleeding hearts. As an aside, I compliment them for taking this unpopular, but important, case.
12Oliver Wendell Holmes, Jr., quoted in Ronald K.L. Collins, As Justice Holmes said . . . Oliver Wendell Holmes Jr. on free speech & related matters: selected quotations, First Amendment Center (May 21, 2008) (letter to Harold Laski, May 13, 1919) at http://www.firstamendmentcenter.org/analysis.aspx?id=20074 (last accessed December 28, 2009).
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probation, parole, or court-ordered supervision, to wit: (1) Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010) (requiring consent to search and installation of monitoring hardware and software) and (2) Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010) (making it a crime to use Internet social networking sites accessible by minors by a person required to register under the Sex Offender Registration Act).

2. Within 10 days, Plaintiffs shall post a bond with the Clerk (cash or surety) in the sum of $500.

December 30, 2009.

BY THE COURT: Richard G. Kopf United States District Judge

*This opinion may contain hyperlinks to other documents or Websites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Websites. Likewise, the court has no agreements with any of these third parties or their Websites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

JOHN DOE and JANE DOE 1 through 20,

)

JOHN DOE and JANE DOE A through K,

)

DOE 12 on behalf of DOES H and K, minors, )

and DOE G on behalf of DOE 1, minor,

)

)

Plaintiffs,

)

)

V.

)

)

STATE OF NEBRASKA, et al.,

)

)

Defendants.

)

______________________________________ )

)

JOHN DOE,

)

)

Plaintiff,

)

)

V.

)

)

ATTORNEY GENERAL JON BRUNING, )

et al.,

)

)

Defendants.

)

______________________________________ )

)

JOHN DOE,

)

)

Plaintiff,

)

)

V.

)

)

NEBRASKA STATE PATROL, et al.,

)

)

Defendants.

)

______________________________________ )

8:09CV456 MEMORANDUM
AND ORDER
4:09CV3258 MEMORANDUM
AND ORDER
4:09CV3266 MEMORANDUM
AND ORDER

In 8:09CV456, the State of Nebraska filed a notice advising me that “duplicative actions [have been] filed in State Courts” and setting forth the following details:

1. Sarpy County District Court Case No. 09-2397 John Doe v. State of Nebraska, et al. Complaint filed December 31, 2009. Temporary Restraining Order granted on December 31, 2009. Order lifting Temporary Restraining Order and granting motion to stay proceedings pending affirmation the Plaintiffs are not parties in federal court case entered January 4, 2010.
2. Lancaster County District Court Case No. 09-5071 John Doe I, John Doe II, v. State of Nebraska, et al. Complaint filed December 31, 2009. Motion to stay proceedings pending determination by federal court denied January 5, 2010. Hearing on Temporary Injunction scheduled for January 7, 2010 at 2:30 p.m.
3. Lincoln County District Court Case No. 10-4 John Doe v. State of Nebraska, et al. Complaint filed January 4, 2010. Ex Parte Temporary Restraining Order entered January 4, 2010 enjoining the enforcement of LB 97 and LB 285. Hearing on Temporary Injunction scheduled for January 14, 2010 at 8:30 a.m.
(Filing 98 at CM/ECF p. 1.)
I herewith request that the courts of the State of Nebraska refrain from issuing any orders enjoining Nebraska’s Sex Offender Registration Act and related legislative bills while my cases are pending. First, I acquired jurisdiction over extremely broad federal and state law claims prior to any state court. Second, before any state court acted, I made a substantive ruling and that substantive ruling may be preclusive, thus justifying the issuance of an injunction against state judges from proceeding further. See, e.g., In re Baycol Products Litigation, —F.3d —, 2010 WL 10397 (8th Cir., Jan. 5, 2010) (affirming injunction against relitigating in state court certification decision regarding a class action). Third, even if an action is allegedly grounded solely on state law, there may be a federal question presented, justifying injunctive relief (or removal), inasmuch as the amendments attacked by the Plaintiffs bring Nebraska into compliance with federal law.
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These and other questions are very difficult. I desperately hope to avoid a dispute with the state courts, but if push comes to shove and Nebraska files an appropriate motion, I may step in and enjoin state judges from taking any further action in these matters. Since full and fair relief is available in this court, since this court was the first to acquire jurisdiction of similar, or perhaps even identical, state and federal claims, since important federal interests are at stake, and since the possibility of conflicting injunctions serves no one’s interests,

IT IS ORDERED that counsel for the State of Nebraska shall provide a copy of this memorandum and order to any state court judge considering whether to enjoin enforcement of the Nebraska Sex Offender Registration Act and LB 97 and LB 285. My chambers shall call Mr. Dornan, Mr. Beckman, and counsel for Nebraska and inform them of the entry of this memorandum and order.

DATED January 7, 2010.

BY THE COURT: Richard G. Kopf United States District Judge

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 8:09-cv-00456-RGK-CRZ Doc # 329 Filed: 03/15/10 Page 1 of 61 - Page ID # 2947

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K, Doe 12 on behalf of Does H and K, minors, and Doe G on behalf of Doe I, minor,
Plaintiffs,
vs.

8:09-cv-456
AMENDED 42 U.S.C. § 1983 COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF

State of Nebraska; Nebraska State Patrol;

CLAIM OF UNCONSTITUTIONALITY

Jon Bruning, Attorney General of Nebraska;

JURY TRIAL DEMANDED

Col. Bryan Tuma, Superintendent of Law Enforcement and Public Safety for the Nebraska State Patrol;

County Attorneys Donna Fegler Daiss (Adams), Michael Long (Antelope), Richard Roberts (Arthur), James L. Zimmerman (Banner), Glenn Clark (Blaine), John Morgan (Boone), Kathleen J. Hutchinson (Box Butte) Ashley Boettcher (Boyd), David M. Streich (Brown), Shawn R. Eatherton (Buffalo), Daniel A. Smith (Burt), Julie L. Reiter (Butler), Nathan Cox (Cass), George L. Hirschbach (Cedar), Arlan G. Wine (Chase), Eric Scott (Cherry), Paul B. Schaub (Cheyenne), Ted S. Griess (Clay), Francis D. Botelho (Colfax), Thomas B. Donner (Cuming), Tami Schendt (Custer), Kim W. Watson (Dakota), Vance Haug (Dawes), Elizabeth F. Waterman (Dawson), Douglas D. Palik (Deuel), Leland K. Miner (Dixon), Paul J. Vaughan (Dodge), Donald W. Kleine (Douglas), James D. Owens (Dundy), Jill R. Cunningham (Fillmore), Patrick A. Duncan (Franklin), Jon S. Schroeder (Frontier), Tom Patterson (Furnas), Randall Ritnour (Gage), Philip E. Pierce (Garden), Dale Crandall (Garfield), Todd D. Wilson (Gosper), A. James Moravek (Grant), James Swanson (Greeley), Mark Young (Hall), Michael H. Powell (Hamilton), Bryan S. McQuay (Harlan), Joel W. Phillips (Hayes), D. Eugene Garner (Hitchcock), Thomas P. Herzog (Holt), George G. Vinton (Hooker), David T. Schroeder (Howard), Linda A.

1

8:09-cv-00456-RGK-CRZ Doc # 329 Filed: 03/15/10 Page 2 of 61 - Page ID # 2948
Bauer (Jefferson), Julie Smith Hogancamp (Johnson), David G. Wondra (Kearney), Blake Edwards (Keith), Eric Scott (Keya Paha), David L. Wilson (Kimball), John Thomas (Knox), Gary Lacey (Lancaster), Rebecca R. Harling (Lincoln), Steve Vinton (Logan), Jason White (Loup), Joseph M. Smith (Madison), Tim Brouillette (McPherson), Steven M. Curry (Merrick), Jean Rhodes (Morrill), Rodney Wetovick (Nance), Louie M. Ligouri (Nemaha), Timothy S. Schmidt (Nuckolls), David J. Partsch (Otoe), Victor Faesser (Pawnee), Richard H. Roberts (Perkins), Timothy E. Hoeft (Phelps), Verlyn Luebbe (Pierce), Sandra J. Allen (Platte), Ronald E. Colling (Polk), Paul Wood (Red Willow), Douglas E. Merz (Richardson), Avery L. Gurnsey (Rock), Tad D. Eickman (Saline), Lee Polikov (Sarpy), Scott J. Tingelhoff (Saunders), Tiffany Wasserburger (Scottsbluff), Wendy L. Elston (Seward), Dennis King (Sheridan), Mark L. Eurek (Sherman), J. Adam Edmund (Sioux), W. Bert Lammli (Stanton), Daniel L. Werner (Thayer), Warren R. Arganbright (Thomas), Tammy Maul-Bodlak (Thurston), Glenn Clark (Valley), Shurie R. Graeve (Washington), Michael E. Pieper (Wayne), Jerry McDole (Webster), James J. McNally (Wheeler), Tim Sieh (York);
County Sheriffs Greg Magee (Adams), Darrell Hamilton (Antelope), Bill Simpson (Arthur), K. Patrick Mooney (Banner), Tim Sierks (Blaine), David Spiegel (Boone), Tammy Mowry (Box Butte), David Derickson (Boyd), Steve Hapner (Brown), Neil A. Miller (Buffalo), Robert Pickell (Burt), Mark Hecker (Butler), William Brueggeman (Cass), Larry Koranda (Cedar), Timothy Sutherland (Chase), Melvin Christensen (Cherry), Darrell Johnson (Cheyenne), Jeff Franklin (Clay), Paul J. Kruse (Colfax), Bradley Boyum (Cuming), Ted Henderson (Custer), James L. Wagner (Dakota), Karl Dailey (Dawes), Gary Reiber (Dawson), Jeffrey S. Ortgies (Deuel), Dean Chase (Dixon), Steve Hespen (Dodge), Timothy F. Dunning (Douglas), Robert S. McBride (Dundy), William Burgess (Fillmore), Jerry L. Archer (Franklin), Daniel Rupp (Frontier), Kurt Kapperman (Furnas), Millard “Gus” Gustafson (Gage), Doug Miller (Garden), Larry D. Donner (Garfield), Dennis Ocken (Gosper), Shawn Hebbert (Grant), David C. Weeks (Greeley), Jerry Watson (Hall), Kirk W Handrup (Hamilton), Chris Becker (Harlan), Thomas Dow (Hayes), Bryan Leggott (Hitchcock), Ben Matchett (Holt), Lynn
2

8:09-cv-00456-RGK-CRZ Doc # 329 Filed: 03/15/10 Page 3 of 61 - Page ID # 2949
Nichols (Hooker), Harold Schenck (Howard), Nels Sorensen (Jefferson), James P Wenzl (Johnson), Scott K. White (Kearney), Kevin Mueller (Keith), Jeff Kirsch (Keya Paha), Harry J. Gillway (Kimball), James F. Janecek (Knox), Terry Wagner (Lancaster), Jerome Kramer (Lincoln), Patrick McNeil (Logan), Kirby Holloway (Loup), Vern Hjorth (Madison), John Haller (McPherson), Anthony McPhillips (Merrick), John Edens (Morrill), Davis Moore (Nance), Brent Lottman (Nemaha), James R Marr (Nuckolls), James Gress (Otoe), Jayme Reed (Pawnee), James D. Brueggeman (Perkins), Tom Nutt (Phelps), Rick Eberhardt (Pierce), John Zavadil (Platte), Dwaine W. Ladwig (Polk), Gene Mahon (Red Willow), Vernon Buckminster (Richardson), Willis Haynes (Rock), Alan Moore (Saline), Jeff Davis (Sarpy), Kevin Stukenholtz (Saunders), Jim K. Lawson (Scotts Bluff), Joe Yocum (Seward), Terry Robbins (Sheridan), Michael F. Janulewicz (Sherman), William Roe (Sioux), Michael Unger (Stanton), David Lee (Thayer), Gary Eng (Thomas), Chris Kleinberg (Thurston), Casey D. Hurlburt (Valley), Michael Robinson (Washington), LeRoy W Janssen (Wayne), Troy Schmitz (Webster), Adrian Lindsey (Wheeler), Dale Radcliff (York);
Police Chiefs Thomas K. Casady (Lincoln), Alex Hayes (Omaha), Leonard Houloose (Papillion), Timothy S. Mullen (Fremont), Lester E. Johnson (Bennington), Ron Murtaugh (Ralston), William Gumm (Columbus), Donald Klug (York);
Defendants.
COME NOW the Plaintiffs, by and through their counsel of record, and hereby submit
their Amended Complaint for declaratory and injunctive relief. This amendment comports with
the stipulation entered between the parties (Filing #325) and Memorandum and Order entered by
the Court (Filing #328) which gave the Plaintiffs until this date to add parties and their
declarations. This action is brought pursuant to 42 U.S.C. § 1983 to challenge the
constitutionality of the Nebraska Sex Offender Registration Act, Neb. Rev. Stat. § 29-4001 et
seq., as modified by LB 97 and LB 285.
On May 20, 2009, Gov. David Heinemann signed LB 97 into law. It became effective as
3

8:09-cv-00456-RGK-CRZ Doc # 329 Filed: 03/15/10 Page 4 of 61 - Page ID # 2950
of May 21, 2009. It modified the then-existing version of the Nebraska Sex Offender Registration Act. On May 26, 2009, LB 285 was signed into law, but it will not take effect until January 1, 2010. LB 285 amended portions of LB 97, and further modified the Nebraska Sex Offender Registration Act. LB 285 also included the creation of a new crime, the unlawful use of the internet by a prohibited sex offender. These two bills together, along with the unchanged portions of the previous act, constitute the current version of the Nebraska Sex Offender Registration Act (hereafter the “New Act”).1
The New Act represents a significant departure from the previous sex offender registry, infringing on core constitutional rights guaranteed by the United States and Nebraska Constitutions, to wit: by imposing retroactive criminal punishment for past acts; by twice punishing a single offense; by imposing a cruel and unusual punishment; by permitting a continuous and unreasonable search and seize by law enforcement; by violating the right to due process; by violating the right to equal protection of the law and constituting special legislation; by violating the right to free speech; by substantially impairing the contractual plea agreements entered into by some Plaintiffs; and by violating the separation of powers mandated by the Nebraska Constitution.
JURISDICTION AND VENUE 1. Subject matter jurisdiction over the federal constitutional issues is proper in this Court
pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has supplemental subject matter jurisdiction over the state law issues pursuant to 28 U.S.C. § 1367. This Court has jurisdiction to order injunctive and declaratory relief pursuant to 28 U.S.C. § 2201 and 42 U.S.C. § 1983.
1 The specific statues that are challenged by Plaintiffs are: Neb. Rev. Stat. §§ 29-4001.01 through 4006, and 4009 through 4013 (now constituting an ex post facto statutory scheme); Neb. Rev. Stat. § 29-4006 (now permitting an unreasonable search and seizure by law enforcement); Neb. Rev. Stat. § 29-4009 and 4013 (now eliminating the individual assessment to determine the level of community notification and imposing website notification for all registrants); Neb. Rev. Stat. § 29-4001.01 (now providing for vague definitions used throughout rendering the New Act susceptible to arbitrary enforcement and noncompliance); Neb. Rev. Stat. § 28-322.05 (now criminalizing certain types of speech for some registrants and infringing on the right to association); Neb. Rev. Stat. §§ 29-4001.01 through 4006, and 4009 through 4013 (now constituting a modification of the terms and conditions of plea agreements and a violation of separation of powers).
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8:09-cv-00456-RGK-CRZ Doc # 329 Filed: 03/15/10 Page 5 of 61 - Page ID # 2951
2. Venue is proper in this Court pursuant to 28 U.S.C. § 1391. All parties reside in Nebraska. PARTIES
3. John Doe 1 resides in Douglas County, Nebraska. He was convicted of a sexual offense in 1996 and is currently not on the registry.
4. John Doe 2 resides in Douglas County, Nebraska. He was convicted of sexual offenses in 1999 and 2004 and is currently a Level II registered sex offender.
5. John Doe 3 is a resident of Douglas County, Nebraska. He was convicted of a sexual offense in 2001 and is currently a Level I registered sex offender.
6. John Doe 4 is a resident of Douglas County, Nebraska. He was convicted of a sexual offense in 2002 and is currently a Level II registered sex offender.
7. John Doe 5 is a resident of Stanton County, Nebraska. He was convicted of a sexual offense in 2000 and is currently a Level III registered sex offender.
8. John Doe 6 is a resident of Sarpy County, Nebraska. He was convicted of a sexual offense in 1999 and is currently a Level III registered sex offender.
9. John Doe 7 is a resident of Dodge County, Nebraska. He was convicted of a sexual offense in 2005 and is currently a Level I registered sex offender.
10. John Doe 8 is a resident of York County, Nebraska. He was convicted of a sexual offense in 1989 and is currently a Level III registered sex offender.
11. John Doe 9 is a resident of Douglas County, Nebraska. He was convicted of a sexual offense in 2005 and is currently a Level I registered sex offender.
12. Jane Doe 10 is a resident of Lancaster County, Nebraska. She was convicted of a sexual offense in 2004 and is currently a Level I registered sex offender.
13. John Doe 11 is a resident of Saunders County, Nebraska. He was convicted of a sexual offense in 2000 and is currently a Level I registered sex offender.
14. John Doe 12 is a resident of Douglas County, Nebraska. He was convicted of sexual offenses in 2001 and 2004 and is currently a Level II registered sex offender. He brings this action on his own behalf and on behalf of Jane Doe H and John Doe K as their
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8:09-cv-00456-RGK-CRZ Doc # 329 Filed: 03/15/10 Page 6 of 61 - Page ID # 2952
parent, guardian and next friend. 15. John Doe 13 is a resident of Polk County, Nebraska. He was convicted of a sexual
offense in 2005 and is currently a Level II registered sex offender. 16. John Doe 14 is a resident of Douglas County, Nebraska. He was convicted of a sexual
offense in 1994 and is currently a Level II registered sex offender. 17. John Doe 15 is a resident of Platte County, Nebraska. He was convicted of a sexual
offense in 1998 and is currently a Level III registered sex offender. 18. John Doe 16 is a resident of Douglas County, Nebraska. He was convicted of a sexual
offense in 2006 and is currently a Level II registered sex offender. 19. John Doe 17 is a resident of Lancaster County, Nebraska. He was convicted of a sexual
offense in 2004 and is currently a Level II registered sex offender. 20. John Doe 18 is a resident of Douglas County, Nebraska. He was convicted of a sexual
offense in 2001 and is currently a Level II registered sex offender. 21. John Doe 19 is a resident of Nebraska. He was convicted of a sexual offense in 2001 and
is currently a Level II registered sex offender. 22. John Doe 20 is a resident of Douglas County, Nebraska. He was convicted of a
nonsexual offense in 1994 and is currently a Level III registered sex offender. 23. John Doe 21 is a resident of Douglas County, Nebraska. He was convicted of a sexual
offense in 2006 and was a Level I registered sex offender on December 31, 2009. 24. John Doe 22 is a resident of Buffalo County, Nebraska. He was convicted of a sexual
offense in 2001 and was a Level II registered sex offender on December 31, 2009. 25. John Doe 23 is a resident of Douglas County, Nebraska. He was convicted of a sexual
offense in 2008 and was a Level I registered sex offender on December 31, 2009. 26. John Doe 24 is a resident of Lancaster County, Nebraska. He was convicted of a sexual
offense in 2006 and was a Level I registered sex offender on December 31, 2009. 27. John Doe 25 is a resident of Sarpy County, Nebraska. He was convicted of a sexual
offense in 2007 and was a Level II registered sex offender on December 31, 2009. 28. John Doe 26 is a resident of Sarpy County, Nebraska. He was convicted of a sexual
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offense in 2006 and was a Level II registered sex offender on December 31, 2009. 29. John Doe 27 is a resident of Douglas County, Nebraska. He was convicted of a sexual
offense in 2005 and was a Level II registered sex offender on December 31, 2009. 30. John Doe 28 is a resident of Lancaster County, Nebraska. He was convicted of a sexual
offense in 2006 and was a Level I registered sex offender on December 31, 2009. 31. John Doe 29 is a resident of Douglas County, Nebraska. He was convicted of a sexual
offense in 2005 and was a Level I registered sex offender on December 31, 2009. 32. John Doe 30 is a resident of Phelps County, Nebraska. He was convicted of a sexual
offense in 2002 and was a Level III registered sex offender on December 31, 2009. 33. John Doe 31 is a resident of Lancaster County, Nebraska. He was convicted of a sexual
offense in 1997 and was a Level I registered sex offender on December 31, 2009. 34. John Doe 32 is a resident of Douglas County, Nebraska. He was convicted of a sexual
offense in 1982 and was a Level I registered sex offender on December 31, 2009. 35. John Doe 33 is a resident of Lancaster County, Nebraska. He was convicted of a sexual
offense in 2007 and was a Level I registered sex offender on December 31, 2009. 36. John Doe 34 is a resident of Douglas County, Nebraska. He was convicted of a sexual
offense in 2004 and was a Level I registered sex offender on December 31, 2009. 37. John Doe 35 is a resident of Dawes County, Nebraska. He was convicted of sexual
molestation in 2005 and was a Level I registered sex offender on December 1, 2009. 38. John Doe 36 is a resident of Otoe County, Nebraska. He was convicted of a sexual
offense in 1994 and was a Level II registered sex offender on December 31, 2009. 39. Jane Doe A is a resident of York County, Nebraska. She is married to John Doe 8 and
resides with him in their marital home. 40. Jane Doe B is a resident of Douglas County, Nebraska. She is married to John Doe 16
and resides with him in the marital home. 41. John Doe C is a resident of Lancaster County, Nebraska. He is an attorney who employs
Jane Doe 10. 42. Jane Doe D is a resident of Stanton County, Nebraska. She is the mother of John Doe 5,
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and lives in the same residence as Doe 5. 43. John Doe E resides in Nebraska. He owns a business and employs Doe 12 as a computer
consultant for the database and website used by the business. 44. John Doe F is a resident of Lancaster County, Nebraska. He owns a computer/internet
conferencing company and employs Doe 17, his son. 45. Jane Doe G is a resident of Douglas County, Nebraska. She is married to and is business
partners with Doe 12. Doe G brings this action on her own behalf and on behalf of Jane Doe I as her parent, guardian and next friend. 46. Jane Doe H is a resident of Douglas County, Nebraska and the minor daughter of Doe 12. Doe H visits Doe 12 at his residence regularly, and he visits and conducts business in the home in which she resides. 47. Jane Doe I is a resident of Douglas County, Nebraska and the minor daughter of Doe G. Doe I visits Doe 12 at his residence regularly, and he visits and conducts business in the home in which she resides. 48. John Doe J is a resident of Douglas County, Nebraska and the son of Doe 12. Doe J visits Doe 12 at his residence regularly, and Doe 12 visits and conducts business in the home in which Doe J resides. 49. John Doe K is a resident of Douglas County, Nebraska and the minor son of Doe 12. Doe K visits Doe 12 at his residence regularly, and Doe 12 visits and conducts business in the home in which Doe K resides. 50. Defendant State of Nebraska is a sovereign, independent state of the United States of America. 51. Defendant Nebraska State Patrol is an agency of the State of Nebraska. It is responsible for the enforcement of criminal and motor vehicle laws within the state, and it is responsible for the administration of the sex offender registry and community notification in Nebraska. 52. Defendant Jon Bruning, Attorney General of Nebraska, is the authorized legal representative for the State of Nebraska and is responsible for the enforcement of laws
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and prosecution of crimes throughout the State. He is sued in his official capacity. 53. Defendant Col. Bryan Tuma is Superintendent of Law Enforcement and Public Safety for
the Nebraska State Patrol. He is sued in his official capacity. 54. Defendants Donna Fegler Daiss (Adams), Michael Long (Antelope), Richard Roberts
(Arthur), James L. Zimmerman (Banner), Glenn Clark (Blaine), John Morgan (Boone), Kathleen J. Hutchinson (Box Butte), Ashley Boettcher (Boyd), David M. Streich (Brown), Shawn R. Eatherton (Buffalo), Daniel A. Smith (Burt), Julie L. Reiter (Butler), Nathan Cox (Cass), George L. Hirschbach (Cedar), Arlan G. Wine (Chase), Eric Scott (Cherry), Paul B. Schaub (Cheyenne), Ted S. Griess (Clay), Francis D. Botelho (Colfax), Thomas B. Donner (Cuming), Tami Schendt (Custer), Kim W. Watson (Dakota), Vance Haug (Dawes), Elizabeth F. Waterman (Dawson), Douglas D. Palik (Deuel), Leland K. Miner (Dixon), Paul J. Vaughan (Dodge), Donald W. Kleine (Douglas), James D. Owens (Dundy), Jill R. Cunningham (Fillmore), Patrick A. Duncan (Franklin), Jon S. Schroeder (Frontier), Tom Patterson (Furnas), Randall Ritnour (Gage), Philip E. Pierce (Garden), Dale Crandall (Garfield), Todd D. Wilson (Gosper), A. James Moravek (Grant), James Swanson (Greeley), Mark Young (Hall), Michael H. Powell (Hamilton), Bryan S. McQuay (Harlan), Joel W. Phillips (Hayes), D. Eugene Garner (Hitchcock), Thomas P. Herzog (Holt), George G. Vinton (Hooker), David T. Schroeder (Howard), Linda A. Bauer (Jefferson), Julie Smith Hogancamp (Johnson), David G. Wondra (Kearney), Blake Edwards (Keith), Eric Scott (Keya Paha), David L. Wilson (Kimball), John Thomas (Knox), Gary Lacey (Lancaster), Rebecca R. Harling (Lincoln), Steve Vinton (Logan), Jason White (Loup), Joseph M. Smith (Madison), Tim Brouillette (McPherson), Steven M. Curry (Merrick), Jean Rhodes (Morrill), Rodney Wetovick (Nance), Louie M. Ligouri (Nemaha), Timothy S. Schmidt (Nuckolls), David J. Partsch (Otoe), Victor Faesser (Pawnee), Richard H. Roberts (Perkins), Timothy E. Hoeft (Phelps), Verlyn Luebbe (Pierce), Sandra J. Allen (Platte), Ronald E. Colling (Polk), Paul Wood (Red Willow), Douglas E. Merz (Richardson), Avery L. Gurnsey (Rock), Tad D. Eickman (Saline), Lee Polikov (Sarpy), Scott J. Tingelhoff (Saunders), Tiffany Wasserburger
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(Scottsbluff), Wendy L. Elston (Seward), Dennis King (Sheridan), Mark L. Eurek (Sherman), J. Adam Edmund (Sioux), W. Bert Lammli (Stanton), Daniel L. Werner (Thayer), Warren R. Arganbright (Thomas), Tammy Maul-Bodlak (Thurston), Glenn Clark (Valley), Shurie R. Graeve (Washington), Michael E. Pieper (Wayne), Jerry McDole (Webster), James J. McNally (Wheeler), Tim Sieh (York) are the County Attorneys for the 93 counties in Nebraska, responsible for the prosecution of crimes in their respective counties, hereafter referred to as “County Attorneys.” Each County Attorney is sued in his or her official capacity. 55. Pursuant to Neb. Rev. Stat. § 29-4011(3), any law enforcement agency with jurisdiction over the area where a registrant resides, has a temporary domicile or habitual living location, is employed, carries on a vocation, or attends school is responsible for the enforcement of and investigation into violations of the Sex Offender Registry Act. 56. Defendants Greg Magee (Adams), Darrell Hamilton (Antelope), Bill Simpson (Arthur), K. Patrick Mooney (Banner), Tim Sierks (Blaine), David Spiegel (Boone), Tammy Mowry (Box Butte), David Derickson (Boyd), Steve Hapner (Brown), Neil A. Miller (Buffalo), Robert Pickell (Burt), Mark Hecker (Butler), William Brueggeman (Cass), Larry Koranda (Cedar), Timothy Sutherland (Chase), Melvin Christensen (Cherry), Darrell Johnson (Cheyenne), Jeff Franklin (Clay), Paul J. Kruse (Colfax), Bradley Boyum (Cuming), Ted Henderson (Custer), James L. Wagner (Dakota), Karl Dailey (Dawes), Gary Reiber (Dawson), Jeffrey S. Ortgies (Deuel), Dean Chase (Dixon), Steve Hespen (Dodge), Timothy F. Dunning (Douglas), Robert S. McBride (Dundy), William Burgess (Fillmore), Jerry L. Archer (Franklin), Daniel Rupp (Frontier), Kurt Kapperman (Furnas), Millard “Gus” Gustafson (Gage), Doug Miller (Garden), Larry D. Donner (Garfield), Dennis Ocken (Gosper), Shawn Hebbert (Grant), David C. Weeks (Greeley), Jerry Watson (Hall), Kirk W Handrup (Hamilton), Chris Becker (Harlan), Thomas Dow (Hayes), Bryan Leggott (Hitchcock), Ben Matchett (Holt), Lynn Nichols (Hooker), Harold Schenck (Howard), Nels Sorensen (Jefferson), James P Wenzl (Johnson), Scott K. White (Kearney), Kevin Mueller (Keith), Jeff Kirsch (Keya Paha), Harry J. Gillway
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(Kimball), James F. Janecek (Knox), Terry Wagner (Lancaster), Jerome Kramer (Lincoln), Patrick McNeil (Logan), Kirby Holloway (Loup), Vern Hjorth (Madison), John Haller (McPherson), Anthony McPhillips (Merrick), John Edens (Morrill), Davis Moore (Nance), Brent Lottman (Nemaha), James R Marr (Nuckolls), James Gress (Otoe), Jayme Reed (Pawnee), James D. Brueggeman (Perkins), Tom Nutt (Phelps), Rick Eberhardt (Pierce), John Zavadil (Platte), Dwaine W. Ladwig (Polk), Gene Mahon (Red Willow), Vernon Buckminster (Richardson), Willis Haynes (Rock), Alan Moore (Saline), Jeff Davis (Sarpy), Kevin Stukenholtz (Saunders), Jim K. Lawson (Scotts Bluff), Joe Yocum (Seward), Terry Robbins (Sheridan), Michael F. Janulewicz (Sherman), William Roe (Sioux), Michael Unger (Stanton), David Lee (Thayer), Gary Eng (Thomas), Chris Kleinberg (Thurston), Casey D. Hurlburt (Valley), Michael Robinson (Washington), LeRoy W Janssen (Wayne), Troy Schmitz (Webster), Adrian Lindsey (Wheeler), Dale Radcliff (York), are the County Sheriffs of their respective counties in Nebraska (hereafter referred to as “Sheriffs”). Each Sheriff is sued in his or her official capacity. 57. Defendants Thomas K. Casady (Lincoln), Alex Hayes (Omaha), Leonard Houloose (Papillion), Timothy S. Mullen (Fremont), Lester E. Johnson (Bennington), Ron Murtaugh (Ralston), William Gumm (Columbus), Donald Klug (York) are the Police Chiefs of their respective cities (hereafter referred to as “Police Chiefs”). Each Police Chief is sued in his or her official capacity. SUMMARY OF THE NEBRASKA SEX OFFENDER REGISTRATION LAW Broadened Applicability of the New Act - Neb. Rev. Stat. § 29-4003 58. Pursuant to Neb. Rev. Stat. § 29-4003(1)(a), the New Act applies to any individual who, on or after January 1, 1997: a. Has ever pled guilty to, nolo contendere to, or been found guilty of any of the
enumerated sexual and nonsexual offenses under Nebraska law; b. Has ever pled guilty to, pled nolo contendere to, or been found guilty of any offense
that is substantially equivalent to a registrable offense by any other jurisdiction; c. Is incarcerated, in a public or private institution, or on probation or parole for
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pleading guilty to or being found guilty of a registrable offense prior to January 1, 1997; or d. Enters the state and is required to register as a sex offender under the laws of another jurisdiction of the United States. 59. In addition, Neb. Rev. Stat. § 29-4003(1)(b) states that the New Act applies to any individual who, on or after January 1, 2010: a. Has ever pled guilty to, pled nolo contendere to, or been found guilty of various degrees of murder, manslaughter, various degrees of assault, stalking, unlawful intrusion on a minor, kidnapping, false imprisonment, or attempt, solicitation, aiding or abetting, being an accessory, or conspiracy to commit any of these offenses, when a court finds evidence of sexual contact or penetration in the record; b. Has ever pled guilty to, pled nolo contendere to, or been found guilty of various degrees of sexual abuse of an inmate or parolee, sexual abuse of a protected individual, incest, child abuse with a sexual component, enticement by electronic communication device, or attempt, solicitation, aiding or abetting, being an accessory, or conspiracy to commit an offense listed; c. Has ever pled guilty to, pled nolo contendere to, or been found guilty in another jurisdiction of an offense that is substantially equivalent to those listed above; or d. Enters the state and is required to register as a sex offender under the laws of another jurisdiction of the United States. 60. Prior to the modifications made by LB 97 and LB 285, the sentencing court had limited discretion to determine that the Act did not apply. When the charged offense was kidnapping, false imprisonment of a minor, or debauching a minor, the sentencing court could examine mitigating circumstances and determine that, in light of all the facts, the offense was committed without a sexual element. This was an effective means by which a sentencing court could ensure that the Act was applied only in appropriate cases. 61. The New Act eliminates this discretion. Now, the sentencing court does not have the ability to review the facts of each case to determine that the offense committed does not
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justify application of the New Act.2 62. In addition, the New Act’s inclusion and repeated use of the term “ever” is vague and
susceptible to arbitrary enforcement. Registration and In-person Reporting - Neb. Rev. Stat. § 29-4004 63. Neb. Rev. Stat. § 29-4004(2) requires a subject individual to inform the sheriff of the
county in which he or she resides in person if he or she has a new address, temporary domicile, or habitual living location, within three working days before the change.3 This reporting must be done in-person, and the registrant must also complete a form prescribed by the State Patrol for such purpose. 64. Neb. Rev. Stat. § 29-4004(3) requires a subject individual to inform the sheriff of the county in which he or she resides in person if he or she has a new address, temporary domicile, or habitual living location in a different county in this state within three working days before the address change, and to register with the county sheriff of his or her new residence within three working days after the address change. Neb. Rev. Stat. § 29-4004(4) provides for the substantially same procedure if an individual is moving outof-state. This reporting must be done in-person, and the registrant must also complete a form prescribed by the State Patrol for such purpose. 65. The remaining subsections of Neb. Rev. Stat. § 29-4004 impose similar notification requirements on the subject person relating to education, employment, vocations, subsequent incarceration, and loss of address, temporary domicile, or habitual living location. Again, the registrant must report in-person and he or she must also complete a form for that purpose. 66. Because the definitions added by LB 97 and augmented by LB 285 are so vague and confusing, the New Act is virtually impossible to comply with as it relates to the
2 For example, an individual convicted of false imprisonment under Neb. Rev. Stat. § 28-315, a misdemeanor that does not contain a sexual element, will be subject to the registration and public notification requirements. 3 This subsection in the prior Act clearly applied to intra-county moves only, but that language was eliminated under the New Act. Apparently, this subsection now merely restates the requirement to inform the sheriff of any move, even though that requirement is restated in other subsections as well, thereby reinforcing the vagueness of the New Act.
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registration requirements for individuals subject to the Act. 67. “Temporary domicile” is defined as any place at which the person actually lives or stays
for a period of at least three working days. “Habitual living location” is defined as any place that an offender may stay for a period of more than three days even though the sex offender maintains a separate permanent address or temporary domicile. 68. First, the unclear definition of temporary domicile, coupled with the reporting requirement, renders the statute impossible to comply with. The New Act requires a registrant to inform the sheriff in the county where he or she resides before the person actually lives or stays in another place for at least three working days. Only a soothsayer could predict how long certain out-of-county trips will take, but the Act imposes such an affirmative obligation on each registrant. In addition, the New Act fails to define “working days,” leaving the entire reporting structure open to interpretation and arbitrary enforcement. 69. Second, the unclear definition of habitual living location, coupled with the reporting requirement, renders the statute confusing and impossible to comply with. A habitual living location includes anywhere a registrant may stay for a period of more than three days, which includes virtually any habitual location on the planet that would permit a registrant to stay.4 The definition is also confusing because a habitual living location is measured in only “days,” not “working days” as used throughout the rest of the New Act. Adding to the confusion is the fact that, although a habitual living location is measured only in days, the time period in which to report a new habitual living location to law enforcement is still measured in “working days.” Regardless, the entire reporting scheme remains unclear and confusing because, again, the Act fails to define “working days.” 70. In addition to being vague, confusing, and susceptible to arbitrary enforcement, the inperson reporting requirements impose a significant burden on travel within the state and without.
4 Although this may seem like hyperbole, the New Act literally requires a registrant to inform law enforcement of virtually every address in the county, state, nation, and planet that would permit him or her to stay for three days.
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Registration Duration - Neb. Rev. Stat. § 29-4005 71. Under the prior Act, the registration period was ten years following discharge from
probation, parole, supervised release, or from incarceration. An individual who committed an aggravated offense, had a prior conviction for a registrable offense, was required to register for life in another jurisdiction, or who was determined to be a sexually violent predator was required to register for life. 72. Some Does were subject to the ten-year registration requirement at the time they entered into their respective plea agreements. When entering their pleas, they reasonably relied on the fact that they would be subject to the registry for a period of ten years. 73. Under the New Act, Neb. Rev. Stat. § 29-4005 now states that the registration period is determined based solely on the possible punishment for the underlying conviction, to wit: a. Fifteen years, if the registrable offense carried a maximum punishment of
imprisonment of one year or less; b. Twenty five years, if the registrable offense carried a maximum punishment of
imprisonment of more than one year; and c. Life, if the registrable offense carried a maximum punishment of imprisonment of
more than one year, and the registrant was convicted of an aggravated offense or had a prior sex offense conviction or has been determined to be a lifetime registrant in another jurisdiction. 74. This new term of registration materially modifies the law in effect at the time said Does entered into their plea agreements. 75. The extension of the registration period under the New Act past ten years and the lengthy duration for which a registrant is subject to the New Act constitute an additional punishment for a single offense. Registrable Data and Law Enforcement Searches - Neb. Rev. Stat. § 29-4006 76. The New Act drastically expands the amount and type of information that law enforcement is required to obtain from a registrant. In fact, the law expands the
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information to include data and information of family members, employers, and others that have not been convicted of a registrable offense. 77. Neb. Rev. Stat. § 29-4006 states that registration information shall include, but not be limited to,5 such general information as name, aliases, birthday, social security numbers, etc. However, the information also includes: a. The address of each residence at which the person resides, has a temporary domicile,
has a habitual living location, or will reside;6 b. The name and address of any place where the person is an employee or student or
will be an employee or student, including work locations without a single worksite;7 c. The license plate number and a description of any vehicle owned or operated by the
person, and its regular storage location8; d. The person's motor vehicle operator's license number; e. The person's original travel and immigration documents, professional licenses or
certificates, valid motor vehicle operator's license, or state identification card submitted for photocopying; f. The person's telephone numbers; and g. A physical description of the person, including current photograph. 78. The New Act provides unprecedented and unlimited access inside a registrant’s home and personal property. The New Act requires the State Patrol to collect the following information: a. All remote communication device identifiers and addresses, including, but not limited to, all global unique identifiers, serial numbers, Internet protocol addresses,
5 This clause permits virtually an unlimited amount of information to be collected by the State Patrol, regardless of the type or subject, thereby again rendering the New Act subject to arbitrary and capricious enforcement at the hands of law enforcement. 6 The vague definitions of “temporary domicile” and “habitual living location” again render compliance with this subsection impossible. 7 The New Act again imposes an affirmative obligation to report information that a registrant will simply not know, such as future residences, future employment, and future education. 8 The term “vehicle” is not defined, but presumably means all motor operated equipment such as cars, boats, RV’s, four-wheelers, snowmobiles, tractors, etc. The requirement that all “vehicles” that the registrant “operates” includes vehicles owned by someone other than the registrant.
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phone numbers, and account numbers specific to the device; and b. All email addresses, instant messaging identifiers, chat room identifiers, global
unique identifiers, and other Internet communication identifiers that the person uses or plans to use, all domain names registered by the registrant, and all blogs and Internet sites maintained by the person or to which the person has uploaded any content or posted any messages or information. 79. While Neb. Rev. Stat. § 29-4001.01 provides some definitions, it fails to defined key terms such as “remote communication device,”9 “identifiers and addresses,” “global unique identifiers,” and “other Internet communication identifiers” thereby adding to the vagueness of the New Act and how it will be enforced. 80. A registrant must provide law enforcement with email addresses, instant messaging identifiers, chat room identifiers, global unique identifiers, and other Internet communication identifiers that the person uses or plans to use. The Act also imposes an affirmative obligation to provide law enforcement with a list of all blogs and Internet sites maintained by the person or to which the person has uploaded any content or posted any messages or information. Not only is this burdensome on the registrants, but it creates a prohibition on their right to engage in first amendment activity free from government monitoring since it requires them to provide a list of all blogs and internet sites to which the registrant posts any messages, content, or information.10 81. Neb. Rev. Stat. § 29-4006(13) imposes an affirmative obligation to provide law enforcement with any changes to this list of blogs and Internet sites by the following “working day.” 82. But the New Act goes far beyond merely collecting this information from a registrant. When the registrant provides law enforcement with this information, the New Act
9 Although not defined, presumably this might mean all computers, cell phones, personal data assistants, gaming systems with communication capability (such as Gameboys), bullhorns, walkie talkies, tin cans connected via string, etc. 10 This includes job search sites, eBay, postboards, Amazon, requesting email updates from WhiteHouse.gov, completing the Nebraska Attorney General’s Consumer Complaint satisfaction survey, etc. Basically, nearly every website requires cookies when accessing, and nearly all commonly-used sites fall within this category.
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cryptically mandates that the registrant sign a consent form giving law enforcement the ability to search all computers or other electronic communication devices possessed by the person. 83. This consent form also gives law enforcement the ability to install hardware or software to monitor the person's Internet usage on all computers or electronic communication devices possessed by the person. 84. Requiring that registrants give their consent to search the computers or electronic communication devices possessed by the person, under pain of criminal prosecution pursuant to Neb. Rev. Stat. § 29-4001, amounts to invalid, coerced consent. 85. The New Act also infringes on the privacy of the registrant’s family, roommates, employers, etc. By coercing a registrant to give “consent” to search all computers or electronic communication devices “possessed” by the registrant, the New Act includes those devices over which the registrant asserts possession or constructive possession regardless of actual ownership. Without limitation, this necessarily includes electronic communication devices and computers of the family, roommates, employer, coworkers, friends, etc. 86. Not only are computers and electronic communication devices subject to search, the New Act also gives law enforcement the apparent ability to install hardware or software on all computers and electronic communication devices to monitor Internet usage. This constitutes an ongoing search and seizure by law enforcement of property possessed by the registrant.11 87. With law enforcement constantly looking over a registrant’s shoulder, including peering into the devices of his or her family, employer, etc., the New Act constitutes an unreasonable search and seizure, without probable cause, warrant, or valid consent, which deters and chills free speech in derogation of the United States and Nebraska
11 Because a registrant must give consent to monitor the electronic communication devices within his or her possession, law enforcement presumably has the authority to prohibit the registrant from possessing those electronic communication devices not susceptible to monitoring, such as nearly all cell phones. Again, the New Act is unclear and open to arbitrary and capricious enforcement.
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Frequency of Information Verification - Neb. Rev. Stat. § 29-4006(4)-(6) 88. Registrants are required to report periodically to verify the information on the registry as
correct and current. This verification must be done in person at the sheriff’s office in the county in which he or she resides, has a temporary domicile, or is habitually living. 89. A fifteen year registrant shall report once per year in their birth month. 90. A twenty-five year registrant shall report every six months: the birth month and in the sixth month following the month of his or her birth. 91. A lifetime registrant shall report every three months to the office of the sheriff of the county in which he or she resides: in their birth month and every three months following the month of his or her birth. 92. If the person required to register under the act fails to report in person, the person shall be in violation of the Act, again under pain of criminal prosecution. 93. Although in-person verification occurs per the above schedule, any changes in a registrant’s email addresses, instant messaging identifiers, chat room identifiers, global unique identifiers, and other Internet communication identifiers that the registrant uses or plans to use, all domain names registered by the person, and all blogs and Internet web sites maintained by the person or to which the person has uploaded any content or posted any messages or information, must be provided to law enforcement by the next working day. Criminalization of Certain Communication - Neb. Rev. Stat. § 28-322.05 94. The New Act criminalizes some speech for some registrants, thereby constituting an unconstitutional prior restraint on speech. 95. Neb. Rev. Stat. § 28-322.05 only applies to registrants convicted of one of the enumerated offenses committed against minors, including kidnapping, sexual assault, incest, pandering, visual depiction of sexually explicit conduct of a child, possessing any visual depiction of sexually explicit conduct, criminal child enticement, child enticement by means of an electronic communication device, enticement by electronic communication device, or attempt or conspiracy to commit any of these offenses.
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96. A registrant convicted of one or more of these offenses, or an equivalent offense committed in another jurisdiction, commits the crime of Unlawful use of the internet by a prohibited sex offender when he or she knowingly and intentionally uses a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use its social networking web site, instant messaging, or chat room service.
97. This section is vague, ambiguous, and constitutes an unconstitutional restraint on speech and free association.
98. First, the terms “social networking web site,” “instant messaging,” or “chat room service” are not defined,12 rendering the statute open to interpretation and susceptible to capricious enforcement.
99. Next, even if a definition for these terms could be imputed into the statute, the list of prohibited internet sites is so vast that the New Act virtually renders the internet unusable by a registrant subject to this additional punishment.13
100. This prohibition against speech applies regardless of whether use of a social networking web site, instant messaging, or chat room was an element of the underlying offense or whether it was an instrumentality used during commission of the registrant’s underlying act.
101. Unlawful use of the internet by a prohibited sex offender is a misdemeanor for a first offense, and a felony for any subsequent offense.14 This constitutes a prior restraint on speech in derogation of the United States and Nebraska Constitutions.
12 The terms “social networking web site,” “instant messaging,” and “chat room” are defined in the Nebraska Sex Offender Registration Act, which is found in Chapter 29 (Criminal Procedure) of the Nebraska Revised Statutes. However, the crime of Unlawful use of the internet by a prohibited sex offender is found in Chapter 28 (Crimes and Punishment) of the Nebraska Revised Statutes. Adding to the confusion is the fact that the term “social networking web site,” while defined in the New Act, is not used anywhere in the Act itself and is only found in Chapter 28 as an element of Unlawful use of the internet by a prohibited sex offender. Obviously, the Legislature considered the New Act and the new crime as in pari materia when drafting, clearly showing a punitive intent on the part of the Legislature. 13 For example, a registrant subject to this additional punishment would be prohibited from using eBay, educational tools such as Blackboard, YouTube, Amazon, Yahoo, ESPN.com, CNN.com, etc. 14 For example, a registrant would commit a misdemeanor by bidding on an item listed on eBay, and possibly be guilty of a felony when she later checked to determine if she submitted the winning bid.
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Public Dissemination of Information - Neb. Rev. Stat. §§ 29-4009 and 4013 102. Prior to enactment of LB’s 97 and 285, all registration information gathered by law
enforcement was presumed to be confidential unless specifically exempted. Not all registrants were subject to community notification via the State Patrol website. Instead, the prior Act required the State Patrol to examine the individual registrant’s conditions of release, physical conditions such as age or illness, criminal history, and other factors to determine the risk of recidivism and commensurate level of public notification. 103. This examination resulted in a three-tiered approach to public notification. If an individual was a low risk to reoffend (Level I), only law enforcement agencies were provided with the person’s registry information. If the risk was moderate (Level II), law enforcement, schools, day cares, health care facilities for children and vulnerable adults, and religious and youth organizations were notified. Only if the risk of recidivism was determined to be high (Level III) was the individual subject to community-wide notification via the State Patrol website. 104. The tiered system allows for information to be disseminated to those groups with a real interest in being alerted to low and moderate risk individuals, while still providing for public notification when an individual poses a high risk to the community at-large. 105. A registrant is only subject to public notification and scrutiny upon an individualized determination that he or she posed a high risk to recidivate, and such determination is reviewable through the Nebraska Administrative Procedures Act. Tiered system aside, Neb. Rev. Stat. § 29-4013(3) permits law enforcement to notify the public when an individual posed a danger under circumstances not provided for by the Act. 106. The tiered system prevents dilution of registrant information through “sex offender overload” so that the public is notified of only those individuals that pose the most serious risks. The New Act is a material deviation from this approach, resulting in a dilution of information that provides little to no real useful or actionable information to the public.
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107. Neb. Rev. Stat. § 29-4009(1) now presumes all information gathered for the registry is not confidential, with limited exception. This section, along with Neb. Rev. Stat. § 294013(b), requires community notification for all individuals subject to the registry, not just those individuals determined to be a high risk to reoffend. This includes those registrants previously determined to be low-risk.
108. Under the New Act, all individuals subject to registration will also be subject to public notification via the State Patrol’s sex offender website, regardless of the circumstances of the offense, mitigating factors, or the individual’s risk of recidivism.
109. The New Act authorizes the State Patrol to share public notification information with a number of organizations, including social service entities that protect children, volunteer organizations, public and private agencies conducting employment background checks, public housing agencies, and health care providers conducting background checks. There is no limit on or regulation over the dissemination of information under this provision.
110. The New Act also eliminates a hearing before the State Patrol by which an individual can provide evidence as to his risk of recidivism. Previously, Neb. Rev. Stat. § 29-4013 prescribed such a procedure and the factors the Patrol must consider.
111. The New Act requires the State Patrol to adopt agency rules and regulations to implement the release of registry information. To date, no agency rule has been promulgated stating if there will be a procedure to challenge one’s status as a registrant, although letters from the State Patrol have been sent notifying registrants of their new obligations under the Act.
112. The elimination of a meaningful opportunity to present evidence before a neutral decision maker as to the necessity of community-wide, and practically speaking international, notification constitutes a violation of due process.
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IMPACT OF THE NEW ACT ON THE PLAINTIFFS 113. John Doe 1 resides in Douglas County, Nebraska. Doe 1 was convicted in 1996 in
Lancaster County District Court for sexual assault of a child. He was 19 years old at the time, and had a consensual relationship with his fifteen year old girlfriend. He was sentenced to three years of probation, and ordered to pay restitution. Doe 1 completed all his probation requirements and was discharged from probation in September, 1999. Upon completing probation in 1999, Doe 1 was classified as a Level III registrant subject to public notification. Due to the public notification, Doe 1 and his family were subject to public retribution as vandals on one occasion threw a chunk of concrete through a window of the family home. Someone also handed out fliers with his information to local businesses and schools. In 2003, Doe 1 successfully challenged his classification and was re-classified to Level II, thus removing him from community notification. He was taken off the registry in September 2009, and has had no obligation to register since. He has worked for a car dealer in the area since 2004, but his employer does not know of his conviction. Pursuant to his duties at the dealership, he operates, details and prepares vehicles for customers. He has no idea how he will possibly stay complaint with the New Act as most of the cars he operates have not received a license plate since they have not yet been purchased, and the storage location for each vehicle changes when purchased or sent to another dealer for reasons not within his control. Doe 1 uses his internet enabled home computer and cell phone extensively to pursue his hobby and interest in classic cars and to communicate with family members via the Internet. Under the New Act, he will be prohibited from using the sites he uses to stay in touch. His cell phone is capable of accessing the internet. Under the New Act he has reason to believe he will have to get rid of his phone or allow the State Patrol to install monitoring software on it. He has family that lives out of state and would be required to notify the State Patrol each time he visited them for more than three days. Although he has not had any registration requirements for a period of time, the New Act will not only put him back on the registry, but will place his name on the State Patrol website for approximately the next fifteen
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years. He will also be forced to report in person to the sheriff every six months during that time. All of these requirements plus his past experience cause him great anxiety and worry for both his personal safety and future employment. If he would have known that the State would later change the terms of his requirements under the registry he would not have entered into his original plea agreement. 114. John Doe 2 resides in Douglas County, Nebraska with his wife and children. Pursuant to plea agreements Doe 2 has twice been convicted of possession of child pornography. He was not sentenced to any jail time and has successfully completed his probation. In 2008 he requested a review of his Level II status, and has been informed that because of the New Act, his case is still pending. Under the New Act he will be a lifetime registrant. Through his employment as a network administrator, he uses many types of electronic communication devices and computers. He uses email and web based peer to peer communication software extensively at work. Even if Doe 2’s employer does not fire him when they find out he is a registered sex offender, he fears he cannot possibly stay compliant with all of the notification requirements given his constant and extensive use of electronic communication devices. He has been married to his wife for twenty years, and has children who are in high school. He and his wife previously lost their jobs because of the convictions, and he is scared that further community notification will impair his current and future employability. 115. John Doe 3 is a resident of Douglas County, Nebraska. In 2004, he pled guilty to conspiracy to commit sexual assault and is currently a Level I registrant. At the time, he lost his job in the mortgage industry, and now is forced to work from home. He is greatly reliant on the internet for work, but may be prevented from continuing his occupation because of the new crime “Use of the Internet by a Prohibited Sex Offender”. He is married and has two children that live with him, and he is worried about his wife’s continued ability to keep her job and the impact the new law will have on his children. Doe 3 owns a cell phone and computer at his home. Had he known the law at the time he entered into his plea agreement would be retroactively changed, he would not have
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entered into it. 116. John Doe 4 is a resident of Douglas County, Nebraska. Doe 4 entered into a plea
agreement and was convicted of first degree sexual assault of a child in April, 2002. He was sentenced to 180 days incarceration and was required to register as a sex offender. Since his release from incarceration Doe 4 has been and remains a Level II registrant and is subject to the registry for a period of 10 years. He is a handyman and worried that people will not hire him if he is subject to public notification. He lives in a home with his wife and two roommates who all have access to and use a computer. Doe 4 will be a 25 year registrant under the New Act. 117. John Doe 5 is a resident of Stanton County, Nebraska. In 2000, he pled guilty to first degree sexual assault, and is currently a Level III registrant. He has joint custody of his two children from a previous marriage. He owns a cell phone that is internet capable. Under the New Act he has reason to believe he will have to get rid of his phone or allow the State Patrol to install monitoring software on it. He currently lives with his mother, and she has a computer in the home that he does not use. Regardless, this computer is within his “possession” and will be subject to search and constant monitoring by the State Patrol. He works with computers at his job, and is terrified that his employer will fire him because of law enforcements ability to search, seize and monitor. He is confused about the reporting implications of the New Act, and is unsure how or if he is able to take a family cruise. 118. John Doe 6 is a resident of Sarpy County, Nebraska. He pled guilty to sexual assault of a child in 2000, and is currently a Level III registered sex offender. He and those around him will be severely impacted by the new law. At the time of his plea, he understood he would be on the registry for ten years. He would not have pled if he had known he would now be on the State Patrol website until 2025. He currently lives with his mother, stepfather and brother, all of whom have access to two computers in the home. All the information that is on their computers, cell phones, and other electronic devices will be “possessed” by Doe 6 and therefore subject to seizure by law enforcement and
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continuous search. He owns and operates a home marketing business online, the additional years of community notification and reporting requirements will severely hamper his ability to grow his business until 2025. 119. John Doe 7 is a resident of Dodge County, Nebraska. Pursuant to a plea agreement he pled guilty to attempted second degree sexual assault of a child in 2005, and is currently a Level I registered sex offender. Doe 7 has been married since 2002, and presently lives with wife and step-daughter. They maintain a family computer in their home. He is worried that if he is placed on the State Patrol website, he will lose his current job. Under the current act he is a 10 year resident. Under the New Act Doe 7, a registrant who received no jail sentence and has at all times been classified as a Level I registrant, will be a lifetime registrant. Had he known the future registration consequences of his plea, he would not have entered into it. 120. John Doe 8 is a resident of York County, Nebraska. In 1989, he was convicted in California of a lewd and lascivious act with a child and is currently a Level III registrant. He subsequently moved to Nebraska in 2005 and currently lives with his wife in their marital home. He maintains a computer in their home, but it does not have internet access. He does not own a house phone, and relies exclusively on his cell phone for communication. Under the New Act he has reason to believe he will have to get rid of his phone or allow the State Patrol to install monitoring software on it. He intends to visit friends and family in California, Ohio, Kansas, Virginia, and Colorado, but he is confused by the rigorous notification process and what notification he must provide before traveling. 121. John Doe 9 is a resident of Douglas County, Nebraska. In 2005 Doe 9 entered into a plea agreement and was convicted in Pottawattamie County, Kansas of aggravated sexual battery. At the time of the offense Doe 9 was 24 years old while the victim was 20 years old. He was discharged from probation in May, 2009. He is currently a Level I registrant. He works for an electric utility company and is required to report to various counties for work. He also uses computers as part of his employment. He lives with two
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roommates, and they collectively have access to numerous electronic devices capable of internet connection. Under the New Act Doe 9 is uncertain if he is required to report the devices he has access to but are actually owned by his roommates. He uses email to stay in touch with friends and family, which will now be subject to search by law enforcement. His family owns a farm on which he regularly works during the busy seasons. He will now be required to register in the county where the farm is located if he intends to assist them for a period exceeding three days time. Although he was determined by the State to be a low risk, he will now be subject to community notification for 25 years. Had he known the State would later change the requirements of his plea agreement, he would not have entered into it. 122. Jane Doe 10 is a resident of Lancaster County, Nebraska. She entered into a plea agreement and was convicted of third degree sexual assault in 2004. Doe 10 is currently a Level I registered sex offender. Doe 10 works primarily as a paralegal for a tax attorney in Lancaster County, Nebraska. In her work Doe 10 is required to use internet enabled computers throughout any given work day and has access to numerous forms of confidential information. She is worried she will lose her job if law enforcement is allowed to search and monitor her employer’s computer and gain access to attorney-client information. Doe 10 owns a cellular telephone. Under the New Act she will be a 15 year registrant. She would not have entered into her plea agreement if she had known that she would be subject to community notification under the new act. 123. John Doe 11 is a resident of Saunders County, Nebraska. He entered into a plea agreement and was convicted of attempted first degree sexual assault in 2000. He is currently a Level I registrant. He was married in 2005 and has three school-age sons. He coaches several sports teams in school and community leagues. Doe 11 works as a mechanic traveling to distribution centers to perform maintenance and repairs on industrial equipment. This work takes Doe 11 to several counties throughout the State of Nebraska. To complete the duties of his job Doe 11 relies heavily on an internet enabled company computer, a cell phone and a company vehicle. Doe 11 communicates with
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other employees and clients via interactive websites. He worries that once his employer learns that the work computers will be subject to search and seizure, he will lose his job. In his home Doe 11 has a computer that is used by all members of the family. Doe 11 also has a cellular telephone that he uses for personal and business purposes. He was scheduled to be off the registry in 2012, but under the New Act will now be subject to the registration requirements and community notification until 2017. Had he known the State would later change the requirements of his plea agreement, he would not have entered into it. 124. John Doe 12 is a resident of Douglas County, Nebraska. He entered into plea agreements and was found guilty to possession of child pornography in 2001 and 2004. He is currently a Level II registrant not subject to community notification. He is married and has children from a previous marriage and a step-daughter of his current marriage. Doe 12 owns an information technology company and has numerous computers and electronic communication devices within his possession, almost all used exclusively for his business. He is a public figure in his industry, and has published articles and does speaking engagements worldwide. It will be impossible for him to continue his business under the New Act. First, he will be subject to the new crime of Unlawful Use of the Internet by a Sex Offender. This restriction will effectively prevent him from operating his information technology company. Second, all of the computers, cell phones, and other electronic communication devices in his possession will be subject to search, seizure and constant monitoring. Third, he is terrified that the public notification alone will ruin his company. Under the New Act he will be listed on the State Patrol website for life. Had he known the State would later change the requirements of his plea agreement, he would not have entered into it. 125. John Doe 13 is a resident of Polk County, Nebraska. In 2005, he entered into a plea agreement and was convicted of two counts of sexual assault of a child. He currently a Level II registered sex offender. Doe 13 is a farmer who lives with his wife on the family farm and works in multiple counties. Doe 13 owns a computer as well as a cellular
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telephone. He has taken part in both group and individual counseling and is considered by his counselor to be at a low risk to re-offend. Under the New Act he will be a lifetime registrant. He would not have entered into the plea agreement had he known about the added registration requirements. 126. John Doe 14 is a resident of Douglas County, Nebraska. He entered into a plea agreement and was convicted in 1994 of sexual assault of a child. He is currently a Level II registered sex offender. He lives with his fiancé. He owns a cell phone with internet capabilities. Under the New Act he has reason to believe it will be subject to search and seizure by law enforcement as well as ongoing monitoring. As part of his job duties as a manager for a telemarketing group he is required to use a computer and the internet throughout the day. He is scared that his job is in jeopardy because his work computer will now be subject to constant search and seizure. He also engages in political discussion in online forums, and will be prevented from accessing those websites under the new act. He would not have entered into the plea agreement had he known about the added registration requirements. 127. John Doe 15 is a resident of Platte County, Nebraska. He pled guilty to first degree sexual assault in 1998, and is currently a Level III registrant. At the time of the offense Doe 15 was 23 years of age and the victim was 15 years of age. Subsequent to his conviction Doe 15 and the victim were married. Today, he lives with his girlfriend in Saunders County. He owns a cell phone with internet capability. He would not have entered into the plea agreement had he known about the added registration requirements. He will be obligated to register in multiple counties because he lives in Platte County, works in various counties across Nebraska as a welder, has family in Gage County, and owns property in other counties in the State. He is worried that his employer will no longer use him for new projects because his workplace may be subject to search by law enforcement. Furthermore, for this same reason he worries that it will be impossible to obtain future employment. Doe 15 would not have entered into his plea agreement had he known the State would later change his requirements.
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128. John Doe 16 is a resident of Douglas County, Nebraska. He was convicted at trial of first degree sexual assault in 2006 and is currently a Level II registrant. Doe 16 lives with his wife and two step-children in the home he owns with his wife. All members of the family have access to electronic communication devices in the home. Doe 16 is unsure as to what extent law enforcement will be able to search his home and electronic communication devices owned or used by his wife and step-children. He is currently employed as a telemarketer where he is required to use computers and other electronic communication devices extensively. Doe 16 is concerned that the New Act will allow law enforcement to search his place of work. He fears such constant interruptions will render him unemployable. He and his wife own two vehicles and have equal access to both. Under the New Act Doe 16 will be a lifetime registrant.
129. John Doe 17 is a resident of Lancaster County, Nebraska. He entered into a plea agreement which covered charges from two California counties in 2004. Under the agreement he pled guilty to lewd and lascivious acts with a child, attempted sexual assault of a child and possession of child pornography. Doe 17 is currently a Level II registrant subject to lifetime registration. He resides with his parents who maintain numerous electronic communication devices and computers in the residence. He works for his father’s computer hardware, conferencing, and consulting business. Restrictions relating to his “possession” of computers and electronic communication devices, and the constant search, seizure and monitoring by law enforcement are real barriers to employment. During a brief period of time while he was erroneously listed on the State Patrol website, he received disquieting mail and became ostracized in his community. He is terrified what further public notification will bring.
130. John Doe 18 is a resident of Douglas County, Nebraska. In 2001 he pled guilty and was convicted of third degree sexual assault of a child. Doe 18 is currently a Level II registrant subject to the registry for 10 years. Doe 18 lives with his wife in their marital home. In the home they have a computer and cell phones that will be subject to the New Act’s search and monitoring provisions. He and his wife own four vehicles that they both
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operate, all of which will be subject to registration. Doe 18 is currently self employed performing computer consulting and home repairs for clients. For his business, he regularly uses interactive websites that allow him to create a profile and communicate with other users. He will be prevented from continuing in this occupation because of the new criminal sanction. Doe 18 and his wife are concerned about the public retribution they may be subject to if he is subjected to public notification under the New Act. 131. John Doe 19 is a resident of Nebraska. In 2001 he entered into a plea agreement and was convicted of sexual assault of a child and sexual assault of a child without consent. He is currently a Level II registrant subject to registration for 10 years. Doe 19 primarily works driving a freight truck and travels interstate on a frequent basis. Since he travels continually Doe 19 stays overnight with friends or sleeps in his truck. He leases office space in Lancaster County to operate his music promotion and audio production company. Because of its complex requirements, Doe 19 fears that he will not be able to comply with the New Act as it requires registration notification in every county where he has a temporary domicile, habitual living location and carries on a vocation for 14 days in a row or an aggregate of 30 days in a year. Since Doe 19’s vocation is truck driving, he fears he will need to register in every county where he regularly drives. Additionally, Doe 19’s music promotion duties necessarily cause him to utilize internet websites and communicate with others via the internet. He regularly uses websites such as eBay to purchase audio equipment and musical instruments. He will not be permitted to use this website under the New Act. Under the New Act Doe 19 will be subject to public notification and will be a 25 year registrant. Doe 19 would not have entered into his plea agreement had he known the State would later change his requirements. 132. John Doe 20 is a resident of Douglas County, Nebraska. In 1994 he entered into a plea agreement and was convicted of second degree kidnapping in Polk County, Iowa. He moved to Nebraska and was required to register as a Level III. Doe 20’s classification is currently on appeal; Thus he has never been subject to public notification. Doe 20 lives with his wife and child in their marital home. He and his wife own and operate two
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vehicles. They have cellular telephones and an internet enabled computer in their home. Doe 20 fears that under the New Act he will no longer be able to own a cellular telephone; and that he will be subject to un-restricted search by law enforcement. Doe 20 will be a lifetime registrant under the New Act. At the time he entered into his plea agreement sex offender registries did not exist in Iowa or Nebraska. 133. John Doe 21 is a resident of Omaha, Douglas County, Nebraska. He was convicted in 2006 of third degree sexual assault in Douglas County following a trial. He was determined to be a Level 1 sex offender by the Nebraska State Patrol and was required to register for a period of 10 years. As a result of his Level 1 Classification, only law enforcement officers were privy to his placement on the registry. Under the New Act, Doe 21 is required to register for 15 years and his information is posted on the website listing him as one of those persons that is a high risk to commit repeat offenses. He was found guilty of slapping a female on her buttocks as she was going up the stairs. He received a two-year probation sentence and was released after one year. At the time that he went to trial and was sentenced, the registration requirement was for a period of 10 years. He had the right to present evidence and challenge his reoffense-risk status. He was classified by the state as a low risk to reoffend. He has concern for himself and his family as the New Act presents extreme hardships, privacy invasions, and an untrue portrayal of his risk to the community on a state sanctioned website. He runs a business and use computers to keep track of personnel information and financial information. He sells and ships goods around the world. The information on his computers include trade secrets, financial information of customers, vendors and his business as well as personal information of his employees. His wife and three children use computers in the home and access the internet for non work-related reasons. He and his wife do not want their privacy invaded by law enforcement officers at their home. He prefers not to subject his employment to searches of the electronic devices owned by his employer. He fears that his business would be jeopardized if that was to take place. He is not presently on probation or parole.
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134. John Doe 22 is a resident of Buffalo County, Nebraska. He was convicted of misdemeanor sexual battery in Saline County, Kansas. He was not sentenced to jail time and successfully completed one year of probation. Doe 22 was a Level II registrant and subject to registration for 10 years. Under the New Act, Doe 22 is a 15 year registrant. He entered a no contest plea and was convicted of misdemeanor sexual battery in 2001. In 2008 he petitioned a Kansas court to have his conviction successfully expunged. Despite that proceeding, he is still subject to the Nebraska registry. He currently lives with his wife in their marital home. In the home they have several computers, cell phones and gaming devices that are all capable of accessing the internet. He works as an administrator for a hospital where he is required to use several computers and routinely access confidential patient information subject to HIPAA regulations. His wife works for a college where she has access to and is required to use confidential student information subject to FERPA (Family Educational Rights and Privacy Act) regulations. In addition to accessing such information at work, they also work remotely from home. He fears that the New Act will render the two of them unemployable as their training has prepared them for jobs that require them to handle confidential information on a regular basis. In addition to work related activities, he and his wife both use the computers in the home for personal business. He fears that the New Act will allow law enforcement to access such information free of any restrictions. He does not know to what degree law enforcement will be required to protect such confidential information or perhaps disclose such information. He is concerned that he and his wife will no longer be able to possess cellular telephones and internet-enabled gaming devices. They co-own two vehicles. His wife will be subjected to unwarranted search of their personal vehicles simply because his name is associated with them. He fears harassment and public ridicule if his sex offender status remains public under the rules of the New Act. He is concerned about discrimination from his neighbors and fears that he will be driven out of his new neighborhood if his name, charge, picture and address continue to be publicly exhibited despite the fact that he does not pose a threat to them. He is certain that his employer will not want to deal with the negative publicity it will more than likely
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experience when his sex offender status is discovered. He routinely travels for his job. He fears that the new in-person reporting requirements for travel lasting more than three days will be so burdensome that it will negatively affect his employment. 135. John Doe 23, a resident of Omaha, Douglas County, Nebraska, was convicted in 2008 of false imprisonment, first degree in Douglas County following a plea. He was determined to be a Level 1 sex offender by the Nebraska State Patrol and was required to register for a period of 10 years. As a result of his Level 1 Classification, only law enforcement officers were privy to his placement on the registry. Under the New Act, Doe 23 is required to register for 25 years and his information is posted on the website listing him as one of those persons that is a high risk to commit repeat offenses. He had consensual sex with a person approximately his same age. They both had been drinking alcohol. She later claimed that it was nonconsensual. At the time of the offense, he was eighteen. He was placed on probation for a period of three years with an upfront jail sentence of 180 days. He is still on probation. At the time that he entered his plea agreement with the state of Nebraska, the registration requirement was for a period of 10 years. He had the right to present evidence and challenge his risk status to reoffend. He was classified by the state as a low risk to reoffend. He has concern for himself and his family as the New Act presents extreme hardships, privacy invasions, and an untrue portrayal of his risk to the community on a state sanctioned website. He uses a computer at work. He is concerned that he will lose my job if my employer is required to install tracking software. He lives at home with his parents. He has more than one computer in the home with internet access. He is concerned that incorrectly being labeled a dangerous sex offender with a high risk of reoffending will affect his family’s’ relationships with neighbors and friends. His family uses at least one website that could be called a social networking site to keep in touch with family and friends. 136. John Doe 24 is a resident of Lancaster County, Nebraska. He was convicted of child enticement by means of an electronic communication device. He was sentenced to jail for one year and a day and served six months of his sentence. He was a Level I registrant
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following completion of his incarceration and was originally subject to the registration for ten years. Under the New Act, he is a twenty five year registrant. He is worried about his personal rights to privacy and how those rights will be affected by the New Act. He also fears unnecessary and unwarranted governmental intrusion into his daily life. He has privacy concerns for his roommates’ rights. They have several computers, cellular telephones and a gaming console capable of communicating over the Internet. He regularly travels to Douglas County, Nebraska where he spends time with my family. During such visits he regularly uses and services family members’ computers. He fears that the New Act will allow law enforcement to search and monitor his family’s home and computers. Since his conviction he has endured severe public retribution. He has lost four jobs, was subject to death threats by unknown persons, had his residence broken into, and his car tampered with. Two of his current roommates are considering moving out as the Lincoln Police Department has repeatedly harassed him at his home. He fears further harassment and public ridicule if his sex offender status remains public under the rules of the New Act. He is concerned about discrimination from his neighbors and fear that he will be driven out of his new neighborhood if his name, charge, picture and address continue to be publicly exhibited despite the fact that the State has previously determined him to be a low-risk to reoffend. He is concerned about h is employer firing him because he works with computers and electronic communication devices. His duties as a network administrator require extensive use of email and web based peer-to-peer communication software. In addition, the sheer number of computers and electronic communication devices that he works with and has in his possession on a daily basis would make compliance with the rules and regulation of the New Act near impossible and possibly crippling to his employer. Several of his employer’s clients deal in confidential information subject to strict security measures. In addition to his full-time job he works regularly for private individuals performing computer repair and service work. He enjoys volunteering with several organizations in Lancaster County. He fears such organizations will no longer allow him to serve his community once he is subject to public notification. He currently uses the internet extensively to research public policy
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and governmental issues. Under the New Act, he would not be able to visit many of the websites where he finds such information. This would effectively prevent him from engaging in political debates that have profound implications on him. 137. John Doe 25 is a resident of Sarpy County, Nebraska. In 2007 he pled guilty to felony and misdemeanor child pornography charges in El Paso County, Colorado. Pursuant to his plea agreement all but one misdemeanor conviction will be dismissed by the court in Colorado once he completes probation in 2011. He was determined to be a Level II registered sex offender subject to the registry for 10 years. Despite the fact that all charges but the misdemeanor will be dismissed in 2011, the Nebraska State Patrol has notified Doe 25 that he will be a lifetime registrant Under the New Act. He fears that the New Act does not provide a procedure by which he will be able to appeal his status as a lifetime registrant once he completes probation. He is faced with being required to register for life, despite the fact that after February, 2011 he will only have a misdemeanor conviction. He currently lives with his wife, three children and brother-inlaw in the family home in Sarpy County, Nebraska. He and his wife have equal access to three vehicles. He fears that the new law will allow law enforcement to stop his wife when she is driving and search her vehicle without cause. He feels that this is a violation of her rights despite the fact that she has never been in trouble with the law. In the home they have two computers, an Internet enabled gaming system and four cellular telephones. His wife uses their computers to conduct personal business and stores confidential information regarding their finances on their computers. He is currently enrolled part-time in college classes. In order to fully participate with his classes he is required to use email to communicate and websites to conduct research for class. He fears that the New Act will prevent him from fully participating in his classes. He currently works at a restaurant where he uses an internet enabled computer to complete his duties. He fears that the New Act will likely cause his employer to fire him due to them not wanting to be subject to constant searches and remote monitoring by law enforcement. Had he known the current implications of his guilty plea, he would not have entered into the plea agreement.
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138. John Doe 26 a resident of Sarpy County, Nebraska. In 2006 he pled guilty to third degree Sexual Assault of a child. He was determined to be a Level II registered sex offender subject to the registry for 10 years by the state. Under LB 285, Doe 26 will be subject to the registry for 15 years. He entered into a plea agreement requiring him to plead guilty to third degree sexual assault of a child. At the time he entered into his plea agreement, he did so with the understanding that he would be subject to the sex offender registry for a period of 10 years. He currently lives with his wife in their marital home. They have two computers and two internet enabled cellular telephones. They use the devices extensively for personal and business purposes. Their computers contain personal financial information as well as proprietary information related to his work. He and his wife jointly own and have equal access to two vehicles. His employment opportunities will be severely impacted by the rules and requirements of the New Act. He currently works for a company that requires him to travel regularly throughout several counties to perform his duties. He will face extreme hardship if he wishes to travel outside of the county for more than three days as he will be forced to make in-person notifications to the sheriff in his home county, the county he visits and his home county upon his return. Had he known the current implications of his guilty plea, he would not have entered into the plea agreement.
139. John Doe 27 is a resident of Douglas County, Nebraska. He pled guilty to attempted sexual assault of a minor in 2005. Under the version of the Nebraska Sex Offender Registration Act in force when he entered his plea, he was a Level II registered sex offender subject to the registry for a period of 10 years. He lives with his wife and children. He pled guilty to, and was convicted of, attempted sexual assault of a minor in 2005. He was sentenced to two years of probation. He and his wife each own a vehicle, but they occasionally drive each other’s cars. He will be forced to inform law enforcement of both vehicles, and he is worried that this will subject both he and my wife to additional scrutiny from law enforcement merely because of his status as a registrant. He married his wife in 2008, and they have one child together. She is a foreign national, and he filed and sponsored a Petition for Alien Relative on her behalf. Because of his status as a sex
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offender, the Department of Homeland Security stated that he was prohibited from filing this petition notwithstanding the fact that he provided a lot of evidence that he posed no risk to his wife. After the Nebraska State Patrol posted his information, he was told by his landlord that he and his family had to immediately move out of their home because he was a registered sex offender. He applied and was rejected from many potential rentals because his status was listed publicly on the State Patrol website. This has caused serious disruption in his life because his oldest son will be forced to change schools. He and his family frequently use the computer in their home, as well as a gaming system that has internet capabilities. Under the New Act, he fears that he will be forced to permit law enforcement to enter his home and conduct searches whenever they want, or be criminally prosecuted for denying access. He uses the internet regularly for personal use, such as to discuss fitness, keep updated on and discuss the news and politics, connect with family and friends, buy and sell, blog, and for general entertainment. He used to use Facebook regularly, but he is too paranoid to use it because of the new crimes he could be charged with. He currently has a cell phone that has internet capabilities. His wife’s phone is also capable of accessing the internet. He regularly uses only one computer at work, but he is around and could use almost all the computers. He is certain that the search of those devices and continual monitoring of his workplace devices will cause his current employer to terminate his job, and render him generally unemployable for any position that requires the use of a computer or other internet device. When he entered his plea, he did so knowing that he would be required to register for 10 years. 140. John Doe 28 is a resident of Malcolm, Lancaster County, Nebraska. He was convicted in 2006 of a misdemeanor sexual assault in Hall County following a trial. He was determined to be a Level 1 sex offender by the Nebraska State Patrol and was required to register for a period of 10 years. As a result of his Level 1 Classification, only law enforcement officers were privy to his placement on the registry. Under the New Act, Doe 28 is required to register for a period of 15 years and his information is posted on the website listing him as one of those persons that is a high risk to commit repeat offenses.
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At the time of the offense, he was over forty years old and the victim was approximately the same age. As he walked by her in a bakery, he grabbed her buttocks. Nothing was said. He was placed on probation on February 17, 2006, for a period of one year and has been discharged. At the time that he went to trial and was sentenced, the registration requirement was for a period of 10 years. He had the right to present evidence and challenge his reoffense-risk status. He has concern for himself and his family as the New Act presents extreme hardships, privacy invasions, and an untrue portrayal of his risk to the community on a state sanctioned website. He is a foreman in a union and is required to travel on a regular basis. He covers the entire state of Nebraska as well as parts of Iowa. The advance notice that he receives of his travels will put him in violation of the New Act on a regular basis as he does not regularly receive three days notice of his site location. Usually he works 4 days and 3 nights per destination. He does not always know the length of stay at the time he receives the work site. He uses computers and a cell phone at work capable of internet access. Additionally, his family, which includes his wife and two kids, use computers at home and access the internet. His family does not want their privacy invaded by law enforcement officers at their home. He prefers not to subject his employment to searches of the electronic devices owned by his employer. They recently built a new home. He is concerned that the public notification listing him as a high risk to reoffend, the authority of law enforcement officers to monitor all electronic devices used by him, and the travel restrictions will cause him to lose his job and he would be subjected to further prosecution. As a result, his family will suffer too. 141. John Doe 29 is a resident of Omaha, Douglas County, Nebraska. He was convicted in 2005 of first degree sexual assault in Douglas County following a plea. He was determined to be a Level 1 sex offender by the Nebraska State Patrol and was required to register for a period of 10 years. As a result of his Level 1 Classification, only law enforcement officers were privy to his placement on the registry. Under the New Act, Doe 29 is required to register for life and his information is posted on the website listing him as one of those persons that is a high risk to commit repeat offenses. At twenty years
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old he had consensual sex with a person that had lied about her age. She ended up being only twelve years old. He was placed on probation for a period of four years. He was released from probation in April of 2009. He had the right to present evidence and challenge his risk status to reoffend. He has concerns for he and his family as the New Act presents extreme hardships, privacy invasions, and an untrue portrayal of my risk to the community on a state sanctioned website. He uses a computer at work. He is concerned that he will lose his job if his employer is required to install tracking software. He lives by himself and has at least one computer in the home with internet access. He is concerned that incorrectly being labeled a dangerous sex offender with a high risk of reoffending will affect his family’s’ relationships with neighbors and friends. 142. John Doe 30 is a resident of Holdrege, Nebraska. He was convicted in 2002 of sexual assault of a child in Phelps County following a plea. He was determined to be a Level 3 sex offender by the Nebraska State Patrol and was required to register for a period of 10 years. Under the New Act, Doe 30 is required to register for life. He was sentenced to four to five years in prison. He was released from prison in 2004. At the time that he entered his plea agreement with the state of Nebraska, the registration requirement was for a period of 10 years. He was scheduled to be off the registry in less than ten years. He had the right to present evidence and challenge his risk status to reoffend on an annual basis. He has concern for his family as the New Act presents extreme hardships and privacy invasions. He lives with his parents and three brothers, and they have at least two computers in the home with internet access. He commutes every day from Phelps County to Buffalo County where he works three different jobs. He is concerned that his reporting obligations will require so much time off that his jobs will be in jeopardy. 143. John Doe 31 is a resident of Lincoln, Lancaster County, Nebraska. He was convicted in 1997 of attempted sexual assault in the 1st degree in Platte County following a plea. He was determined to be a Level 1 sex offender by the Nebraska State Patrol and was required to register for a period of 10 years. Under the New Act, Doe 31 is required to register for a period of 25 years and his information is posted on the website listing him
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as one of those persons that is a high risk to commit repeat offenses. At the time of the offense, he was twenty one years old and impregnated his girlfriend shortly before she turned sixteen. He was placed on probation for a period of three years. He was discharged in March of 2000. At the time that he entered his plea agreement with the state of Nebraska, the registration requirement was for a period of 10 years. He was scheduled to be off the registry in March of 2010. He had the right to present evidence and challenge his reoffense-risk status. He was classified by the state as a low risk to reoffend. He has concern for his family as the New Act presents extreme hardships, privacy invasions, and an untrue portrayal of my risk to the community on a state sanctioned website. He is a computer contractor that provides desk side support for a company in Lincoln, Nebraska that has between six and seven hundred computers. He works constantly with computers and the internet for his employment. If his employer has tracking software installed on the computer as a result of his status, he will lose his job. He is married and has two children. He is concerned that incorrectly being labeled a dangerous sex offender with a high risk of reoffending will affect his family’s’ relationships with neighbors and friends from school. He uses at least two social networking sites to keep in touch with family and friends and to promote his band. 144. John Doe 32 is a resident of Douglas County, Nebraska. He was convicted of first degree assault in 1982. He was determined to be a Level I sex offender. Under the New Act he will be required to register for lifetime. He was a juvenile at the time of his conviction. He was sentenced to serve twenty two to thirty five years in prison. He was paroled in 1998. He was released from parole in 1999. He currently lives with his wife and two daughters. The family home has a computer and cellular phones which are capable of accessing the internet. He and his wife have equal access to two vehicles. 145. John Doe 33 is a resident of Waverly, Lancaster County, Nebraska. He was convicted in 2007 of sexual assault in the third degree in Lancaster County following a plea. He was determined to be a Level 1 sex offender by the Nebraska State Patrol and was required to register for a period of 10 years. Under the New Act, Doe 32 is required to register for
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15 years and his information is posted on the website listing him as one of those persons that is a high risk to commit repeat offenses. He had consensual sex with an adult approximately his same age. She later claimed that it was nonconsensual. Law enforcement did not do a rape kit because she had had sexual intercourse with someone else between the time that they had intercourse and the time that she reported it to the police. He pled because he did not want to risk losing at trial, and the charge was reduced to a misdemeanor with a 10-year registration requirement. He served 250 days of jail. At the time that he entered my plea agreement with the state of Nebraska, the registration requirement was for a period of 10 years. He had the right to present evidence and challenge his risk status to reoffend. He has concern for his family as the New Act presents extreme hardships, privacy invasions, and an untrue portrayal of his risk to the community on a state sanctioned website. He lost his job on February 1, 2010, because of his sex offender status under the New Act. He had worked there for approximately 18 months and was a dedicated and valued employee. He is concerned that any new employment that he obtains will be in jeopardy due to the likelihood that he will use a computer at work. He is concerned that he will lose his job if his employer is required to install tracking software. He lives with his future wife’s parents as the apartment complex that she lives in will not allow him to live there with his current sex offender status under the New Act. Her parents have a computer in the home with internet access. He has a cell phone with internet capability. His future wife lives with her children and their children. They have a home computer, gaming system and at least one cell phone, all with internet capability. He is concerned that incorrectly being labeled a dangerous sex offender with a high risk of reoffending will affect his family’s’ relationships with neighbors and friends. They use at least three websites that could be considered a social networking site to keep in touch with family and friends. 146. John Doe 34 is a resident of Douglas County, Nebraska. He was convicted in 2004 of attempted second degree sexual assault in Lancaster County following a plea. He was determined to be a Level 1 sex offender by the Nebraska State Patrol and was required to
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register for a period of 10 years. He is required to register for life under the New Act. He had consensual sex with a fifteen year old female. He was sentenced to one year in jail. At the time that he entered his plea agreement with the state of Nebraska, the registration requirement was for a period of 10 years. He had the right to present evidence and challenge his reoffense-risk status. He was classified by the state as a low risk to reoffend. He has concern for his family as the New Act presents extreme hardships, privacy invasions, and an untrue portrayal of his risk to the community on a state sanctioned website. He travels to Dodge County and visits family in Lancaster County on a regular basis. He and his wife have at least one computer at their home with internet access. 147. John Doe 35 is a resident of Dawes County, Nebraska. He was convicted in 2005 of child molestation in the State of Washington following a plea. He was determined to be a Level 1 sex offender by the Nebraska State Patrol and was required to register for a period of 10 years. He is required to register for a period of 25 year under the New Act. At the time of the offense he was twenty three years old and had consensual sexual intercourse one time with a fourteen year old female. He was sentenced to seven months in jail and placed on probation for a period of one year. He was discharged from probation after successfully completing it. At the time that he entered his plea agreement with the state of Washington, the registration requirement was for a period of 10 years. He had the right to present evidence and challenge his reoffense-risk status. He was classified by the state as a low risk to reoffend. He has concern for his family as the New Act presents extreme hardships, privacy invasions, and an untrue portrayal of his risk to the community on a state sanctioned website. He is an electrician and sometimes travels outside of his home county. He is married and has two children. He is concerned that incorrectly being labeled a dangerous sex offender with a high risk of reoffending will affect his family’s relationships with neighbors and friends from school. They use at least one social networking site to keep in touch with family and friends and have at least one computer at home with internet access.
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148. John Doe 36 is a resident of Otoe County, Nebraska. He was determined to be a Level 1 sex offender by the Nebraska State Patrol and was required to register for a period of 10 years. He was reclassified to a Level 2. As a result of his Level 1 Classification, only law enforcement officers were privy to his placement on the registry. As a result of his Level 2 Reclassification, only law enforcement officers, schools, daycares, churches, and his neighborhood were notified of his registration status. Under the New Act, Doe 36 is required to register for a period of Life and his information is posted on the website listing him as one of those persons that is a high risk to commit repeat offenses. In 1994, he was found guilty of child sexual assault in the third degree in the State of Iowa following a plea. At the time of the offense, he was seventeen years old and had consensual sexual intercourse with an eleven year old female that had convinced him that she was sixteen years old. He was sentenced to two years of probation. He was discharged from probation after successfully completing it. At the time that he entered his plea agreement with the State of Iowa, the registration requirement was for a period of 10 years. He had the right to present evidence and challenge his reoffense-risk status. He has his family as the New Act presents extreme hardships, privacy invasions, and an untrue portrayal of his risk to the community on a state sanctioned website. In 2006, he received a letter from the Public Service Executive for the Iowa Sex Offender Registry indicating that his 10-year registration requirement had expired. The letter further indicated that no evidence had been found to indicate that his registration requirement should be extended. He is engaged and has three children. He is concerned that incorrectly being labeled a dangerous sex offender with a high risk of reoffending will affect his family’s relationships with neighbors and friends from school. They have at least four computer at home with the capability of internet access.
149. Jane Doe A is a resident of York County, Nebraska. She is married to John Doe 9 and resides with him in their marital home. Although she has not been convicted of any crime, under the New Act she is subject to the same degree of search and seizure as her husband. She owns a cell phone that has internet access. Since she lives in the same
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home as her husband it will be within his possession. Under the New Act she has reason to believe it will be subject to search and seizure by law enforcement as well as ongoing monitoring. She derives great pleasure from traveling and visiting friends with her husband, but she is worried that she will not be able to because of the new in-person reporting requirements. She and her husband share the same vehicle. She does not understand why her computer use and cell phone is subject to scrutiny from law enforcement. 150. Jane Doe B is a resident of Douglas County, Nebraska. She is married to John Doe 16 and resides with him in their marital home, where they collectively use electronic devices capable of Internet communications, including a computer and cell phones. She and Doe 16 have equal access to the family vehicle. 151. John Doe C is a resident of Lancaster County, Nebraska. He is an attorney who employs Jane Doe 10, and maintains attorney-client privileged and other sensitive information regarding cases on work computers that he owns. He has serious concerns about maintaining Jane Doe 10 as an employee in light of the continuous law enforcement presence in his business. His concern is even more acute because Doe 10 is the “architect” of his network system and potentially “possesses” all the data for his practice. He is concerned that his ethical obligation for confidentiality conflicts with Doe 10’s consent to constant search and monitor, and that the only solution is to terminate her employment. He is also concerned that if Doe 10 remains an employee and law enforcement installs monitoring software, he will never be sure that the software is removed. He feels caught between terminating an integral employee on who he relies heavily on and risking disclosure of client information due to the monitoring software, which could result in an ethical violation and potential loss of his license to practice law. 152. Jane Doe D is a resident of Stanton County, Nebraska. She is the mother of John Doe 5, and resides with him in her residence. She owns a computer that is connected to the internet. Despite the fact that Doe 5 does not use the computer at all, it will still be subject to search and seizure by law enforcement, as well as monitoring software.
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153. John Doe E is a resident of Nebraska. He owns a consulting company, and employs Doe 12 for the in-house database used by his company and its website which gives Doe 12 access to numerous computers including the corporate servers. He is shocked that Doe 12 will now have these added restrictions because while on federal supervised release, there was no such search or monitoring of his computer system. He even discussed the terms of Doe 12’s supervised release with his monitoring officer, but the terms of the New Act are more intrusive than supervised release. He is unwilling to let law enforcement search company computers and other electronic communication devices regularly, or to install monitoring software on them. Given the added intrusion into the operations of his business and the possible negative reputation for his company, he feels that the only alternative is to terminate Doe 12. This will materially impact the company in sunk costs of $60,000 -$70,000 and loss of future income of between $500,000.00 and $1,000,000.00. However, he feels that the pecuniary loss is better than the alternative under the New Act and would refuse to hire anyone subject to its requirements.
154. John Doe F is a resident of Lancaster County, Nebraska. He owns a computer company that supplies computer conferencing hardware and software, consulting, online training, and customer support. The use of computers, web-enabled cell phones, electronic communication devices, email, instant messaging, chat rooms, and other internet communication tools are integral to his operation. His son, Doe 17, is an employee, and he hoped that his son would play a larger role in the company after his parole ended as part of his succession plan. However, the New Act is a more restrictive form of parole and will prevent this from happening. His business requires periodic interstate travel at the last minute, which Doe 17 will not have the ability to do. He is of the opinion that the confidentiality concerns alone will prevent him from keeping his son as an employee or hiring others subject to the New Act. In addition, Doe 17 lives in the family home. Doe F maintains a separate home office at the family home and relies heavily on his home computer and cell phone to connect to the internet and conduct business from home. His wife also runs a business from home consulting pharmaceutical clients, which involves
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sensitive information. Doe F is concerned that law enforcement will now have access to all of his and his wife’s business computers whether at work or home, including client and employee information and trade secrets. Doe F is faced with this dilemma: either banish his son from his residence and business or have that business and residence open to law enforcement search and seizure. This is unacceptable to him personally and professionally. 155. Jane Doe G is a resident of Douglas County, Nebraska. She is married to and is a business partner with Doe 12. She plans on residing with Doe 12 and their children once he is released from supervised release in January, 2010. While her husband does not currently stay in the home they own together overnight, he is in the home daily as that is where they conduct their business. She and her children own computers, cell phones, and other internet capable devices. They collectively maintain a family cell phone plan. Since her husband has virtually free access to these devices and therefore “possesses” them, she is upset that she and her children will be subject to constant search and seizure and internet monitoring. She is perplexed that although her husband is not subject to community notification because he is not a high risk threat, their home will now be listed along with those determined to be high risk. She has heard about instances of vigilantism and is scared for her and her family’s safety. 156. Jane Doe H is a resident of Douglas County, Nebraska. She is Doe 12’s minor daughter. Doe 12 pays for her cell phone so they can stay in contact, but now that phone will be subject to constant monitoring by law enforcement. Doe H regularly visits Doe 12 at the home he owns with Doe G, but because of the restrictions on Doe 12’s internet usage, she worries she will not be able to use Facebook, message her friends, use YouTube, or access online games. Doe H’s claim is brought by Doe 12 on her behalf. 157. Jane Doe I is a resident of Douglas County, Nebraska and the daughter of Doe G. She owns a cell phone and computer that Doe 12 has access to and therefore “possesses,” for at least some amount of time. She is concerned that this will subject her devices to search and seizure and monitoring by law enforcement. Currently, she maintains a password-
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protected computer so the probation officer does not have to search it, but the New Act opens up her devices to more intrusive and ongoing searches. She is afraid that her mother and stepfather will decide he should not move in because of the scrutiny and public scorn that will follow him as an individual listed as a sex offender on the public notification website. Doe I’s claim is brought by Doe G on her behalf. 158. John Doe J is a resident of Douglas County, Nebraska. He is Doe 12’s son, and he resides in the residence owned by Doe 12 and Doe G. He is worried that his name is soon going to be associated with a sex offender’s, even though his father was determined not to be a high risk to reoffend. He drives a vehicle that is owned by his stepmother, but that Doe 12 operates occasionally. Therefore, a description of Doe J’s vehicle, license plate, and location where it is normally kept will be listed on the registry. Even though he has done nothing wrong, he is terrified that when law enforcement sees him driving a registered vehicle, he will be stopped, especially if he is driving with his youthful friends. He owns a computer, iPod touch, and cell phone that he naturally keeps at the house with Doe 12. Because Doe 12 has even momentary “possession” of these items on occasion, he is concerned that they will be subject to search and seizure and monitoring by the State Patrol. He is frustrated that he waited a long time to live with his father, and now he is faced with the dilemma of either permitting law enforcement to monitor his electronic devices or moving out of his father’s house. 159. John Doe K is a resident of Nebraska. He is Doe 12’s minor son, and he visits the home owned by Doe 12 and Doe G regularly. Doe K owns a cell phone, and his father occasionally has “possession” of this phone while Doe K is visiting. He is concerned that the New Act subjects Doe K’s cell phone to search and seizure and constant monitoring by law enforcement. He is scared that he and his family will be targeted by vigilantes, even though his father was determined not to be a high risk to reoffend. Doe K’s claim is brought by Doe 12 on his behalf. 160. For all the Does, they will forever be affected by public notification via the State Patrol’s website. Once a registrant is listed, even accidentally or briefly, that person will forever
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be memorialized as a sex offender through websites such as familywatchdog.us and neighborhoodscan.com. 161. All registrants have expressed their concern that the registration information enumerated in Neb. Rev. Stat. § 29-4006 is nonexclusive, and that the State Patrol has the ability to expand the list of information they will have to provide. The Does are concerned that this unbridled discretion on the part of law enforcement will further impact their lives, in addition to the impact the law will have on employers, family members, roommates, etc. 162. All registrants have the added obligation to “timely update law enforcement of any of the information required to be provided by the act.” Neb. Rev. Stat. § 29-4008. 163. This means that registrants will have to constantly monitor the cell phone, computer, and other electronic communication devices owned by those around them that a registrant “possesses,” and then provide a timely15 update to law enforcement when those devices change.16
15 “Timely” is not defined in the New Act. 16 This is in addition to the obligation under Neb. Rev. Stat. § 29-4006(13) to inform law enforcement of any changes in the registrant’s email, instant message, chat room, or global unique identifier, and the domain names, blogs and websites which the registrant maintains or to which the registrant uploads any message or information within one working day.
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FIRST CAUSE OF ACTION - EX POST FACTO VIOLATION OF U.S. Constitution Article I § 10 UNDER 42 U.S.C § 1983 164. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 165. Pursuant to 42 U.S.C. § 1983, this claim is brought by Plaintiffs Doe 1 through 36 against all Defendants. 166. The events related to said Plaintiffs occurred before the enactment of the New Act. 167. The Nebraska Legislature intended the New Act to be punitive, based on its statutory construction, structure and design, and on statements made by the Legislature. 168. Even if the Legislature did not intend the New Act to be punitive, its purpose or effect is so punitive as to negate the Legislature's intent. 169. The New Act disadvantages said Plaintiffs, because it creates or enhances penalties that did not exist when said Plaintiffs’ offenses were committed. 170. The New Act creates and imposes retroactive criminal punishment for past acts, and consequently is an ex post facto law in derogation of the United States Constitution. 171. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
SECOND CAUSE OF ACTION - EX POST FACTO VIOLATION OF Nebraska Constitution Article I § 16 172. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 173. This claim is brought by Plaintiffs Doe 1 through 36 against all Defendants. 174. The Act violates the Nebraska prohibition against ex post facto punishment for the same reason that it violates the Constitution of the United States. 175. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
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THIRD CAUSE OF ACTION - DOUBLE JEOPARDY VIOLATION OF U.S. Constitutional Amendment V UNDER 42 U.S.C. § 1983 176. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 177. Pursuant to 42 U.S.C. § 1983, this claim is brought by Plaintiff Doe 1 through 36 against all Defendants. 178. Through the Legislature’s intent, the New Act is punitive and constitutes an additional punishment for said Plaintiffs’ offenses. 179. Also by its effect, the New Act is punitive and constitutes an additional punishment for said Plaintiffs offenses. 180. Such creation and enforcement of these additional punishments places said Plaintiffs in jeopardy of being twice punished for a single offense, in derogation of the Double Jeopardy Clause of the United States Constitution. 181. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
FOURTH CAUSE OF ACTION - DOUBLE JEOPARDY VIOLATION OF Nebraska Constitution Article I § 12
182. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 183. This claim is brought by Plaintiff Doe 1 through 36 against all Defendants. 184. The Act violates the Nebraska prohibition against double jeopardy for the same reason
that it violates the Constitution of the United States. 185. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this
constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
FIFTH CAUSE OF ACTION – CRUEL AND UNUSUAL PUNISHMENT VIOLATION OF U.S. Constitutional Amendment VIII UNDER 42 U.S.C. § 1983 186. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 187. Pursuant to 42 U.S.C. § 1983, this claim is brought by Plaintiff Doe 1 through 36 against
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all Defendants. 188. Through the Legislature’s intent and through its effects, the New Act is punitive and
permits punishment for said Plaintiffs that is both cruel and unusual. 189. Such creation and enforcement of the New Act places said Plaintiffs in risk of infliction
of cruel and unusual punishment, in derogation of the Cruel and Unusual Punishment Clause of the United States Constitution. 190. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
SIXTH CAUSE OF ACTION – CRUEL AND UNUSUAL PUNISHMENT VIOLATION OF Nebraska Constitution Article I § 9
191. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 192. This claim is brought by Plaintiff Doe 1 through 36 against all Defendants. 193. The Act violates the Nebraska prohibition against cruel and unusual punishment for the
same reason that it violates the Constitution of the United States. 194. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this
constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
SEVENTH CAUSE OF ACTION - UNREASONABLE SEARCH AND SEIZURE VIOLATION OF U.S. Constitutional Amendment IV UNDER 42 U.S.C. § 1983
195. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 196. Pursuant to 42 U.S.C. § 1983, this claim is brought by all Plaintiffs. 197. Said Plaintiffs have a reasonable and legitimate expectation of privacy in their residences,
computers, electronic communication devices, communications, and their respective persons. 198. The New Act authorizes the search and seizure and monitoring of said Plaintiffs’ residences, computers, electronic communication devices, and person without valid consent or prior judicial authorization by way of a warrant, supported probable cause and
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affidavit. 199. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this
constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
EIGHTH CAUSE OF ACTION - UNREASONABLE SEARCH AND SEIZURE VIOLATION OF Nebraska Constitution Article I § 7
200. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 201. This claim is brought by all Plaintiffs. 202. The Act violates the Nebraska prohibition against unreasonable search and seizure for the
same reason that it violates the Constitution of the United States. 203. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this
constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
NINTH CAUSE OF ACTION - DUE PROCESS VIOLATION OF U.S. Constitutional Amendment XIV UNDER 42 U.S.C. § 1983 204. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 205. Pursuant to 42 U.S.C. § 1983, this claim is brought by all Plaintiffs against all
Defendants. 206. The New Act is vague and ambiguous and fails to sufficiently define who is subject to the
Act, the conduct that is prohibited, information subject to registration, and the requirements under the Act with sufficient definiteness such that ordinary people can understand the obligations under the Act. 207. The New Act encourages arbitrary and discriminatory enforcement, does not permit flexibility or reasonable breadth, and does not use ordinary terms in common usage and understanding which permit adequate interpretation. 208. The New Act violates Substantive Due Process by infringing on fundamental right to defend one’s reputation, the integrity of a family, right to travel, right to earn a living, and the right to privacy of information, without adequate justification.
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209. The New Act eradicates fundamental rights but fails to provide adequate procedures. 210. The New Act fails to rationally further any legitimate government interest. 211. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this
constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
TENTH CAUSE OF ACTION - DUE PROCESS VIOLATION OF Nebraska Constitution Article I § 3 212. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 213. This claim is brought by all Plaintiffs against all Defendants. 214. The New Act violates the Due Process Clause of the Nebraska Constitution for the same reasons that it violates the Constitution of the United States. 215. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
ELEVENTH CAUSE OF ACTION - EQUAL PROTECTION VIOLATION OF U.S. Constitutional Amendment XIV UNDER 42 U.S.C. § 1983 216. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 217. Pursuant to 42 U.S.C. § 1983, this claim is brought by all Plaintiffs against all
Defendants. 218. The New Act infringes on those fundamental rights of said Plaintiffs previously
addressed. 219. The New Act is irrational, designed only to single out, target and burden an unpopular
group, and operates contrary to its intended purpose. 220. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this
constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
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TWELFTH CAUSE OF ACTION - EQUAL PROTECTION VIOLATION OF Nebraska Constitution Article I § 3
221. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 222. This claim is brought by all Plaintiffs against all Defendants. 223. The New Act violates the Equal Protection clause of the Nebraska Constitution for the
same reasons that it violates the Constitution of the United States. 224. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this
constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
THIRTEENTH CAUSE OF ACTION – SPECIAL LEGISLATION VIOLATION OF Nebraska Constitution Article III § 18
225. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 226. This claim is brought by all Plaintiffs against all Defendants. 227. The New Act violates the Special Legislation clause of the Nebraska Constitution by
creating an arbitrary and unreasonable method of classification, without reasonable distinction or substantial difference, creates classifications that are illusive and not real, based on distinctions without a substantial difference, and, notwithstanding the Legislature's punitive purpose in creating the class, there is no substantial difference of circumstances between those to suggest the expediency of diverse legislation. 228. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
FOURTEENTH CAUSE OF ACTION - FREEDOM OF SPEECH VIOLATION OF U.S. Constitutional Amendment I UNDER 42 U.S.C. § 1983 229. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 230. Pursuant to 42 U.S.C. § 1983, this claim is brought by all Plaintiffs. 231. The New Act violates the right to free speech guaranteed by the United States Constitution in that it suppresses speech by certain individuals from occurring, and
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criminalizes and prohibits speech in advance via social network websites, instant messaging, or chat rooms, thereby constituting a prior restraint. 232. The New Act is also vague and overbroad in its prohibition on speech, and it operates to chill other speech through the constant monitoring of electronic communication by law enforcement. 233. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
FIFTEENTH CAUSE OF ACTION - FREEDOM OF SPEECH VIOLATION OF Nebraska Constitution Article I § 5
234. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 235. This claim is brought by all Plaintiffs. 236. The New Act violates the right to free speech guaranteed by the Nebraska Constitution
for the same reasons that it violates the Constitution of the United States. 237. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this
constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
SIXTEENTH CAUSE OF ACTION - CONTRACTS CLAUSE VIOLATION OF U.S. Constitution Article I § 10 UNDER 42 U.S.C. § 1983 238. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 239. On information and belief, this claim is brought by Plaintiffs Doe 2, 3, 4, 7, 9 through 15, 17, 19 through 20, 22 through 27 and 28 through 36 against all Defendants pursuant to 42 U.S.C. § 1983. 240. Pursuant to Nebraska law, some Plaintiffs entered into a contract when they entered into a plea agreement for an offense. 241. As part of said agreement, the Plaintiffs understood that his or her obligation to register would be for a specific period of time and each would have an opportunity to submit evidence for community notification purposes.
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242. Said Plaintiffs reasonably relied on the registration duration requirements, and the particular registration period and tiered notification structure were consideration for said Plaintiffs to enter their pleas.
243. This understanding gave rise to a vested right in said Plaintiffs within the purview of the Contracts Clause of the United States Constitution.
244. The New Act will substantially impair said Plaintiffs preexisting contractual relationship with the State by imposing new terms which were not negotiated and agreed-to, and will operate to either significantly increase supervision by law enforcement in both nature and duration, and/or subject said Plaintiffs to community notification.
245. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
SEVENTEENTH CAUSE OF ACTION - CONTRACTS CLAUSE VIOLATION OF Nebraska Constitution Article I § 16
246. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 247. On information and belief, this claim is brought by Plaintiffs Doe 2, 3, 4, 7, 9 through 15,
17, 19 through 20, 22 through 27 and 29 through 36 against all Defendants. 248. The Act violates the Contracts Clause of the Nebraska Constitution for the same reason
that it violates the Constitution of the United States. 249. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this
constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
EIGHTEENTH CAUSE OF ACTION - SEPARATION OF POWERS VIOLATION OF Nebraska Constitution Article II § 1
250. Plaintiffs incorporate by reference all allegations in the preceding paragraphs. 251. This claim is brought by Plaintiffs Doe 1 through 36 against all Defendants. 252. The New Act violates the separation of powers mandated by the Nebraska Constitution as
it alters previous final judicial orders, operates to vacate existing judgments and
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sentences regarding the determination of registrant’s risk to reoffend, effectively reclassifies all registrants as Tier III registrants with a high risk to reoffend, and reverses final court orders relating to the length of time that each offender must register. 253. Each said Plaintiff has been, or will imminently be, subject to irreparable injury by this constitutional violation, and the Plaintiffs are entitled to declaratory and injunctive relief.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray the Court grant them the relief as requested:
A. A declaration that LB 97 and LB 285 violate, both facially and as applied, the ex post facto clause of the United States Constitution;
B. A declaration that LB 97 and LB 285 violate, both facially and as applied, the ex post facto clause of the Nebraska Constitution;
C. A declaration that LB 97 and LB 285 violate, both facially and as applied, the double jeopardy clause of the United States Constitution;
D. A declaration that LB 97 and LB 285 violate, both facially and as applied, the double jeopardy clause of the Nebraska Constitution;
E. A declaration that LB 97 and LB 285 violate, both facially and as applied, the cruel and unusual punishment clause of the United States Constitution;
F. A declaration that LB 97 and LB 285 violate, both facially and as applied, the cruel and unusual punishment clause of the Nebraska Constitution;
G. A declaration that LB 97, as amended by LB 285, violates, both facially and as applied, the search and seizure clause of the United States Constitution;
H. A declaration that LB 97, as amended by LB 285, violates, both facially and as applied, the search and seizure clause of the Nebraska Constitution;
I. A declaration that LB 97 and 285 violate, both facially and as applied, the due process clause of the United States Constitution;
J. A declaration that LB 97 and 285 violate, both facially and as applied, the due process clause of the Nebraska Constitution;
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K. A declaration that LB 97 and 285 violate, both facially and as applied, the equal protection clause of the United States Constitution;
L. A declaration that LB 97 and 285 violate, both facially and as applied, the equal protection clause of the Nebraska Constitution;
M. A declaration that LB 97 and 285 violate, both facially and as applied, the special legislation clause of the Nebraska Constitution;
N. A declaration that LB 97 and 285 violate, both facially and as applied, the freedom of speech guaranteed by the United States Constitution;
O. A declaration that LB 97 and 285 violate, both facially and as applied, the freedom of speech guaranteed by the Nebraska Constitution;
P. A declaration that LB 97 and 285 violate, both facially and as applied, the contracts clause of the United States Constitution;
Q. A declaration that LB 97 and 285 violate, both facially and as applied, the contracts clause of the Nebraska Constitution;
R. A declaration that LB 97 and 285 violate, both facially and as applied, the separation of powers doctrine of the Nebraska Constitution;
S. A preliminary injunction prohibiting each Defendant from enforcing LB 97 and LB 285 during the pendency of this matter;
T. A permanent injunction prohibiting each Defendant from enforcing LB 97 and LB 285; U. Reasonable attorney fees; and V. Other and further relief the Court deems just and equitable.
JURY TRIAL DEMANDED Plaintiffs demand a trial by jury for all causes of action.
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DATED: March 15, 2010.

John Doe and Jane Doe 1 through 36, John Doe and Jane Doe A through K, Doe 12 on behalf of Does H and K, minors, and Doe G on behalf of Doe I, minor,
Plaintiffs,
BY: /s/ Stuart J. Dornan Stuart J. Dornan, #18553 Jason E. Troia, #21793 Rodney C. Dahlquist, Jr., #23912 Joshua W. Weir, #23492 Thomas J. Monaghan, #12874 Dornan, Lustgarten & Troia, PC LLO 1403 Farnam Street, Suite 232 Omaha, Nebraska 68102 (402) 884-7044 Attorneys for Plaintiffs

CERTIFICATE OF SERVICE
I hereby certify that on March 15, 2010, I electronically filed the foregoing document with the Clerk of the District Court using the CM/ECF system which sent notification to all CM/ECF participants in above captioned matter.
And I hereby certify that I have mailed by United States Postal Service the document to the following non CM/ECF participants:
N/A
BY: s/ Stuart J. Dornan STUART J. DORNAN, #18553

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 8:09-cv-00456-RGK-CRZ Doc # 354 Filed: 08/16/10 Page 1 of 81 - Page ID # 4020

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

JOHN and JANE DOE 1-36, et al.,

)

Plaintiffs,

)

v.

)

STATE OF NEBRASKA, et al.,

)

Defendants.

)

JOHN DOE,

)

Plaintiff,

)

v.

)

NEBRASKA STATE PATROL, et al., )

Defendants.

)

JOHN DOE,

)

Plaintiff,

)

v.

)

STATE OF NEBRASKA, et al.,

)

Defendants.

)

JOHN DOE,

)

Plaintiff,

)

v.

)

STATE OF NEBRASKA, et al.,

)

Defendants.

)

8:09CV456 4:09CV3266 4:10CV3004 4:10CV3005

MEMORANDUM AND ORDER
At issue in these consolidated cases is the constitutionality of amendments to Nebraska’s Sex Offender Registration Act that became operative January 1, 2010.1 On cross-motions for summary judgment, I find there are genuine issues of material fact regarding three new sections of the Act which will necessitate a trial, but in all other respects I find as a matter of law that the legislation does not violate either the United States Constitution or the Nebraska Constitution.

1 On December 30, 2009, however, I preliminarily enjoined Defendants from enforcing certain provisions of the amended Act against convicted sex offenders who have completed their criminal sentences and who are not on probation, parole, or court-ordered supervision.

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BACKGROUND
Case No. 8:09CV456 was filed in this court on December 16, 2009, by twenty convicted sex offenders (John and Jane Does 1-20) and thirteen of their spouses, children, parents, and employers (John and Jane Does A-K). In an amended complaint filed on March 15, 2010, sixteen additional convicted sex offenders (John Does 21-36) were added as Plaintiffs. All Plaintiffs allegedly reside in Nebraska. Named as Defendants are the State of Nebraska, the Nebraska Attorney General, the Nebraska State Patrol and its Superintendent, county attorneys and sheriffs for each of Nebraska’s ninety-three counties, and police chiefs for the cities of Lincoln, Omaha, Papillion, Fremont, Bennington, Ralston, Columbus, and York, Nebraska. Individual Defendants are only sued in their official capacity.
Plaintiffs in Case No. 8:09CV456 allege that Nebraska’s Sex Offender Registration Act (SORA), as amended, violates several provisions of the United States Constitution, including: (1) the Ex Post Facto Clause of Article I, § 10; (2) the Fifth Amendment’s Double Jeopardy Clause; (3) the Eighth Amendment’s prohibition against cruel and unusual punishment; (4) the Fourth Amendment’s prohibition against unreasonable searches and seizures; (5) the Fourteenth Amendment’s Due Process Clause; (6) the Fourteenth Amendment’s Equal Protection Clause; (7) the First Amendment’s guarantee of free speech; and (8) the Contracts Clause of Article I, § 10. Plaintiffs also allege violations of eight corresponding provisions of the Nebraska Constitution, plus violations of Article III, § 18, which prohibits special legislation, and Article II, § 1, which mandates the separation of powers.
Case No. 4:09CV3266 was filed in the District Court of Douglas County, Nebraska, on December 24, 2009, by a convicted sex offender (John Doe) who allegedly is employed in Douglas County. On December 28, 2009, the action was removed to federal court by Defendants, who include the Nebraska State Patrol and its Superintendent, the Nebraska Attorney General, the Douglas County Attorney, the Douglas County Sheriff, and the Omaha Police Chief.
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Plaintiff’s complaint in Case No. 4:09CV3266 is substantially similar to the amended complaint filed in Case No. 8:09CV456, except that it does not include claims that the amended Act violates the Equal Protection Clause, constitutes special legislation, or violates the Contracts Clause.
Case No. 4:10CV3004 was filed in the District Court of Lincoln County, Nebraska, on January 4, 2010, by an individual (John Doe) who allegedly is required by the amended Act to register as a sex offender in Lincoln County. On January 7, 2010, the action was removed to federal court by Defendants, who include the State of Nebraska, the Nebraska Attorney General, the Nebraska State Patrol and its Superintendent, the Lincoln County Attorney, the Lincoln County Sheriff, and the Chief of Police for the City of North Platte, Nebraska.
Plaintiff in Case No. 4:10CV3004 does not claim any violations of the United States Constitution, but he alleges the amended Act violates the same eight provisions of the Nebraska Constitution that are involved in Case No. 4:09CV3266, namely: (1) Article I, § 16 (ex post facto law); (2) Article I, § 12 (double jeopardy); (3) Article I, § 9 (cruel and unusual punishment); (4) Article I, § 7 (unreasonable search and seizure); (5) Article I, § 3 (due process); (6) Article I, § 5 (free speech); (7) Article II, § 1 (separation of powers); and (8) Article I, § 16 (contracts clause).
Case No. 4:10CV3005 was filed in the District Court of Sarpy County, Nebraska, on December 31, 2009, by a convicted sex offender who allegedly resides in Sarpy County. Defendants removed the action to federal court on January 8, 2010. Defendants include the State of Nebraska, the Nebraska Attorney General, the Nebraska State Patrol and its Superintendent, the Sarpy County Attorney, and the Sarpy County Sheriff.
As in the preceding case, Plaintiff in Case No. 4:10CV3005 only alleges violations of the Nebraska Constitution. His complaint contains seven causes of action which are identical to the first seven claims alleged in Case No. 4:10CV3004.
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These four cases were consolidated for all purposes, including trial and discovery, on January 21, 2010.2 Case No. 8:09CV456 was designated as the “lead case.” Because the amended complaint filed in Case No. 8:09CV456 contains every constitutional claim that is alleged in the other three cases, in my discussion of those claims I will cite only to that pleading.
Plaintiffs in Case Nos. 8:09CV456, 4:09CV3266, and 4:10CV3005 are represented by the same counsel, and have filed a joint response to Defendants’ motion for summary judgment.3 They have also jointly filed a motion for summary judgment against Defendants. Plaintiff in Case No. 4:10CV3004 is represented by different counsel, who has neither responded to Defendants’ motion for summary judgment nor filed a cross-motion.4
2 Two other actions, Case Nos. 4:09CV3258 and 4:10CV3003, were subject to the consolidation order, but they were dismissed with prejudice for non-prosecution on July 16, 2010.
3 Defendants originally moved for summary judgment on February 25, 2010. After the amended complaint was filed in Case No. 8:09CV456, Defendants filed an amended motion for summary judgment in all cases, on April 6, 2010. The original motion for summary judgment in each case will be denied without prejudice, as moot.
4 The failure to file an opposing brief alone is not considered confession of Defendant’s motion. See NECivR 56.1(b)(2). However, “[w]hen a motion for summary judgment is properly made and supported, and . . . the opposing party does not . . . respond [by affidavits or otherwise setting out specific facts showing a genuine issue for trial], summary judgment should, if appropriate, be entered against that party.” Fed. R. Civ. P. 56(e)(2). In determining whether summary judgment is appropriate, a court must look at the record and any inferences to be drawn from it in the light most favorable to the nonmovant. Torgerson v. City of Rochester, 605 F.3d 584, 594 (8th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Thus, the non-responding Plaintiff is entitled to the benefit of all evidence filed by the other Plaintiffs.
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The Challenged Legislation
Plaintiffs seek to prohibit enforcement of parts of Legislative Bills 97 (LB 97) and 285 (LB 285), which were passed by the Nebraska Legislature and approved by the Governor in May 2009. LB 97 was enacted first.
Among other things, LB 97 amended Sections 29-4001, 29-4003, 29-4006, 29-4007, and 29-4008 of Nebraska’s Sex Offender Registration Act (SORA). See Nebraska Laws 2009, LB 97 §§ 23, 25, 26, 27, 28. LB 97 also created two new statutes, which are codified as Neb. Rev. Stat. §§ 28-322.05 and 29-4001.01. See Nebraska Laws, LB 97, §§ 14, 24. Section 28-322.05 is a new criminal statute (unlawful use of the Internet by a prohibited sex offender), while Section 29-4001.01 is a new definitional statute for SORA.
LB 285 made further amendments to SORA Sections 29-4003 (applicability of the Act), 29-4006 (registration format), and 29-4007 (notification), and also amended SORA Sections 29-4004 (registration procedure), 29-4005 (registration duration), 25-4009 (information not confidential), 29-4011 (violation penalties), and 29-4013 (rules and regulations). See Nebraska Laws 2009, LB 285, §§ 4 through 11. In addition, LB 285 amended Sections 14 and 24 of LB 97. See Nebraska Laws 2009, LB 285, §§ 1, 3. Finally, LB 285 outright repealed SORA Section 29-4010 (expungement procedure). See Nebraska Laws 2009, LB 285 , § 17.
Appended to Defendants’ brief is a table (“Appendix II, Sex Ofeender [sic] Registration Law Comparison”) that summarizes the amendments made to SORA by LB 97 and LB 285. (Filing 339-2) For ease of reference, I have attached the table to this opinion as Attachment B.5
5 With the following additions and corrections, Plaintiffs admit the accuracy of Defendants’ Appendix II:
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Defendants have also appended to their brief a table comparing Nebraska’s registration requirements to federal requirements established by Title I of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, also known as the Sex Offender Registration and Notification Act (“SORNA”).6 This detailed and helpful table (“Appendix I, Sex Ofeender [sic] Registration Law Comparison - Adam Walsh Act”) is attached to this opinion as Attachment C.7
a. Previously, Neb. Rev. Stat. § 29-4004(5) required registrants residing in another state to report employment vocation and school attendance. [Appendix II], p. 4.
b. Previously, Neb. Rev. Stat. § 29-4005(2) required lifetime registration for a prior sexual offense when the sentencing court found a prior conviction for a registrable offense. [Appendix II], p. 7-8.
c. The registration information “shall include, but not be limited to” the information listed by Defendants. [Appendix II], p. 9-10.
d. Previously, there was no comparable search, seizure, and monitoring provision for registrants. [Appendix II], p. 11.
e. Previously, Neb. Rev. Stat. § 29-4009(7) permitted the release of relevant information necessary for the protection of the public. [Appendix II], p. 14-15.
f. The current version of Neb. Rev. Stat. § 29-4009(1)(d) addresses “remote communication devices,” not computers and electronic communication devices identifiers and addresses. [Appendix II], p. 14.
g. Neb. Rev. Stat. § 29-4008 was modified to include strict liability for failure to provide or timely update law enforcement of any registration information.
h. Neb. Rev. Stat. § 29-4010 was repealed, eliminating the possibility to expunge the registry records upon successful completion.
(Filing 345, CM/ECF pp. 12-13, ¶ 2.)
6 SORNA (including two provisions enacted in 2008) is codified at 42 U.S.C. §§ 16901-16991.
7 Plaintiffs have admitted the accuracy of Defendants’ Appendix I. (Filing 345, CM/ECF p. 14, ¶ 13)
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SORNA, which was enacted on July 27, 2006, requires every jurisdiction to maintain a sex offender registry conforming to federal requirements or else lose federal funding. See 42 U.S.C. §§ 16912, 16925. As also required by SORNA, 42 U.S.C. §16912(b), the Attorney General of the United States has published guidance to interpret and implement the law. See The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. § 38030-01 (July 2, 2008). The National Guidelines make it clear that SORNA sets a floor and not a ceiling for the states. That is, while the states must enact the minimum federal requirements, “SORNA does not bar jurisdictions from adopting additional regulation of sex offenders for the protection of the public, beyond the specific measures that SORNA requires.” National Guidelines, at 38034.
The Attorney General has also made it clear that SORNA applies to sex offenders whose convictions occurred prior to the adoption of SORNA, stating:
The applicability of the SORNA requirements is not limited to sex offenders whose predicate sex offense convictions occur following a jurisdiction’s implementation of a conforming registration program. Rather, SORNA’s requirements took effect when SORNA was enacted on July 27, 2006, and they have applied since that time to all sex offenders, including those whose convictions predate SORNA’s enactment. See 72 FR 8894, 8895-96 (Feb. 28, 2007); 28 CFR 72.3. The application of the SORNA standards to sex offenders whose convictions predate SORNA creates no ex post facto problem “because the SORNA sex offender registration and notification requirements are intended to be non-punitive, regulatory measures adopted for public safety purposes, and hence may validly be applied (and enforced by criminal sanctions) against sex offenders whose predicate convictions occurred prior to the creation of these requirements. See Smith v. Doe, 538 U.S. 84 (2003).” 72 FR at 8896.
National Guidelines, at 38046.
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DISCUSSION
In considering a motion for summary judgment the court does not weigh the evidence, make credibility determinations, or attempt to discern the truth of any factual issue. Great Plains Real Estate Development, L.L.C. v. Union Central Life Ins. Co., 536 F.3d 939, 943-94 (8th Cir. 2008). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Sensient Technologies Corp. v. SensoryEffects Flavor Co., __ F.3d __, 2010 WL 2836624, *2 (8th Cir. July 21, 2010) (quoting Fed.R.Civ.P. 56(c)). Disputes that are not “genuine,” or that are about facts that are not “material,” will not preclude summary judgment. Eng v. Cummings, McClorey, Davis & Acho, PLC, __ F.3d __, 2010 WL 2696746, *3 (8th Cir. July 9, 2010).
The discussion which follows is in two parts: In Part One, I will identify and discuss genuine disputes that exist regarding three sections of Nebraska’s law that diverge from SORNA’s minimum requirements, and will also grant in part Plaintiffs’ motion for summary judgment regarding one of those sections.8 In Part Two, I will analyze the remainder of the new law and explain why it is constitutional.
As a preliminary matter, however, I must address Defendants’ contention that Plaintiffs’ claims as against the State of Nebraska and the Nebraska State Patrol are barred by the Eleventh Amendment to the United States Constitution, which grants states and their agencies immunity from suit in federal court.9 See Pennhurst State
8 I determine that Neb. Rev. Stat. § 29-4006(2) violates the Fourth Amendment rights of Plaintiffs who were previously convicted of sex crimes but who were not on probation, parole or court-monitored supervision on or after January 1, 2010.
9 Plaintiffs do not contend that immunity extends to the Nebraska Attorney General or the Superintendent of the Nebraska State Patrol.
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Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). A state waives immunity when it voluntarily removes an action to federal court. See Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 618-623 (2002). Defendants removed Case Nos. 4:09CV3266, 4:10CV3004, and 4:10CV3005 to federal court and filed motions on December 28 and 29, 2009, to consolidate Case No. 8:09CV456 with Case Nos. 4:09CV3266 and 4:09CV3258. (Filings 82, 88) At a hearing on January 21, 2010, Defendants also requested consolidation of the other cases. (Filing 308 (audio file), at 9:48-10:05.) I conclude that by these voluntary actions the State of Nebraska and the Nebraska State Patrol unequivocally waived their Eleventh Amendment immunity from suit in federal court.
PART ONE–THREE SECTIONS OF NEBRASKA’S NEW LAW ARE EITHER UNCONSTITUTIONAL OR A TRIAL IS REQUIRED TO DETERMINE THEIR CONSTITUTIONALITY
Three sections of Nebraska’s new law are either unconstitutional or a trial is required to determine their constitutionality. Those sections are:
(1) Neb. Rev. Stat. § 29-4006(1)(k)&(s) (West, Operative Jan. 1, 2010) (requiring disclosure of registrant’s remote communication device identifiers and addresses together with email addresses, instant messaging identifiers, chat room identifiers, global unique identifiers, and other Internet communication identifiers that the registrant uses or plans to use, all domain names registered by the registrant, and all blogs and Internet sites maintained by the registrant or to which the registrant has uploaded any content or posted any messages or information);
(2) Neb. Rev. Stat. § 29-4006(2) (West, Operative Jan. 1, 2010) (requiring registrants to consent to search and installation of monitoring hardware and software); and
(3) Neb. Rev. Stat. § 28-322.05 (West, Operative Jan. 1, 2010) (making it a crime to use Internet social networking sites or instant messaging or chat room services accessible by minors by certain persons required to register under the Sex Offender Registration Act).
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The constitutional provisions that are violated or may be violated are primarily the Ex Post Facto Clause (retroactive punishment), the First Amendment (freedom of speech), the Fourth Amendment (unreasonable search) and the Due Process Clause of the Fourteenth Amendment (vagueness of a criminal statute).10 A more detailed explanation follows.
I.
First and Second Causes of Action–Ex Post Facto Claim–Regarding Neb. Rev. Stat. § 29-4006(1)(k)&(s) (West, Operative Jan. 1, 2010),
Neb. Rev. Stat. § 29-4006(2) (West, Operative Jan. 1, 2010), and Neb. Rev. Stat. § 28-322.05 (West, Operative Jan. 1, 2010)
The Constitution, art. I, § 10, cl. 1, provides, among other things, that: “No State shall . . . pass any . . . ex post facto Law . . . .” These laws are challenged on the basis of the Ex Post Facto Clause of the Constitution and the Nebraska equivalent. (E.g., Id. at CM/ECF pp. 15, 20, 51.) Plaintiffs bring a facial and an as-applied challenge. (Filing 329 at CM/ECF p. 60.)
Either in kind or degree, these three statutes are foreign to the federal Sex Offender Registration and Notification Act (SORNA).11 Initially, Neb. Rev. Stat. §
10Plaintiffs also attack these statutory provisions on numerous other grounds. To the degree that I grant summary judgment in favor of Plaintiffs, I decline to decide claims not mentioned in the text as it is unnecessary to do so. To the degree that I require a trial, and deny the summary judgment motions of Plaintiffs and Defendants, the other claims not mentioned in the text regarding these statutes will also be resolved after trial. The foregoing said, except for the claims discussed in the text, most (perhaps all) of Plaintiffs’ other claims appear to be quite weak.
11See Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 590 (2006). Title I of the Act, entitled the Sex Offender Registration and Notification Act (“SORNA”), creates a national sex offender registry law. SORNA, together with two provisions added in 2008, that are codified with
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29-4006(1)(k)&(s) requires an offender to disclose numerous details regarding his or her use of the Internet, particularly including “all blogs . . . to which the person has uploaded any content or posted any messages or information.” SORNA has a counterpart but it is far more limited. See 42 U.S.C. § 16915a; The National Guidelines for Sex Offender Registration, 73 Fed. Reg. § 38030-01, Part VI (July 2, 2008), available at 2008 WL 2594934, *38055 (requiring that the information included in the registries “include all designations used by sex offenders for purposes of routing or self-identification in Internet communications or postings”) (emphasis added). In addition, Neb. Rev. Stat. § 29-4006(2) imposes a consent to search and monitoring requirement on offenders who use the Internet. The consent to search and monitoring requirement apparently permits law enforcement officers to search homes, businesses and computers and install monitoring equipment on computers without any suspicion of criminal activity. Failure to give “consent” appears to be a felony. SORNA has no counterpart. Still further, Neb. Rev. Stat. § 28-322.05 makes it a crime for certain offenders to use social networking sites and instant messaging or chat room services that allow a person under 18 to access or use such sites or services.12 SORNA has no counterpart.
I conclude that a trial is required to determine whether these three statutes, alone or collectively, violate the Ex Post Facto Clause of the Constitution (and the Nebraska equivalent) for (1) offenders who had served their time and were no longer under criminal justice supervision on January 1, 2010; and (2) offenders who had been sentenced prior to January 1, 2010, but who remained under criminal justice supervision on or after January 1, 2010.13 A trial is required for both the facial and as
SORNA, may be found at 42 U.S.C. §§ 16901-16991.
12Definitions pertinent to this statute are found at Neb. Rev. Stat. § 29-4001.01 (West, Operative Jan. 1, 2010).
13There is some question about whether any of the Plaintiffs fit this later category and there is some question whether any Plaintiff will be under criminal justice supervision at the time of trial. See the discussion of these issues in the
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applied Ex Post Facto challenges brought by Plaintiffs. Accordingly, the motions for summary judgment submitted by Plaintiffs and Defendants will be denied. A brief explanation follows.
In upholding SORNA against an Ex Post Facto challenge, the United States Court of Appeals for the Eighth Circuit has outlined the proper analysis. United States v. May, 535 F.3d 912 (8th Cir. 2008) (the application of the registration requirements of SORNA to a defendant who was registered as a sex offender pursuant to state law before SORNA’s enactment, and who traveled to another state after SORNA’s enactment, did not violate the Ex Post Facto Clause; the statute did not punish an individual for previously being convicted of a sex crime, but rather for not registering as a sex offender, or failing to update his registration after traveling in interstate commerce).
The analytic outlined by the Eighth Circuit is as follows:
1. Determine whether the legislature intended the subject statute to impose punishment for a pre-existing crime. If so, the statute violates the Ex Post Facto Clause.
2. If the legislative intent was to enact a civil and non-punitive regulatory scheme, determine whether the statute is so punitive either in purpose or effect as to negate the legislative intention to deem it civil. If so, the statute violates the Ex Post Facto Clause. However, only the “clearest” proof will suffice in this instance.
Id. at 919-920 (citations omitted).
analysis of Plaintiffs’ Fourth Amendment claims. Counsel should follow my directions set out in that discussion regarding standing, mootness and ripeness questions as those questions relate to these Ex Post Facto claims.
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As to the first level of analysis suggested by the Court of Appeals, there is evidence that the Nebraska legislator14 who authored these (and other) provisions stated that he doubted his own objectivity and therefore his suitability to introduce this legislation. The legislator expressed “rage” and “revulsion” regarding persons who have “these convictions.” In particular, while commenting upon recidivism, he stated that he did not “buy” the idea of “rehabilitation” or that “people could change . . . [i]n [this] area” and he did not “like the odds” that registrants would offend again. (Filing 319-3 at CM/ECF pp. 3-5, 14-16.)15 Inasmuch as these statutory provisions are foreign to SORNA, and the foregoing comments, when read together with the far reaching and novel substance of these statutes, could be characterized as punitive in nature regarding offenders who had been sentenced and who had completed their supervision prior to the effective date or who had been sentenced prior to the effective date but remain under supervision thereafter,16 I conclude that a trial is necessary to
14LB 97 §§ 14, 26 (2009) contained the provisions noted in the text. See Slip Law Copy available at http//:nebraskalegislature.gov/bills (use “LB 97” and “101st Legislature 1st and Second Sessions” as search terms). Senator Lautenbaugh was the “[p]rincipal [i]ntroducer” (filing 319-3 at CM/ECF p. 1) of LB 97 and he was asked by the Nebraska Attorney General to introduce the bill. (Filing 319-3 at CM/ECF p. 4.)
15These are not stray remarks. They cannot be dismissed as the rants of a rogue legislator. They were made by the man who was the principal sponsor of the challenged statutes and the specially chosen designate of the Nebraska Attorney General.
16A law violates the Ex Post Facto Clause when it applies to events occurring before the law’s enactment and the law disadvantages the offender, such as by practically increasing the punishment the offender was subject to on the date of enactment. See, e.g., Lynce v. Mathis, 519 U.S. 433, 441 (1997) (a statute retroactively canceling provisional release credits resulting in re-incarceration of the offender violated the Ex Post Facto Clause).
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determine whether the legislature intended these three statutes to impose punishment such that these statute violate the Ex Post Facto Clause.17
As to the second level of analysis suggested by the Court of Appeals, these three provisions, apparently unique to the American legal system, are obviously onerous. I also conclude that a trial is necessary to determine whether these statutes (separately or collectively) are so punitive either in purpose or effect as to negate any legislative intention to deem them civil.
In short, the factual record produced by Plaintiffs and Defendants in support of their motions is both lacking in detail and in dispute as to material matters. Therefore, Plaintiffs’ Ex Post Facto claims regarding these three statutes require a trial. An example will illustrate the point.
Factually, both sides have failed to produce a record that would allow me to determine how Neb. Rev. Stat. § 28-322.05 (making it a crime for certain offenders to use social networking sites and instant messaging or chat room services that allow a person under 18 to access or use such site or service) would actually impact particular Plaintiffs or offenders more generally. Whether the challenge is “asapplied” or “facial,” I must understand, as a factual matter, how the statute works. The parties have failed to give me an undisputed record upon which to judge that question. Moreover, my independent research suggests that § 28-322.05 may have far reaching (and, perhaps, unintended) consequences. I have attached to this opinion Attachment A.18 It gives numerous examples of sites that might plausibly be banned for offenders subject to the criminal provisions of Neb. Rev. Stat. § 28-322.05. At
17To be clear, it would be impossible to conclude that the entirety of Nebraska’s new legislation was intended to be punitive in nature. In general, the record adequately establishes that Nebraska mainly intended to amend its law to comply with SORNA.
18Attachment A is solely intended to illustrate the void in the summary judgment record and nothing more. It is up to counsel to present the facts.
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trial, the parties would be well-advised to present evidence regarding how the ban works and how far it extends. A similarly detailed factual exposition of both the workings and reach of the other statutes will also be required at trial in order to fairly judge the Ex Post Facto claims and defenses.
II.
Seventh and Eighth Causes of Action–Fourth Amendment–Regarding Neb. Rev. Stat. § 29-4006(2) (West, Operative Jan. 1, 2010)
Plaintiffs attack Neb. Rev. Stat. §29-4006(2) and the “consent to search” and “consent to monitoring” requirements. Plaintiffs claim that these provisions violate the Fourth Amendment and Nebraska’s equivalent constitutional provision. (Filing 329 at CM/ECF pp. 15-19, 53-54.) They bring a facial and an as-applied challenge. (Id. at CM/ECF p. 59.)
A person who is required to register must supply that “person’s remote communication device identifiers and addresses, including, but not limited to, all global unique identifiers, serial numbers, Internet protocol addresses, telephone numbers, and account numbers specific to the device[.]” Neb. Rev. Stat. § 294006(1)(k). A registrant must also supply:
All email addresses, instant messaging identifiers, chat room identifiers, global unique identifiers, and other Internet communication identifiers that the person uses or plans to use, all domain names registered by the registrant, and all blogs and Internet sites maintained by the person or to which the person has uploaded any content or posted any messages or information.
Neb. Rev. Stat. § 29-4006(1)(s).
Providing the foregoing information then triggers a broad “consent to search” and “consent to monitoring” requirement. That is:
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When the person provides any information under subdivision (1)(k) or (s) of this section, the registrant shall sign a consent form, provided by the law enforcement agency receiving this information, authorizing the:
(a) Search of all the computers or electronic communication devices possessed by the person; and (b) Installation of hardware or software to monitor the person’s Internet usage on all the computers or electronic communication devices possessed by the person.
Neb. Rev. Stat. § 29-4006(2).
A refusal to provide “consent” is a Class IV felony and a refusal is punishable by a prison sentence. Neb. Rev. Stat. § 29-4011(1) (“Any person required to register under the Sex Offender Registration Act who violates the act is guilty of a Class IV felony.”) Such a felony is punishable by imprisonment of up to five years and a fine of up to $10,000. Neb. Rev. Stat. § 28-105(1) (West, 2009).
A. Persons Not Presently Under Probation, Parole or Court-Monitored Supervision
1. Search
Defendants concede that the “consent to search” provisions are unconstitutional regarding offenders who are no longer under supervision.19 To be specific, “Defendants acquiesce to entry of a permanent injunction prohibiting enforcement of the consent to search provision set forth in Neb. Rev. Stat. §29-4006(2) as against
19As a factual matter, there is no doubt that many of the Plaintiffs fit into this category; that is, many Plaintiffs were once on probation, parole or court-monitored supervision and must register as “sex offenders,” but were not on probation, parole or court-monitored supervision at the time this provision became effective on January 1, 2010. (E.g., filing 330 at CM/ECF p. 1, Declaration of Doe 21: “In 2006, I was found guilty of third degree sexual assault . . . following a trial. . . . . I received a two-year probation sentence and was released after one year.”)
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individuals no longer on probation, parole, or other court-monitored supervision.” (Filing 337 at CM/ECF p. 12.)20
Defendants’ concession is well-founded because this portion of Nebraska’s law clearly violates the Fourth Amendment rights of persons who are not presently on probation, parole or court-monitored supervision. See Doe v. Marion County, 566 F. Supp. 2d 862, 883 (S.D. Ind. 2008)21 (holding requirement in Indiana sex and violent offender registration statute that offenders not currently on parole or probation consent to warrantless searches of personal computers or devices with Internet capability at any time, or be subject to felony prosecution, violated Fourth Amendment and stating that Indiana’s legislature had “taken an unprecedented step in stripping plaintiffs of their right to be secure in their homes, ‘papers,’ and personal effects”) Accordingly, summary judgment is granted in favor of Plaintiffs regarding those Plaintiffs who were not on probation, parole or court-monitored supervision on January 1, 2010.
2. Monitoring
Defendants apparently do not concede that § 29-4006(2)(b) (providing that the execution of the consent also authorizes installation of hardware or software to monitor the person’s Internet usage on all the computers or electronic communication devices possessed by that person) is unconstitutional as to persons who are no longer on probation, parole or court-monitored supervision. During the preliminary injunction
20Nebraska’s new law contains a severability clause. A slightly more detailed discussion of this severability provision may be found in the preliminary injunction ruling. (Filing 92 at CM/ECF p. 12, n.8)
21The author of this opinion, Judge David Hamilton, was elevated to the United States Court of Appeals for the Seventh Circuit on November 23, 2009. Federal Judicial Center, History of the Federal Judiciary, available at http://www.fjc.gov/history/home.nsf (click on “Judges of the United States Courts” and “Biographical Directory of Federal Judges” and insert search term “Hamilton, David Frank”).
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hearing, the following exchange took place between the undersigned and counsel for Defendants:
THE COURT: . . . [F]or those plaintiffs who are not presently on probation or parole, including those who are not subject to a lifetime of supervision, the State of Nebraska does not -- does not object to the imposition of a preliminary injunction with respect to the consent to search requirement?
MR. COOKSON: That’s correct, Your Honor.
THE COURT: Okay. That concession does not extend, as I understand it, to the -- to the -- to the monitoring question, the installation of software and hardware?
MR. COOKSON: That’s correct, Your Honor.
THE COURT: Do you have any case law to support the -- the point of view that that particular provision is...
MR. COOKSON: Yes, just one second, Your Honor. That would be on page 23.
THE COURT: Uh-huh.
MR. COOKSON: And 24 of our brief.
THE COURT: Yeah.
MR. COOKSON: It is --
THE COURT: Is there any federal case law that says that, for someone who is not on probation or parole, that you can require that they consent to the installation of software or hardware on their computers?
MR. COOKSON: No, Your Honor. I believe that's a first impression issue.
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(Filing 326 at CM/ECF p. 10.)
Neb. Rev. Stat. § 29-4006(2)(b) is plainly unconstitutional under the Fourth Amendment as it pertains to persons who are no longer on probation, parole or courtmonitored supervision. Without a “consent to search,” Nebraska would have no ability to enter homes or business or other places where Plaintiffs have a reasonable expectation of privacy or to “[i]nstall[] . . . hardware or software to monitor the person’s Internet usage on all the computers or electronic communication devices possessed by the person.” In short, a cop would have to search for computers and then (at least to some degree) search in computers22 to install monitors. Doe, 566 F. Supp. 2d at 881 (“[I]f the defendants’ intended monitoring of the plaintiffs’ computers and internet use would not amount to a search under the Fourth Amendment, then the defendants do not need [the challenged statute] or the plaintiffs’ consent at all”).
Thus, the identical Fourth Amendment analysis that drove Judge Hamilton’s decision in Doe, id. at 874, 878-88, applies equally to the “monitoring” provision of Nebraska’s statute. When that analysis is applied, this provision of Nebraska law fails to meet the requirements of the Fourth Amendment because (1) it allows entry by law enforcement officers into places where there is a reasonable expectation of privacy by means of a coerced consent (2) followed by the installation of monitoring equipment on property for which there is a reasonable expectation of privacy by means of a coerced consent (3) without a warrant issued by a neutral judge (4) and without a showing of probable cause. Id. at 874. (“[t]he Fourth Amendment protects the privacy of Americans by placing a neutral judicial officer between the police and the privacy of the home and papers (and now computers), by requiring a warrant based on probable cause, and by requiring that the warrant be specific. . . . To suggest that removing a neutral judicial officer as a barrier does not significantly impair a citizen’s privacy in
22This search might occur by actually looking at the guts of the computer or, under certain circumstances, by using technology to do the same thing. In either case, the computer would be searched.
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his home is to imply that the warrant requirement is no big deal, and that it imposes no meaningful restraints upon law enforcement. The ‘most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek exemption ... that the exigencies of the situation made that course imperative.’ ”) (citations omitted).
Several observations are in order. Initially, cases dealing with installing equipment to monitor persons during periods of court or parole supervision are not persuasive. Those cases are inapposite because they either (1) involve a judicial determination based on an individualized assessment of need or (2) deal with persons who have a lessened expectation of privacy because they have not yet been released from criminal justice supervision. Id. at 882, n.7.
Furthermore, Defendants have cited no case where a “sex offender” who has completed his or her punishment and supervision for a sex crime was held to have a weaker claim to Fourth Amendment protection than ordinary citizens. Without precedent (or at least an analogous and well-reasoned case), I am unwilling to vitiate the Fourth Amendment for individuals who have paid their debt to society. Id. at 883 (“[a] person’s status as a felon who is no longer under any form of punitive supervision therefore does not permit the government to search his home and belongings without a warrant.”).
Finally, to the extent that Nebraska contends this portion of the statute can be saved by a limiting judicial construction, I reject such an approach as wholly inappropriate. The statue is unambiguous. That is, a person who has served his or her probationary or parole term and prison or jail time for a sex offense must “consent” to the installation of monitoring equipment on computers he or she possesses. Such a consent then authorizes a search incident thereto to find the computers in places where
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the person who gave the consent has a reasonable expectation of privacy and is followed by the installation of monitoring equipment on computers for which there is a reasonable expectation of privacy.
As Chief Justice Roberts has recently reiterated regarding an unambiguous statute, the federal courts “‘may impose a limiting construction on a statute only if it is ‘readily susceptible’ to such a construction’” and the federal courts “‘will not rewrite a . . . law to conform it to constitutional requirements’ . . . .” United States v. Stevens, 130 S. Ct. 1577, 1591 (2010) (federal statute criminalizing the commercial creation, sale, or possession of depictions of animal cruelty was substantially overbroad, and thus, the statute was facially invalid under the First Amendment protection of speech) (citation omitted) (emphasis added). Nebraska follows that familiar rule as well. See, e.g., State v. Woods, 587 N.W.2d 122, 128 (Neb. 1998) (holding that notice-of-alibi statute would not be construed to allow a court to order the disclosure of the identity of the defendant’s alibi witness prior to trial; stating that a statute is open for construction only when the language used requires interpretation or may reasonably be considered ambiguous).
Here, the challenged provision needs no construction. The words are (chillingly) plain.
(3) Summary
The consent to search and the consent to monitoring provisions of Neb. Rev. Stat. § 29-4006(2) violate the Fourth Amendment both facially23 and as applied as those provisions pertain to previously convicted “sex offenders” who were not on probation, parole, or court-monitored supervision on January 1, 2010, because they had
23With respect to sex offenders who were not on probation, parole or courtmonitored supervision on January 1, 2010, there is no set of circumstances where the statute would satisfy the Fourth Amendment.
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served their time. Since Defendants have repeatedly asserted that Nebraska law mirrors the federal constitution, (e.g., filing 335 at CM/ECF pp. 4-5) it follows that the law violates the Nebraska constitution as well for this category of “sex offenders.” See Neb. Const. art. I, § 7 (Fourth Amendment equivalent).
With the previous discussion in mind, the parties are directed to provide me with a stipulation designating those Plaintiffs who fit within this category–“sex offenders” who were not on probation, parole or court-monitored supervision as of January 1, 2010–together with the date when the offender was no longer under criminal justice supervision. That stipulation shall be provided within thirty days after the issuance of this Memorandum and Order. If, for some reason, the parties cannot reach agreement, they shall arrange a telephone conference with me by contacting my judicial assistant.
Given the foregoing determination, it is unnecessary to decide whether the challenged statute violates the constitutional rights of persons associated with this group of Plaintiffs (like spouses, mothers or employers). Stated more simply, if those Plaintiffs previously convicted of a “sex offense” but who have served their time are not obligated to give a consent to search and consent to the installation of computer monitors, then those persons associated with such Plaintiffs have nothing to fear.
B. Persons Presently on Probation, Parole or Court-Monitored Supervision
Plaintiffs also argue that the statutory consent to “search” and consent to “monitoring” requirements violate the protections afforded by both the Fourth Amendment, and the Nebraska equivalent, to persons on probation, parole or courtmonitored supervision. (Filing 329 at CM/ECF pp. 195-203.) Additionally, Plaintiffs argue that the Fourth Amendment privacy interests of persons associated with these offenders are violated by these provisions. (E.g., id. at CM/ECF pp. 45-49.)
The amended complaint asserts both “facial” and “as-applied” challenges. ( Id. at CM/ECF pp. 59-60.) In addition, the amended complaint sets out specific
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allegations by each Plaintiff regarding the harm he or she may suffer as a result of the new law. Some Plaintiffs complain of harm associated with this consent to search provision. (Id. at CM/ECF pp. 24-49.) In particular, and for example, the amended complaint describes a Plaintiff who is “still on probation,”24 who uses a computer for work and whose family utilizes a website that could be called a social networking site to keep in touch with family and friends. (Id. at CM/ECF p. 35.) Defendants have denied the individual Plaintiffs’ specific allegations of the amended complaint because Defendants lack sufficient knowledge or information. (Filing 333 at CM/ECF pp. 1317.)25 Furthermore, the parties have not agreed on a general statement of undisputed facts or a particularized statement of facts regarding the specific claims of each of the Plaintiffs.
After careful consideration, Plaintiffs’ motion for summary judgment, as well as Defendants’ motion for summary judgment, are denied regarding the statutory consent to “search,” and consent to “monitoring” requirements pertaining to persons who have been convicted of sex crimes and who are presently on probation, parole or court-monitored supervision and also respecting persons associated with such registrants. As briefly explained in the following discussion, a trial is necessary to resolve the constitutionality of this section of Nebraska’s new law as applied to this category of offenders and those associated with them.
The Supreme Court has declared that “[a] probationer’s home, like anyone else’s, is protected by the Fourth Amendment’s requirement that searches be ‘reasonable.’ ” Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). But, like most things, context is critical when evaluating principles enunciated by the Supreme Court. In Griffin, the Court upheld a Wisconsin law permitting any probation officer to search a probationer’s home without a warrant so long as there were “reasonable grounds” to
24But, as discussed later, there may be mootness, ripeness and standing problems despite this allegation.
25On motion of Defendants, Judge Zwart stayed discovery. (Filing 328.)
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support a search. Id. The Court explained that “the special needs of Wisconsin’s probation system make the warrant requirement impracticable and justify replacement of the standard of probable cause by ‘reasonable grounds.’ ” Id. at 876.
Subsequently, in United States v. Knights, 534 U.S. 112, 121(2001), the Court elected not to apply the “special needs” doctrine in upholding a warrantless search of a probationer that was supported by “reasonable suspicion.” Rather, the Court held that the search was reasonable “under [the] general Fourth Amendment approach of ‘examining the totality of the circumstances.’ ” Id. at 118 (quoting Ohio v. Robinette, 519 U.S. 33, 39 (1996)). In explaining its decision, the Court noted that the probationer had signed a probation order agreeing to submit to a search of his person and property by a law enforcement officer “at any[ ]time, with or without a search warrant, warrant of arrest or reasonable cause.” Id. at 118. The Court concluded that ‘‘the balance of these considerations requires no more than reasonable suspicion,’’ ultimately holding that ‘‘the warrantless search . . . , supported by reasonable suspicion and authorized by a condition of probation, was reasonable within the meaning of the Fourth Amendment.’’ Id. at 121–122. However, the Court explicitly refused to consider whether Knights’ acceptance of the search condition constituted a voluntary consent under the requirements of Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Id. at 118.
In Samson v. California, 547 U.S. 843, 852 (2006), the Court applied a “totality of the circumstances” analysis in upholding a suspicionless search of a parolee conducted pursuant to a California law providing that, as a condition for release from prison, every prisoner eligible for state parole agreed to be subject to a search or seizure by a parole officer with or without a search warrant and with or without cause. After reiterating Knights’ holding that “probationers ‘do not enjoy the absolute liberty to which every citizen is entitled,’ ” id. at 849 (quoting Knights, 534 U.S. at 119), the Court explained that “[e]xamining the totality of the circumstances pertaining to petitioner's status as a parolee, ... including the plain terms of the parole search condition, ... petitioner did not have an expectation of privacy that society would recognize as legitimate.” Id. at 852 (citations omitted). Just as in Knights, the Court
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explicitly refused to consider whether acceptance of the parole condition by an inmate in order to gain his release from prison was a voluntary consent under Schneckloth. Id. at 852, n. 3.
While the foregoing cases dealt with persons on probation or parole, it is worth remembering that some of the Plaintiffs are not sex offenders but they may be impacted by the requirement that an offender with whom they are associated is required to give consent. In that regard, the Supreme Court has made plain that a warrantless search of marital residence, on the basis of consent given to police by a defendant's wife, was an unreasonable and invalid search as to the defendant, who was physically present and expressly refused to consent. Georgia v. Randolph, 547 U.S. 103, 123 (2006). It is clear, therefore, in some circumstances, Fourth Amendment protections exist even though one party has given a consent that might otherwise constitute a waiver of Fourth Amendment rights regarding the property subject to the waiver. Moreover, the Randolph case illustrates how the consent of one party may be used by law enforcement as a justification to impair the Fourth Amendment rights of another party.
After considering the foregoing cases (and others), and having not received any comparable case law from the parties, I will undertake an examination of the statute within a discrete factual context presented by a trial in order assess the relative interests of sex offenders who are now on probation, parole or court-monitored supervision, persons associated with those offenders, and the State of Nebraska. With respect to the necessity of a trial, one must appreciate that Plaintiffs bring both a facial and an asapplied challenge and, additionally, that the parties have not agreed on a general statement of undisputed facts or a particularized statement of undisputed facts regarding the specific claims of each of the Plaintiffs. While it might be possible to
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resolve the facial challenge without a trial,26 since a trial is required for the as-applied challenge, it makes more sense to resolve both challenges after trial.
There are several important caveats that apply to a trial respecting the category of persons presently on probation, parole or court-monitored supervision. Initially, the record may suggest that none of the Plaintiffs will be on probation, parole or court-monitored supervision at the time of trial because they will have served their time.27 If it turns out that none of the Plaintiffs will be on probation, parole or court-monitored supervision because they have served their time, then the “as-applied” challenge to the statute regarding persons on probation, parole or court-monitored
26As I have noted in other contexts, for district judges who must decide whether trials are necessary, it is hard to differentiate between facial and as-applied challenges where both types of challenges are asserted. This is particularly true when First Amendment claims (where a statute may be voided without a showing that it is unconstitutional in every application) are interwoven with other constitutional claims. In this regard, Plaintiffs who are mothers, spouses and employers of sex offenders presently on probation, parole or court-monitored supervision (if any) may be claiming that the “consent” provision chills their First Amendment right of free speech when jointly using computers and the Internet. That issue will be resolved at trial as well.
27At the preliminary injunction hearing, Mr. Dornan, Plaintiffs’counsel, stated the following:
THE COURT: . . . . And secondly, Mr. Dornan, are at least some of the plaintiffs in this group people who have been convicted of sexual offenses but who have served their time and are no longer on probation or parole?
MR. DORNAN: My understanding, Judge, is that all of the numbered Does except for number 12 fit in that status. My understanding of number 12 is that he is on supervised release until January the 7th of 2010.
(Filing 326 at CM/ECF p. 7.)
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supervision is probably moot, or at least not ripe, because none of the Plaintiffs fit into that category and there is no threat to them.28 Additionally, if none of the Plaintiffs are on probation, parole, or court-monitored supervision at the time of trial, one wonders whether Plaintiffs have standing to assert a facial challenge to the extent the statute pertains to persons who are probation, parole or court-monitored supervision.
The parties have also given too little thought to another potential class of persons. The parties do not adequately address the class of persons who have not yet committed a sex offense, but who may commit such an offense in the future and thus become subject to this law. Do Plaintiffs purport to represent such a group? If they do, one must ask whether Plaintiffs have standing to assert a claim for that group. Because of these concerns, the lawyers are directed to confer. After that, they should address these matters (preferably by stipulation) as the case moves forward.
C. Fourth Amendment–Recapitulation
I have decided that on Fourth Amendment grounds and the equivalent provision of the Nebraska Constitution, Neb. Rev. Stat. § 29-4006(2) is unconstitutional as it regards Plaintiffs who were previously convicted of sex crimes but who were not on probation, parole or court-monitored supervision on or after January 1, 2010. In this regard, Plaintiffs’ motion for summary judgment is granted and Defendants’ motion for summary judgment is denied. For persons who were previously convicted of sex crimes and who were on probation, parole or court-monitored supervision on or after January 1, 2010, a trial is required to determine the constitutionality of Neb. Rev. Stat. § 29-4006(2) under the Fourth Amendment and the equivalent provision of the Nebraska Constitution. In this regard, Plaintiffs’ motion for summary judgment and Defendants’ motion for summary judgment are denied.
28The problem of mootness and ripeness would seem to be exacerbated by the ruling just announced that the statute is unconstitutional as to Plaintiffs who have served their time and who are no longer under supervision.
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III.
Ninth and Tenth Causes of Action–Due Process–Regarding Neb. Rev. Stat. § 28-322.05 (West, Operative Jan. 1, 2010)
Plaintiffs attack Neb. Rev. Stat. § 28-322.05, which makes it a crime for certain offenders to use portions of the Internet. Plaintiffs claim that this statute violates the Due Process Clause of the Fourteenth Amendment and Nebraska’s equivalent constitutional provision. (Filing 329 at CM/ECF pp. 20-21, 54-55, n. 12.) They bring a facial and an as-applied challenge. (Id. at CM/ECF p. 59.)
In its entirety, Neb. Rev. Stat. § 28-322.05 states:
(1) Any person required to register under the Sex Offender Registration Act who is required to register because of a conviction for one or more of the following offenses, including any substantially equivalent offense committed in another state, territory, commonwealth, or other jurisdiction of the United States, and who knowingly and intentionally uses a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use its social networking web site, instant messaging, or chat room service, commits the offense of unlawful use of the Internet by a prohibited sex offender:
(a) Kidnapping of a minor pursuant to section 28-313;
(b) Sexual assault of a child in the first degree pursuant to section 28-319.01;
(c) Sexual assault of a child in the second or third degree pursuant to section 28-320.01;
(d) Incest of a minor pursuant to section 28-703;
(e) Pandering of a minor pursuant to section 28-802;
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(f) Visual depiction of sexually explicit conduct of a child pursuant to section 28-1463.03 or 28-1463.05;
(g) Possessing any visual depiction of sexually explicit conduct pursuant to section 28-813.01;
(h) Criminal child enticement pursuant to section 28-311;
(i) Child enticement by means of an electronic communication device pursuant to section 28-320.02;
(j) Enticement by electronic communication device pursuant to section 28-833; or
(k) An attempt or conspiracy to commit an offense listed in subdivisions (1)(a) through (1)(j) of this section.
(2) Unlawful use of the Internet by a prohibited sex offender is a Class I misdemeanor for a first offense. Any second or subsequent conviction under this section is a Class IIIA felony.
Relevant definitions29 are found in Neb. Rev. Stat. § 29-4001.01, to wit:
29I reject out of hand Plaintiffs’ assertion that these definitions do not apply to the criminal statute because the definitions were codified in another portion of the Nebraska statutes. While it is true that these provisions were codified in different sections, the criminal provision discussed in the text and the definitions discussed in the text were contained in the same legislation. See LB 97 §§ 14, 24 (2009), Slip Law Copy available at http://nebraskalegislature.gov/bills (use “LB 97” and “101st Legislature First and Second Sessions” as search terms). Nebraska follows the standard rule of construction that statutes are construed together when they relate to the same subject matter. See, e.g., Fontenelle Equip., Inc. v. Pattlen Enter., Inc., 629 N.W.2d 534, 540 (Neb. 2001). I will follow that customary rule here because these statutes relate to the same subject matter.
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(3) Chat room means a web site or server space on the Internet or communication network primarily designated for the virtually instantaneous exchange of text or voice transmissions or computer file attachments amongst two or more computers or electronic communication device users;
. . .
(10) Instant messaging means a direct, dedicated, and private communication service, accessed with a computer or electronic communication device, that enables a user of the service to send and receive virtually instantaneous text transmissions or computer file attachments to other selected users of the service through the Internet or a computer communications network;
. . .
(13) Social networking web site means a web page or collection of web sites contained on the Internet (a) that enables users or subscribers to create, display, and maintain a profile or Internet domain containing biographical data, personal information, photos, or other types of media, (b) that can be searched, viewed, or accessed by other users or visitors to the web site, with or without the creator’s permission, consent, invitation, or authorization, and © that may permit some form of communication, such as direct comment on the profile page, instant messaging, or email, between the creator of the profile and users who have viewed or accessed the creator’s profile;
In particular, Plaintiffs claim that this criminal statute is “void for vagueness.” As I next briefly explain, I shall deny Plaintiffs’ motion for summary judgment, and Defendants’ motion for summary judgment, because the record is inadequate to resolve this claim without a trial.
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First, there is good reason to believe that some of the Plaintiffs who are convicted offenders would be subject to this criminal statute as they have qualifying convictions and regularly use computers for work and otherwise. (E.g., filing 6-1 at CM/ECF pp. 23-25; filing 346-11 at CM/ECF pp. 7-8.)30 There is also good reason to believe that these Plaintiffs, their coworkers and family members would be adversely impacted by the inability of such offenders to use portions of the Internet while attempting to comply with this statute. (E.g., filing 6-1 at CM/ECF p. 23-24.)
Second, the vagueness doctrine is not an outgrowth of the First Amendment (although it is applied in cases where there are First Amendment issues), but rather the doctrine is a function of the Due Process Clause of the Fifth Amendment.31 See, e.g., United States v. Williams, 533 U.S. 285, 304 (2008) (Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act provision criminalizing the pandering or solicitation of child pornography is not overbroad under the First Amendment, and that provision also is not impermissibly vague under the Due
30One of Plaintiffs’ attorneys has submitted a signed and sworn affidavit that he has “the signature pages of the [declarations regarding) Does 1 through 20 and A through K on file, and each of the declarations, while submitted anonymously, has been signed under penalty of perjury.” (Filing 7.) To the extent that Defendants object to the declarations of Doe 12 (see filing 349) that objection is overruled.
31The Fourteenth Amendment’s reference in Section 1 to “due process of law” incorporates the “void for vagueness” notion found in the Fifth Amendment and thus makes that doctrine applicable to the states. See, e.g., Kolender v. Lawson, 461 U.S. 352 (1983) (California statute requiring persons who loiter or wander on streets to provide “credible and reliable” identification and to account for their presence when requested by peace officer under circumstances that would justify stop under standards of Terry v. Ohio, with “credible and reliable” identification being defined as “carrying reasonable assurance that the identification is authentic and providing means for later getting in touch with the person who has identified himself,” was unconstitutionally vague within meaning of the due process clause for failing to clarify what was contemplated by requirement that suspect provide “credible and reliable” identification).
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Process Clause). A criminal statute fails to comport with due process if the statute fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so lacking in standards that it authorizes or encourages seriously discriminatory enforcement. Id.; See also, Skilling v. United States, — S.Ct —, —, 2010 WL2518587 at * 30 (2010); Hill v. Colorado, 530 U.S. 703, 732 (2000); Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972). Importantly, “what renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is.” Williams, 533 U.S. at 306.
Third, a trial is necessary on this claim because both parties have failed to present an undisputed record of material facts showing how this statute actually works. In particular, but not by way of limitation, I do not have a factual record that is undisputed showing how an offender would know whether using a particular site or service is banned because that site or service “allows a person who is less than eighteen years of age to access or use” the site or service.
My independent research (Attachment A) shows that certain sites prohibit, as a matter of policy, use by persons whose ages are 18 or under, but, as a matter of practice, allow access to the sites simply by typing in any qualifying birthday. (E.g., Attachment A at p. 20 (example 2), regarding “travel hospitality.”32) If a lot of minors actually log into such a site, has such a site “allowed” the youngsters to use the site because the site has done nothing to stop them? How does an offender know whether a site or service “allows a person who is less than” 18 to “access or use” the site or service? What does “allows” mean in practice? Does it only cover sites or services that explicitly permit use by youngsters as a matter of stated policy? If so, does an offender violate the statute if the offender fails to look for such a policy as a part of his “use”? Does the word
32Again, I emphasize that Attachment A is solely intended to illustrate the void in the summary judgment record and for no other purpose. It is up to the lawyers to present the facts.
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“allows” include any site or service that lacks a policy but actually permits youngsters, as a matter of practice, to use the site or service? If so, how is the offender to determine whether young people are “allowed” to use the site or service as a matter of practice? If a site has no age restriction and thus “allows” minors to “access” the site, but no minors actually “use” the site, has an offender who “uses” the site committed a crime when everyone else who “uses” the site is an adult? Other examples abound,33 but the point is made. I need to know how this statute works in practice in order to judge the “void for vagueness” claim both facially and as-applied, and the present record is insufficient. Moreover, I need to know how the statute is likely to be applied in practice to judge whether a limiting construction could be used to save the statute. Cf. Skilling, — S.Ct. at —, 2010 WL2518587 at * 23 (before applying a limiting construction to avoid a “void for vagueness” challenge to an “honest services” prosecution under 18 U.S.C. § 1346, the Court said: “[t]o place Skilling’s [void for vagueness] constitutional challenge in context, we first review the origin and subsequent application of the honest-services doctrine”).
Given the myriad of Internet options, the parties would be well-advised to present a fair sample of the relevant universe at trial. In this regard, I encourage the parties to think about the use of a joint expert to present objective testimony on this claim and the other “Internet” claims that will be resolved at trial. A person who is both legally and technically trained would be ideal. Someone like Professor Eugene Volokh, who holds a degree in mathematics and computer science, who worked for 12 years as a computer programmer, and who is a highly regarded legal academic might be such a person. See Eugene Volokh Biography, available at www.law.ucla.edu. And, to be frank, rather than dueling experts, I would appreciate hearing from someone who has no particular allegiance to the positions of either side. Thus, I strongly suggest that the parties
33For example, iGoogle appears to combine a browser, email capability, and chat capability (among other things) into one personalized platform. Does an offender who “uses” that personalized platform run afoul of the criminal statute when persons under the age of 18 are allowed to access Google chat capabilities even if the offender never clicks on the chat feature on his personalized iGoogle platform?
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consider jointly hiring an expert. Again, however, it is the lawyers’ responsibility to present the evidence, and I will respect their decisions.34
IV.
Fourteenth and Fifteenth Causes of Action–First Amendment–Regarding Neb. Rev. Stat. § 29-4006(1)(k)&(s) (West, Operative Jan. 1, 2010) and Neb. Rev. Stat. § 28-322.05 (West Operative Jan. 1, 2010)
Plaintiffs attack section 29-4006(1)(k)&(s) and section 28-322.05 because the requirement that registrants must disclose information about Internet use violates their right to freedom of speech guaranteed by the First Amendment (and the Nebraska equivalent) and because the partial ban on Internet use by certain offenders, upon pain of criminal conviction, violates those speech rights as well. (E.g., filing 329 at CM/ECF pp. 17, 56-57.) Plaintiffs bring both a facial and an as-applied challenge. (Id. at CM/ECF p. 60.)
A person who is required to register must supply their “remote communication device identifiers and addresses, including, but not limited to, all global unique identifiers, serial numbers, Internet protocol addresses, telephone numbers, and account numbers specific to the device[.]” Neb. Rev. Stat. § 29-4006(1)(k). A registrant must also supply:
All email addresses, instant messaging identifiers, chat room identifiers, global unique identifiers, and other Internet communication identifiers that the person uses or plans to use, all domain names registered by the registrant, and all blogs and Internet sites maintained by the person or to which the person has uploaded any content or posted any messages or information.
Neb. Rev. Stat. § 29-4006(1)(s) (emphasis added).
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In pertinent part, Neb. Rev. Stat. § 28-322.05 significantly restricts Internet use by some offenders and states the following:
(1) Any person required to register under the Sex Offender Registration Act who is required to register because of a conviction for one or more of the following offenses, including any substantially equivalent offense committed in another state, territory, commonwealth, or other jurisdiction of the United States, and who knowingly and intentionally uses a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use its social networking web site, instant messaging, or chat room service, commits the offense of unlawful use of the Internet by a prohibited sex offender:
[listing specific offenses] . . .
I find and conclude that a trial is required regarding the First Amendment challenges to these two statutes. Accordingly, I will deny the motions for summary judgement submitted by both parties. I do so for essentially the same reasons that I have previously decided a trial is necessary. The parties have not given me an undisputed record of material facts that explains how these two statutes would actually work in practice and without such a record I cannot determine the implications of this statute on Plaintiffs’ First Amendment rights. Once again, I refer the parties to Attachment A as an example of the void in this record. Briefly, I next explain in somewhat more detail why a trial is required.
People who are convicted of crimes, even felony crimes related to children, do not forfeit their First Amendment right to speak by accessing the Internet. See, e.g., United States v. Crume, 422 F.3d 728, 733 (8th Cir. 2005) (condition of supervised release, imposed upon a man who had been convicted of receiving and possessing child pornography, which completely barred defendant’s access to computers and the Internet was a greater deprivation of defendant’s First Amendment rights than was reasonable). Indeed, the Eighth Circuit Court of Appeals has described Internet access as “an important medium of communication, commerce and information-gathering” and has
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required that restrictions imposed for criminal justice supervision purposes be “narrowly-tailored.” Id. The requirement that restrictions upon the speech of a sex offender must be narrowly tailored35 applies equally to the civil regulation of sex offenders who use the Internet. See, e.g., White v. Baker, 2010 WL 1009758 (N.D. Ga., March 3, 2010) (requirement for former sexual offender to provide his Internet e-mail addresses, usernames, and passwords to law enforcement personnel was not sufficiently narrow to accomplish state’s legitimate interest in protecting children from Internet predators, in violation of offender’s anonymous First Amendment free speech rights, where there was possibility of public disclosure and broad use of that information and, further, offender had to report user names and passwords used on “interactive online forums” when that term arguably included forums (such as blogs) in which protected speech occurred).
A content-neutral regulation of speech is permitted if the regulation is narrowly tailored to serve a significant governmental interest, and if it leaves open ample alternative channels for communication of information. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). It is immaterial that the government’s interest might be adequately served by some less-speech-restrictive alternative. Id. at 798. However, this standard “does not mean that a . . . regulation may burden more speech than is necessary to further the government’s legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden does not serve to advance its goals.” Id. at 799.
Several examples will show why a trial is necessary.36 In particular, the examples illustrate the need for concrete facts regarding the “narrowly tailored” requirement.
35I assume at this point in the litigation that these statutes should be deemed “content neutral” for the purposes of First Amendment analysis.
36By providing examples, I do not mean to suggest that these examples are the only objects of my concern or even the most important. They are merely illustrations.
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Example 1: Considering Neb. Rev. Stat. § 29-4006(1)(s), one wonders whether a sex offender’s posting to a blog site maintained by a law professor for the purpose of discussing sentencing issues,37 where the posting decried sex offender registration laws, would be covered by the statute and thus reportable. If so, one wonders whether the foregoing statute is narrowly tailored.
Example 2: Considering Neb. Rev. Stat. § 28-322.05, one wonders what the word “allows” means. In that same vein, one wonders whether a site that allows users to connect with individuals who speak different languages for the purposes of enhancing language learning as native speakers and to help non-native speakers improve their language skills is off limits because persons over the age of 13 can, as a matter of the site’s policy, access the site.38 If so, one wonders whether the foregoing statute is narrowly tailored.
Example 3: Doe 35 is probably covered by the offenses listed in Neb. Rev. Stat. § 28-322.05 because, at 23 years of age and after having consensual sex (once) with a 14 year old female, he was convicted of “child molestation” under Washington law.39 (Filing 330 at CM/ECF p. 33.) There is no indication that Doe 35 used a computer to commit his crime. If it is true that Doe 35 did not use a computer to commit his crime and if it is also true that he is subject to the ban found in section 28-322.05, one wonders whether the statute as applied to him and others like him is narrowly tailored. Cf. Crume, 422 F.3d 728, 733 (stating that “we are particularly reluctant to uphold sweeping restrictions on important constitutional rights[,]” and noting that “the record
37See, e.g., Douglas A. Berman, Sentencing Law and Policy, available at http://sentencing.typepad.com/sentencing_law_and_policy/.
38See Attachment A at page 21 (example 3). 39Neb. Rev. Stat. § 28-319.01 (West 2009) is Nebraska’s “statutory rape” law. The offense described in § 28-319.01 is a listed offense under the provisions of Neb. Rev. Stat. § 28-322.05(b). Neb. Rev. Stat. § 28-322.05 pertains not only to listed offenses but also to “substantially equivalent offenses” committed in other states. Id.
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is devoid of evidence that [the defendant] ever used his computer beyond simply possessing child pornography[,]” the Court of Appeals reversed a “broad ban” so “the district court can impose a more narrowly-tailored restriction”); United States v. Mark, 425 F.3d 505, 509 (8th Cir. 2005) (citing and following Crume; remanding for a determination whether special supervised release condition completely barring defendant from Internet access was the least restrictive means reasonably necessary to deter further criminal conduct and protect the public).
PART TWO–ALL OTHER SECTIONS OF NEBRASKA’S NEW LAW ARE CONSTITUTIONAL40
Federal courts, including the United States Court of Appeals for the Eighth Circuit, have consistently upheld SORNA as against claims that it is unconstitutional. See, e.g., United States v. May, 535 F.3d 912 (8th Cir. 2008) (holding that SORNA does not violate the Ex Post Facto Clause, the Commerce Clause, or the non-delegation doctrine); United States v. Howell, 552 F.3d 709, 717 (8th Cir. 2009) (finding that section of SORNA containing underlying registration requirements was valid exercise of congressional power under Necessary and Proper Clause; registration requirements were appropriate and reasonably adapted means by Congress to attain legitimate end of monitoring and regulating interstate movement of sex offenders); United States v. Waddle, __ F.3d __, 2010 WL 2852920 (8th Cir. July 22, 2010) (adhering to May).
I.
First and Second Causes of Action–Ex Post Facto Claim
40 To be clear, in Part Two of this opinion I consider all statutory provisions that were enacted or amended by LB 97 and LB 285, except Neb. Rev. Stat. §§ 29-4006(1)(k)&(s), 29-4006(2), and 28-322.05. My rulings on Plaintiffs’ claims in Part Two do not apply to those statutory provisions, which are discussed separately in Part One of this opinion.
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“Both U.S. Const. art. I, § 10, cl. 1, and Neb. Const. art. I, § 16, provide that no ex post facto law shall be passed.” Slansky v. Nebraska State Patrol, 685 N.W.2d 335, 350 (Neb. 2004). The Nebraska Supreme Court “ordinarily construes Nebraska’s ex post facto clause to provide no greater protections than those guaranteed by the federal Constitution.” Id. (citing State v. Worm, 680 N.W.2d 151 (Neb. 2004), State v. Urbano, 589 N.W.2d 144 (Neb. 1999)). “[U]nder the Ex Post Facto Clause, the retroactive application of civil disabilities and sanctions is permitted; only retroactive criminal punishment for past acts is prohibited.” Id.
Plaintiffs claim that “[s]ome of the previously-held statuses, rights, or abilities [they have been] deprived [of] by virtue of the retroactive application of the New Act include:
a. Ability to challenge the need for global notification on the Internet through the State Patrol website, Neb. Rev. Stat. § 29-4013(2)(b) (Rev. 2007);
b. Status as a low or moderate risk registrant as determined by the State using an individualized risk assessment tool, and corresponding level of public notification, Neb. Rev. Stat. § 29- 4013(2)(c) (Rev. 2007);
c. Limited ability to expunge registration information after successful completion of the registration period, Neb. Rev. Stat. § 29-4010 (Rev. 2002);
d. Right to the confidentiality of the registry information, Neb. Rev. Stat. § 29-4009 (Rev. 2006);
e. Ability to have the sentencing court exempt certain defendants from the obligations of registration, Neb. Rev. Stat. § 29-4003(2) (Rev. 2006);
f. Right to rely on the finality of the sentence and criminal process; and g. Right to rely on the plea agreement entered into by some registrants.” (Filing 345, CM/ECF pp. 6-7, ¶ 4.)
Plaintiffs also claim that “[i]n addition to those restrictions already in place under the prior registry, some of the increased restrictions and disabilities imposed on registrants through the retroactive application of the New Act include:
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a. Increased registration period, extending some individuals from a ten year registration period to a lifetime obligation, Neb. Rev. Stat. § 29-4005(1)(b) (Rev. 2009);
b. Mandatory public notification through the State Patrol sex offender website, regardless of the State-determined level of risk, Neb. Rev. Stat. § 29-4013(2)(b) (Rev. 2009);
c. Mandatory characterization as posing ‘a high-risk to reoffend’ and as ‘violent sex offenders,’ regardless of the known risk to reoffend, Exhibit 5, [Filing 346-6], p. 1; Filing 319-7, p. 6;
d. Mandatory in-person periodic reporting, versus the previous written reporting requirement, Neb. Rev. Stat. § 29-4006(3)-(6) (Rev. 2009);
e. Increased frequency of periodic reporting, up to four times per year, Neb. Rev. Stat. § 29-4006(3)-(6) (Rev. 2009);
f. Mandatory in-person updating of certain information, including addresses, employment, school, vehicles, travel and immigration documents, professional licenses and certificates, email addresses, Internet identifiers and telephone numbers, Exhibit 7 [Filing 346-8];
g. Increased obligation to provide greater and more identifying types of information to law enforcement, Neb. Rev. Stat. § 29-4006(1) (Rev. 2009);
. . . j. Mandatory updating of that electronic information within one work day, so law enforcement is never far behind, Neb. Rev. Stat. § 29- 4006(13) (Rev. 2009); and k. Threat of a strict liability felony offense for failure to provide or timely update any of the registry information, Neb. Rev. Stat. § 29- 4008 (Rev. 2009).” (Filing 345, CM/ECF pp. 7-8, ¶5.)
In this regard, Plaintiffs represent that “Does 1-36 [in Case No. 8:09CV456] and the two John Does [in Case Nos.4:09CV3266 and 4:10CV3005] were convicted of registrable offenses and sentenced before the passage or enforcement of the New Act.” (Filing 345, CM/ECF p. 9, ¶ 8.) Under the old law, they were “subjected to an
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individualized risk assessment, and certified by the State as posing a particular risk to reoffend.” (Filing 345, CM/ECF p. 9, ¶ 9.)
“Some were assigned as Tier 3, which represented a high risk to reoffend. Filing 1, p. 5-6. These individuals were subject to public notification by informing law enforcement, schools, daycares, and other groups in the area, and through the State Patrol website. Neb. Rev. Stat. § 29-4013(2)(c)(iii) (Rev. 2007).” (Filing 345, CM/ECF p. 9, ¶ 9.)
“Others were assigned as Tier 2, which represented a moderate risk to reoffend. Filing 1, p. 5-6. These individuals were subject to public notification by informing law enforcement, schools, daycares, and other groups in the area. Neb. Rev. Stat. § 29-4013(2)(c)(ii) (Rev. 2007).” (Filing 345, CM/ECF pp. 9-10, ¶ 10.)
“Still others were designated as Tier 1, which represented those who were determined by the State to pose a low risk to reoffend. Filing 1, p. 5-6. Because of the nature of their crimes and circumstances, public notification for these individuals only entailed notification to law enforcement. Neb. Rev. Stat. § 29-4013(2)(c)(i) (Rev. 2007). Some of the low risk Does include the following:
a. In 1996, Doe 1 was found guilty of sexual assault of a child in 1996, and was sentenced to three years of probation. His crime: when he was nineteen, he had a consensual sexual relationship with his fifteen year-old girlfriend. Filing 6-1, p. 1-2.
b. In 2006, Doe 21 was found guilty of third degree sexual assault. His crime: he slapped a girl on the buttocks as she walked up some stairs. Filing 330-1, p. 1-2.
c. In 2006, Doe 28 was convicted of third degree sexual assault. His crime: grabbing a woman’s buttocks as he walked by her in the bakery. At the time of the offense, he was over forty and the victim was approximately the same age. Filing 330-1, p. 18-19.
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d. In 1997, Doe 31 was found guilty of attempted sexual assault in the first degree. His crime: when he was twenty, he impregnated his girlfriend a couple months before she turned sixteen. Filing 330-1, p. 25-26.
e. In 2007, Doe 33 plead guilty to third degree sexual assault to avoid a trial. His crime: he had sex with an adult approximately his same age, but she later claimed it was not consensual. Law enforcement did not use a rape kit to investigate because she had sex with another person between the time Doe 33 had intercourse with her and the time she filed a report. Filing 330-1, p. 29-30.” (Filing 345, p. 10, ¶ 11.)
Plaintiffs complain that under the new law “[d]isregarding the reality of the lowand moderate-risk individuals, all registrants are presently subject to public notification via the State Patrol website. Neb. Rev. Stat. § 29-4013(2)(b) (Rev. 2009). Such website states that sex offenders pose a high risk to reoffend. Exhibit 5, p. 1. In addition, the rules and regulations describe all registrants as ‘violent sex offenders’ and that the registry was ‘passed to protect the public, in particular children.’ Filing 319-7, p. 6.” (Filing 345, CM/ECF p. 11, ¶ 12.)
Plaintiffs allege that “[a]fter the New Act was implemented and all registrants were portrayed as high-risk sex offenders on the Internet, registrants felt the fallout almost immediately.” (Filing 345, CM/ECF p. 11, ¶ 13.) In particular, Plaintiffs contend the new registration system has resulted in:
a. Loss of housing. Exhibit 8, p. 2; Filing 330-1, p. 15.
b. Loss of employment. Filing 330-1, p. 30. In addition, added difficulty finding and/or maintaining employment. Exhibit 9, p. 1-2; Exhibit 11, p. 1; Exhibit 13; Exhibit 10, p. 2.
c. Restricted ... growth of business. Filing 6-1, p. 23-25; Exhibit 12, p. 1.
d. Mistreatment or threats from former friends and neighbors, and loss of associations. Exhibit 10, p. 1-2; Exhibit 11, p. 2; Exhibit 15.
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e. Increased monitoring by law enforcement. Exhibit 9, p. 2; Exhibit 10, p. 3; Exhibit 16.
f. Banish[ment] from school grounds or public places. Exhibit 14, p. 1.
(Filing 345, CM/ECF p. 11, ¶ 13.)
Even if I were to assume that Plaintiffs can produce sufficient admissible evidence to support their “statement of material facts” as quoted above,41 I would conclude that the SORA amendments (excluding those discussed in Part One of this opinion) do not violate the Ex Post Facto Clause of the United States Constitution and the equivalent provision of the Nebraska Constitution. The same is true with respect to any other constitutional claim as to which these assumed facts may be material.
In State v. Worm, the Nebraska Supreme Court considered whether retroactive application of 2002 amendments to SORA violated the Ex Post Facto Clause. As described by the Court, the changes made to the law were as follows:
In April 2002, the Nebraska Legislature amended the Act to bring it in compliance with the federal law. The 1996 original Act required a person convicted of an enumerated sex offense, or its equivalent in another jurisdiction, to register with the Nebraska State Patrol’s sex offender registry. Under this Act, the offender had to verify that registration on an annual basis for a period of 10 years after his or her release from a correctional facility or other institution, or after discharge from probation, parole, or supervised release. See §§ 29-4003 to 29-4005 (Cum.Supp.2000).
In addition, the amendments added new sex offenses, aggravated offenses and repeat offenses, which require the offender to verify his or
41 Defendants deny these statements and object to most of Plaintiffs’ evidence. Because I am not convinced by Plaintiffs’ arguments, I find it unnecessary to examine Defendants’ objections in detail. I therefore will deny Defendants’ objections (filing 349) without prejudice.
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her registration annually. §§ 29-4003 and 29-4005(2) (Cum.Supp.2002). An aggravated offense is defined as “any registrable offense . . . which involves the penetration of (i) a victim age twelve years or more through the use of force or the threat of serious violence or (ii) a victim under the age of twelve years.” § 29-4005(4)(a). The amendments require the sentencing court to make the finding of an aggravated or repeat offense as part of the sentencing order. § 29-4005(2).
The amendments also require an offender to provide his or her place of vocation and any school which he or she attends in addition to the previous requirement of providing the offender’s address and place of employment. 2002 Neb. Laws, L.B. 564. Under both versions, the Act is retroactive to defendants convicted of or pleading guilty to most registrable offenses on or before January 1, 1997. Id.
The amendments, however, did not substantively change the sections concerning community notification. The Nebraska State Patrol’s registration and community notification division is responsible for assigning a notification level after an offender initially registers. The assigned notification corresponds to the offender’s assessed recidivism risk, which can be assessed as low, moderate, or high. See § 29-4013(2). If the risk is low, law enforcement officials who are likely to encounter the offender are notified of the registry information. § 29-4013(2)(c)(i). If the recidivism risk is moderate, schools, daycare centers, and youth and religious organizations are additionally notified. § 29-4013(2)(c)(ii). If the recidivism risk is high, individuals likely to encounter the offender must also be notified, in addition to those notified for low and moderate notification levels. § 29-4013(2)(c)(iii). If a risk assessment indicates that public notification is warranted, it can be accomplished by direct contact, news releases, or a method using a telephone system, including an electronic database. Id. See, also, 272 Neb. Admin. Code, ch. 19, § 013.06 (2003). The State Patrol maintains a public Web site, which disseminates specified information about offenders only if they are assigned a high-risk notification level.
680 N.W.2d at 157-158.
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At sentencing, the defendant in Worm was determined to have committed an aggravated offense prior to the effective date of the 2002 amendments. The Nebraska Supreme Court observed that “whether the amendment violates state and federal constitutional proscriptions against retroactive punishment is analyzed under the U.S. Supreme Court’s two-prong, ‘intent-effects’ test for analyzing punishment.” Id., at 160 (citing Smith v. Doe, 538 U.S. 84 (2003)). Under this test, “[i]f a court determines that the Legislature intended a statutory scheme to be civil, that intent will be rejected ‘only where a party challenging the [statute] provides the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the State’s intention.’” Id. (quoting State v. Isham, 625 N.W.2d 511, 515 (Neb. 2001)).
Regarding the legislative intent prong, the Nebraska Supreme Court stated:
Whether the Legislature intended the amendments to be civil or criminal is primarily a matter of statutory construction. However, we must also look at the statute’s structure and design. . . .
. . .
When looking at the statute’s structure and design, the primary consideration is the procedural mechanisms established by the Legislature to enforce the statute. The regulations use an administrative hearing and an appeal process under Nebraska’s Administrative Procedure Act for challenging the registration and notification requirements . . . [which] evidences a civil, nonpunitive statute.”
Id. (citations omitted).
Plaintiffs complain that the 2009 amendments to SORA did away with the administrative hearing and appeal process; they argue that “[t]he elimination of due process protection indicates a criminal, punitive statute.” (Filing 345, at CM/ECF p. 116.) What LB 285 actually did, of course, was to replace a system that required individualized risk assessments of sex offenders with an “offense of conviction” methodology. It is only because the Nebraska State Patrol is no longer required to
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judge each sex offender’s risk of recidivism under Neb. Rev. Stat. § 29-4013 that the administrative hearing and appeal procedures no longer apply. The replacement method, which conforms to SORNA, see National Guidelines, at 38031 (“[J]urisdictions are not required by SORNA to look beyond the elements of the offense of conviction in determining registration requirements except with respect to victim age.”), does not evidence a legislative intent to adopt a criminal statute.
Plaintiffs also point to a statement made by the Nebraska Supreme Court in Worm that “prompt notification of the Act’s requirements and its criminal penalty for noncompliance is essential in some cases,” 680 N.W.2d at 161, and then proceed to argue that “retroactively changing the requirements to be significantly more onerous without notice, or without prior notice that such a change was even possible, infers [sic] a punitive intent.” (Filing 345, at CM/ECF pp. 116-117.) The Court in Worm was simply explaining that SORA required the sentencing court to provide notice when entering judgment because the Act’s registration requirement would begin immediately if the offender was not incarcerated pending an appeal or sentenced to probation. The Court concluded that the sentencing requirement was not criminal in nature. Plaintiffs’ argument that lack of notice implies a punitive intent is misplaced.
Plaintiffs next contend that in State v. Payan, 765 N.W.2d 192 (2009), the Nebraska Supreme Court established a “high water mark for the permissible level of monitoring and restrictions that [a] statutory scheme may impose before Nebraska law compels a conclusion that the legislative intent was punishment under Nebraska’s ex post facto clause,” and that “[t]he New Act goes far beyond these maximums.” (Filing 345, at CM/ECF p.118.) This is a misreading of the Payan decision.42
42 Plaintiffs also argue that “Payan and Worm lead to the conclusion that the Nebraska ex post facto clause expands the legislative intent analysis to grant protection beyond its federal counterpart.” (Filing 345, at CM/ECF p. 120.) This conclusion is unfounded.
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The legal issue presented in Payan was whether a factual finding that the defendant committed an aggravated offense, as defined by SORA, should have been made by the jury, rather than the trial judge, for purposes of lifetime community supervision requirement under Neb. Rev. Stat. § 83-174.03 (not part of SORA). Applying the same “intent-effects” test used in Worm, the Court decided that § 83174.03 imposed a criminal penalty:
A key factor in determining the legislative intent of § 83-174.03 is the fact that the statute requires persons subjected to lifetime community supervision to be supervised by the Office of Parole Administration, a component of the Department of Correctional Services, which is responsible for all parole services in the community. . . . The term ‘parole’ has a distinctively penal connotation. . . .
Unlike the SORA registration requirements, § 83-174.03 subjects the offender who has completed a prison sentence to significant affirmative restraints which may be imposed by the Office of Parole Administration. Some of these are similar to restrictions which may be imposed upon incarcerated persons paroled before their mandatory release date. These include restrictions on place of residence; required reporting to a parole officer; and submission to medical, psychological, psychiatric, or other treatment. In addition, persons subject to lifetime community supervision may be subject to drug and alcohol testing, restrictions on employment and leisure activities, and polygraph examinations.
. . .
. . . Lifetime community supervision under § 83-174.03 begins upon completion of the offender’s term of incarceration or release from civil commitment. It involves affirmative restraints and disabilities similar to and arguably greater than traditional parole. It is not dependent upon any finding that the offender poses a risk to the safety of others at the time he or she completes a period of incarceration or civil commitment. We therefore conclude that the legislative intent in enacting § 83-174.03 was to establish an additional form of punishment for some sex offenders.
765 N.W.2d at 202 (footnotes omitted).
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Unlike a requirement of lifetime community supervision, SORA’s registration requirements are not analogous to a term of parole.43 The Payan decision therefore does not support a determination that the Nebraska Legislature, by conforming Nebraska’s law to SORNA, intended to impose a criminal penalty rather than “to create a civil regulatory scheme to protect the public from the danger posed by sex offenders, . . ..” Worm, 680 N.W.2d at 161.
Factors used to determine whether the effect of a statute is so punitive as to negate the Legislature’s intent include:
“(1) ‘[w]hether the sanction involves an affirmative disability or restraint’; (2) ‘whether it has historically been regarded as a punishment’; (3) ‘whether it comes into play only on a finding of scienter ’; (4) ‘whether its operation will promote the traditional aims of punishment-retribution and deterrence’; (5) ‘whether the behavior to which it applies is already a crime’; (6) ‘whether an alternative purpose to which it may rationally be connected is assignable for it’; and (7) ‘whether it appears excessive in relation to the alternative purpose assigned.’ ”
Id. (quoting State v. Isham, 625 N.W.2d 511, 515-516 (Neb. 2001), quoting Hudson v. United States, 522 U.S. 93 (1997), quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963)). Plaintiffs make two basic arguments regarding these factors.
First, Plaintiffs argue that the legislation places affirmative disabilities and restraints on registrants because “[t]he New Act’s constant in-person reporting has a
43 Among other differences, “[p]robation and supervised release [or parole] entail a series of mandatory conditions and allow the supervising officer to seek the revocation of probation or release in case of infraction. By contrast, offenders subject to [SORA] are free to move where they wish and to live and work as other citizens, with no supervision. . . . A sex offender who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual’s original offense.” Smith v. Doe, 538 U.S. at 101-102 (citations omitted).
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punitive effect.” (Filing 345, CM/ECF p. 121.) In particular, Plaintiffs complain that: (1) As amended by LB 285, SORA compels all registrants to report in-person annually, semiannually, or quarterly, depending on the registration duration. See Neb. Rev. Stat. § 29- 4006(4)-(6) (West, Operative Jan. 1, 2010). (2) In-person reporting is also required every time a registrant has a new address, habitual living location, temporary domicile, job, or enrolls in a school. See Neb. Rev. Stat. § 29-4004 (West, Operative Jan. 1, 2010). (3) A registrant must give notice, in writing, by the next working day of “any changes in or additions to such person’s list of email addresses, instant messaging identifiers, chat room identifiers, global unique identifiers, and other Internet communication identifiers that the registrant uses or plans to use, all domain names registered by the person, and all blogs and Internet web sites maintained by the person or to which the person has uploaded any content or posted any messages or information.” Neb. Rev. Stat. § 29- 4006(13) (West, Operative Jan. 1, 2010). In Worm, Plaintiffs note, the Nebraska Supreme Court found that the Act’s former registration requirements imposed only a “slight” burden. 680 N.W.2d at 162.
Second, Plaintiffs emphasize that “[a]ll registrants are subjected to public notification via the Internet.” (Filing 345, CM/ECF p. 123.) They point out that in Welvaert v. Nebraska State Patrol, 683 N.W.2d 357, 366 (Neb. 2004), the Nebraska Supreme Court found that the Act’s former provisions did not impose an affirmative restraint because “[t]he extent to which an offender is subject to public notification under SORA has been tailored to mirror the level of risk an offender presents to their community.” The law previously provided that:
If the risk of recidivism is low, only law enforcement officials who are likely to encounter the offender must be notified. § 29-4013(2)(c)(i). If the risk of recidivism is moderate, the circle of notification is broadened to include schools, daycare centers, and religious and youth organizations. § 29-4013(2)(c)(ii). If the risk of recidivism is high, notification must also be given to members of the public who are likely to encounter the offender. § 29-4013(2)(c)(iii).
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Id. Under the current law, by contrast, certain information regarding all registrants is disclosed to the public.44 See Neb. Rev. Stat. §§ 29-4009, 29-4013 (West, Operative Jan. 1, 2010). This second point, regarding publication of information about all registered sex offenders (as opposed to only those assessed as “high risk” under the former law) is repeated by Plaintiffs with respect to all seven Mendoza-Martinez factors.45
While the current law’s reporting requirements are more stringent, and the public notification provisions are more expansive, than in the versions of SORA that were upheld against ex post facto challenges in Worm and Welvaet, I am not convinced that the purpose or effect of the amendments that were made in order to bring Nebraska’s law into compliance with SORNA are punitive. As I stated in ruling on Plaintiffs’ motion for a preliminary injunction:
Nebraska requires the offender to appear in person at various times, and this requirement mirrors SORNA. 42 U.S.C.§§ 16913(c), 16916. See also Doe v. Pataki, 120 F.3d 1263, 1284-85 (2nd Cir. 1997) (finding that registration provisions of New York’s Sex Offender Registration Act (SORA), or “Megan’s Law,” imposing duty to register in person every 90 days for minimum of ten years, did not inflict “punishment” within meaning of Ex Post Facto Clause; registration served legislature’s nonpunitive goals of facilitating law enforcement and protecting public;
44 Plaintiffs complain about the wording of the Nebraska State Patrol’s website, which recites that “Nebraska State Statute 29-4002 declares that sex offenders present a high risk to commit repeat offenses . . ..” (Filing 346-6, at CM/ECF p. 1.) They claim this statement is untruthful because it labels all sex offenders as “high risk.”
45 Plaintiffs additionally urge me to consider whether SORA, as amended, (1) detrimentally impacts the collateral consequences of their convictions; (2) imposes restrictions and obligations identical to those imposed upon probationers and parolees; (3) eliminates a status, right, or ability previously afforded by the government; and (4) is imposed exclusively and directly at a politically unpopular group. (Filing 345, at CM/ECF pp. 101-112.) To the extent these considerations are not already encompassed by the Mendoza-Martinez factors, I decline to do so.
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and burdens of registration were not so punitive in form or effect as to constitute punishment). Likewise, Nebraska has chosen to publicize the names of anyone who must register as a sex offender, and not just some of those persons. SORNA does the same thing, but it gives states an option to exempt certain offenders. Compare 42 U.S.C. § 16918(a) with 42 U.S.C. § 16918(c). Nebraska has elected not to use that option, and there is nothing unconstitutional about such a choice.
(Filing 92, at CM/ECF pp. 9-10.)
In Smith v. Doe, the United States Supreme Court rejected arguments that Alaska’s Sex Offender Registration Act violated the Ex Post Facto Clause because it applied to all convicted sex offenders, without regard to their future dangerousness, and placed no limits on public access to non-confidential information. The Court found that the law had a “rational connection” to a “legitimate nonpunitive purpose of ‘public safety, which is advanced by alerting the public to the risk of sex offenders in their communit[y].’” 538 U.S. at 103 (quoting lower court’s opinion). It then stated:
Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism. The legislature’s findings are consistent with grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is “frightening and high.” McKune v. Lile, 536 U.S. 24, 34, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002); see also id., at 33, 122 S.Ct. 2017 (“When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault” (citing U.S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses and Offenders 27 (1997); U.S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997))).
The Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences. . . . The State’s determination to legislate with respect to convicted sex offenders as a
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class, rather than require individual determination of their dangerousness, does not make the statute a punishment under the Ex Post Facto Clause.
. . . In the context of the regulatory scheme the State can dispense with individual predictions of future dangerousness and allow the public to assess the risk on the basis of accurate, nonprivate information about the registrants’ convictions without violating the prohibitions of the Ex Post Facto Clause.
. . .
[T]he notification system is a passive one: An individual must seek access to the information [on the State’s web site]. . . . Given the general mobility of our population, for Alaska to make its registry system available and easily accessible throughout the State was not so excessive a regulatory requirement as to become a punishment.
538 U.S. at 103-105. The same can be said of Nebraska’s law.
Because Plaintiffs cannot show by the “clearest proof” that the effects of Nebraska’s SORNA-conforming amendments negate the legislative intent to maintain a civil regulatory scheme, Defendants are entitled to the entry of partial summary judgment on Plaintiffs’ ex post facto claim. For the reasons discussed in Part One of this opinion, however, Defendants’ motion will be denied insofar as the claim concerns Neb. Rev. Stat. §§ 28-322.05, 29-4006(1)(k)&(s), and 29-4006(2).
II.
Third and Fourth Causes of Action–Double Jeopardy Claim
No person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Constitution, Amend. V. “No person shall . . . be twice put in jeopardy for the same offense.” Neb. Const., Art. 1, § 12.
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“The protection provided by Nebraska’s double jeopardy clause is coextensive with that provided by the U.S. Constitution.” State v. Dragoo, 765 N.W.2d 666, 670 (Neb. 2009). “The Double Jeopardy Clauses of both the federal and the Nebraska Constitutions protect against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” Id.
Plaintiffs complain the SORA amendments impose a second punishment on convicted sex offenders. This claim fails because the Double Jeopardy Clause “protects only against the imposition of multiple criminal punishments for the same offense.” Hudson v. United States, 522 U.S. 93, 99 (1997) (emphasis in original). As already discussed in connection with Plaintiffs’ ex post facto claim (in Part Two of this opinion), Nebraska’s new registration requirements do not amount to criminal penalties.
III.
Fifth and Sixth Causes of Action–Cruel and Unusual Punishment Claim
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Constitution, Amend. VIII.; Neb. Const. Art. 1, § 9. “[W]ith reference to cruel and unusual punishment, the Nebraska Constitution does not require more than does the [Eighth Amendment to the] U.S. Constitution.” State v. Hurbenca, 669 N.W.2d 668, 675 (Neb. 2003) (quoting State v. Moore, 591 N.W.2d 86, 95 (Neb. 1999)).
Plaintiffs contend that “[f]or those offenders who have served their periods of incarceration and were determined by the State to be lower-risk to reoffend, the extension of the registration period is unusual given the goal of preventing recidivism. Mandatory public notification via the State Patrol website is a cruel punishment not remotely proportional to the risk posed.” (Filing 345, at CM/ECF p. 138.) Again, this
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argument fails because SORA’s registration and notification requirements do not constitute punishment.
IV.
Ninth and Tenth Causes of Action–Due Process Claim
No State shall “deprive any person of life, liberty, or property, without due process of law[.]” U.S. Constitution, Amend. XIV, § 1. “No person shall be deprived of life, liberty, or property, without due process of law.” Neb. Const. Art. I, § 3.
The Nebraska Supreme Court has indicated that the federal and state constitutions contain similar due process language, and has applied the same analysis to such claims. See Scofield v. State, Dept. of Natural Resources, 753 N.W.2d 345, 356 (Neb. 2008). More particularly, “[i]n the context of a right to privacy, [the Nebraska Supreme Court has] effectively stated that the due process provision of the Nebraska Constitution is congruent with the federal Constitution and that the Nebraska Constitution does not contain any rights broader than the federal Constitution.” Hamit v. Hamit, 715 N.W.2d 512, 524 (Neb. 2006) (citing State v. Senters, 699 N.W.2d (Neb. 2005)).
Plaintiffs advance four due process arguments: “First, the New Act is unconstitutionally vague. Second, the New Act violates substantive due process. Third, the New Act violates procedural due process by eliminating both fundamental and state law-generated rights without a hearing. Finally, the retroactive application of the New Act is irrational and arbitrary.” (Filing 345, at CM/ECF p. 139.)
A. Vagueness
Plaintiffs claim that “[t]he New Act detailing the registration requirements and the Unlawful use of the Internet crime are both unconstitutionally vague under the due process clause.” (Filing 345, at CM/ECF p. 139.) I address here only the claim that the
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registration requirements are vague. The vagueness claim concerning Neb. Rev. Stat. § 28-322.05, and associated definitions from Section 24 of LB 97,46 is addressed in Part One of this opinion.
“An overly vague statute ‘violates the first essential of due process of law,’ because citizens ‘must necessarily guess at its meaning and differ as to its application’.” United States v. Bamberg, 478 F.3d 934, 937 (8th Cir. 2007) (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). “There is a two-part test to determine whether a statute is void for vagueness. The statute, first, must provide adequate notice of the proscribed conduct, and second, not lend itself to arbitrary enforcement.” Id. (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). See also State v. Rung, 774 N.W.2d 621, 632 (Neb. 2009) (“The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”). “Statutes are to be evaluated under these standards using principles of flexibility and reasonable breadth.” Agena v. Lancaster County Bd. of Equalization, 758 N.W.2d 363, 374 (Neb. 2008).
Plaintiffs first complain that SORA, as amended, “applies to any person who on or after January 1, 1997 . . . [h]as ever pled guilty to, pled nolo contendere to, or been found guilty of any of the following [listed offenses] . . ..” Neb. Rev. Stat. § 294003(1)(a)(i) (West, Operative Jan. 1, 2010) (emphasis supplied). According to Plaintiffs, “[t]his section appears to simultaneously both limit its application to offenses after January 1, 1997, and apply to the enumerated offenses regardless of when they were committed.” (Filing 345, at CM/ECF p. 140.)
46 LB 97’s definitions are codified as Neb. Rev. Stat. § 29-4001.01(2), (3), (4), (6), (7), (8), (10), (11), & (13) (West, Operative Jan. 1, 2010). Subsections (1), (5), (9), (12), (14) and (15) of that statute are definitions added by LB 285, § 3.
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Before being amended by LB 285, the statute provided that SORA “shall apply to any person who on or after January 1, 1997 . . . [p]leads guilty to or is found guilty of [listed offenses] . . ..” Neb. Rev. Stat. § 29-4003(1)(a) (Reissue 2008). SORA’s original effective date was January 1, 1997. See Neb. Laws 1996, LB 645, § 20. By retaining the date, the legislature clearly intended the 2009 amendments to apply only to persons convicted since January 1, 1997. Use of the word “ever” does not negate this legislative intent. Although inartfully drafted, the statute simply means that SORA’s registration requirements apply to a person who at any time on or after January 1, 1997, whether by plea or trial, has been found guilty of a listed sex offense. The statute does not lend itself to arbitrary enforcement.
Plaintiffs next complain that “Neb. Rev. Stat. § 29-4004 imposes confusing inperson reporting requirements on all registrants when he or she has a new address, temporary domicile, or habitual living location. ‘Temporary domicile’ is defined as any place at which the person actually lives or stays for a period of at least three working days. § 29-4001.01(15). ‘Habitual living location’ is defined as any place that an offender may stay for a period of more than three days even though the sex offender maintains a separate permanent address or temporary domicile. § 29-4001.01(9). This notification must occur within three working days before the change. § 29-4004(2)(4).47 The New Act fails to define ‘working days,’ leaving the entire reporting structure
47 SORA’s reporting requirements include the following:
(2) Any person required to register under the act shall inform the sheriff of the county in which he or she resides, in person, and complete a form as prescribed by the Nebraska State Patrol for such purpose, if he or she has a new address, temporary domicile, or habitual living location, within three working days before the change. . . .
(3) Any person required to register under the act shall inform the sheriff of the county in which he or she resides, in person, and complete a form as prescribed by the Nebraska State Patrol for such purpose, if he or she has a new address, temporary domicile, or habitual living location
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vague. For example, this could mean Monday through Friday, but it could also include weekends and nonconsecutive days. Law enforcement generally works 24/7, so the statute could have an additional meaning.” (Filing 345, at CM/ECF p. 142.)
The term “working days” is commonly understood to mean Monday through Friday, excluding holidays.48 A term left undefined by a statute carries its ordinary meaning. Carton v. General Motor Acceptance Corp., __ F.3d __, 2010 WL 2732874, at *6 (8th Cir. 2010). See also Schuyler Apartment Partners, LLC v. Colfax County Bd. of Equalization, 783 N.W.2d 587, 591 (Neb. 2010) (“Absent a statutory indication to the contrary, words in a statute will be given their ordinary meaning.”). A person of reasonable intelligence would also understand that “a period of at least three working days” (emphasis supplied) refers to three consecutive working days.
Plaintiffs state that “[a] habitual living location includes anywhere a registrant may stay for a period of more than three days, which includes virtually anywhere on the
in a different county in this state, within three working days before the address change. . . . The person shall report to the county sheriff of his or her new county of residence and register with such county sheriff within three working days after the address change.
(4) Any person required to register under the act shall inform the sheriff of the county in which he or she resides, in person, and complete a form as prescribed by the Nebraska State Patrol for such purpose, if he or she moves to a new out-of-state address, within three working days before the address change. . . .
Neb.Rev.St. § 29-4004 (West, Operative Jan. 1, 2010).
48 In fact, the regulations promulgated by the Nebraska State Patrol to carry out the registration provisions of the Sex Offender Registration Act, as directed by Neb. Rev. Stat. § 29-4013(1) (West, Operative Jan. 1, 2010), define “working days” to mean “Monday through Friday but shall not include any day which is a state holiday.” Neb. Admin. Code, Title 272, Ch. 19, § 002.36 (effective Jan. 1, 2010). The state holidays are also listed.
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planet. . . . No registrant would believe that he had an obligation to report all places he may stay, rendering the requirement to report all habitual living locations a nullity and adding to the confusion.” (Filing 345, at CM/ECF p. 142.)
This argument is self-defeating because “[a] penal statute is given a strict construction which is sensible and prevents injustice or an absurd consequence.” State v. Hochstein , 632 N.W.2d 273, 280 (Neb. 2001). “Penal statutes are given a sensible construction in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served.” Id. As Plaintiffs concede, it is evident the statute only requires a registrant to report his or her intended relocations.
Plaintiffs next complain that “Neb. Rev. Stat. § 29-4006 broadens the amount and nature of the information that a registrant must provide under the New Act to a bewildering and confusing extent. This information includes the confusing temporary domicile and habitual living location. It also includes the license plate, description and regular storage location of any vehicle owned or operated by the person. Since ‘vehicle’ is not defined, it might include various manners of transportation, as has been the case in criminal driving under the influence cases, e.g. bicycles, riding lawnmowers, tractors, boats, etc. It is also unclear whether this would include vehicles used by a registrant for work.” (Filing 345, at CM/ECF pp. 142-143.)
The term “vehicle” is not defined by the Act, but only vehicles with license plates are subject to the registration requirement.49 The Act provides that any vehicle “owned or operated” (emphasis supplied) by the registrant must be reported. This language is unambiguous.
49 The statute provides that the registration information shall include “[t]he license plate number and a description of any vehicle owned or operated by the person and its regular storage location[.]” Neb. Rev. St. § 29-4006(g) (West, Operative Jan. 1, 2010). The Nebraska State Patrol rules and regulations use the same language. See Neb. Admin. Code, Title 272, Ch. 19, § 008.06G (effective Jan. 1, 2010).
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Finally, Plaintiffs state that “ Neb. Rev. Stat. § 29-4006(1) requires that the State Patrol collect certain information, ‘but not limited to’ that enumerated data. This gives the State Patrol unfettered discretion to collect an unforeseeable amount of information. Once the State Patrol collects whatever it wants, the New Act provides that only limited information will be confidential, and the rest will not be confidential. Neb. Rev. Stat. § 29-4009(1). The New Act also provides for the release of “public notification information” to third parties. Neb. Rev. Stat. § 29-4013(4) and (5). But no provision regulates whether such third parties may disclose such confidential information, and it places no limitation on third parties as to how they disseminate information gathered under the New Act, confidential or otherwise.” (Filing 345, at CM/ECF p. 146.)
Plaintiffs do not appear to be arguing that Section 29-4006(1) is “void for vagueness,” but rather that it involves an unlawful delegation of legislative authority to the Nebraska State Patrol. “It is a well-established principle that the Legislature may delegate to an administrative agency the power to make rules and regulations to implement the policy of a statute.” Yant v. City of Grand Island, 784 N.W.2d 101, 109-110 (Neb. 2010). Plaintiffs make no contention that the Nebraska State Patrol’s rules and regulations require them to disclose any information that is not specifically listed in Section 29-4006(1).
Regarding Plaintiffs’ privacy concerns, the Nebraska State Patrol has provided that confidential information “shall only be released upon written request to law enforcement agencies” and “shall be treated as confidential by law enforcement agencies and shall not be considered public record information.” Neb. Admin. Code, Title 272, Ch. 19, §§ 013.01 & 13.06 (effective Jan. 1, 2010). “Certain groups and agencies approved by the National Sex Offender Registry shall have access to additional public notification information (not provided on the web site) about registered sex offenders,” but “[s]uch information excludes confidential information as provided in section 013.06.” Neb. Admin. Code, Title 272, Ch. 19, § 13.07 (effective Jan. 1, 2010).
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B. Substantive Due Process
To address Plaintiffs’ substantive due process claim, I must first determine whether SORA’s registration and public notification requirements implicate a fundamental right. See Gunderson v. Hvass, 339 F.3d 639, 643 (8th Cir. 2003). “If the statute implicates a fundamental right, the state must show a legitimate and compelling governmental interest for interfering with that right.” Id. (citing Graham v. Richardson, 403 U.S. 365, 376 (1971)). “If the statute does not implicate a fundamental right, . . . a less exacting standard of review [applies] under which the statute will stand as long as it is rationally related to a legitimate governmental purpose.” Id. (citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446 (1985)).
Plaintiffs claim that the amended Act “infringes on the right in one’s reputation and name, right to the integrity of a family, right to travel, right to earn a living, and the right to privacy.” (Filing 345, at CM/ECF p. 148.) I determine that any injury caused to Plaintiffs’ reputations does not constitute the deprivation of a liberty interest, and that any claimed infringement of their recognized liberty interests is merely incidental.
1. No Fundamental Right Implicated
Plaintiffs complain that “[p]ublic notification for all registrants deprives them of their liberty interest in their names, reputations and standing in their communities by failing to differentiate between high- and lower-risk persons on the sex offender registry.”50 (Filing 345, at CM/ECF p. 149.) This claim does not implicate a fundamental right. “[M]ere injury to reputation, even if defamatory, does not constitute
50 Plaintiffs also claim that SORA, as amended, “undermines the fundamental right to earn a living and maintain gainful employment.” (Filing 345, at CM/ECF p. 160.) “The right to ‘make a living’ is not a ‘fundamental right,’ for either equal protection or substantive due process purposes.” Medeiros v. Vincent, 431 F.3d 25, 32 (1st Cir. 2005).
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the deprivation of a liberty interest.” Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 6-7 (2003) (citing Paul v. Davis, 424 U.S. 693 (1976)).
Plaintiffs argue that a “stigma plus” test applies. See Gunderson, 339 F.3d at 640 ( “The loss of reputation must be coupled with some other tangible element to rise to the level of a protectible property interest.”). The “stigma plus” test, however, is designed for procedural due process claims. It does not apply to substantive due process claims. See Doe v. Michigan Dept. of State Police, 490 F.3d 491, 502 (6th Cir. 2007) (“Our review of the caselaw has failed to identify any case that applies the stigma-plus test to a substantive due process claim.”); Does v. Munoz, 507 F.3d 961, 966 n. 1 (6th Cir. 2007) (“Plaintiffs obscure the correct analysis by urging us to apply the “stigma plus” test. That test applies only to procedural due process claims.”) (emphasis in original). But cf. Zutz v. Nelson, 601 F.3d 842, 849 (8th Cir. 2010) (holding that district court correctly dismissed substantive due process claim where plaintiffs “have not even vaguely pleaded any other harm” than injury to their reputations).
In Doe v. Moore, 410 F.3d 1337 (2005), the Eleventh Circuit Court of Appeals considered a substantive due process challenge to Florida’s Sex Offender Act, brought by several persons who were required by the law to register as sex offenders and, without regard to their likelihood to reoffend, have their photographs and identifying information posted on the state’s website. The Court followed a two-step process to determine whether a fundamental right was implicated:
We must analyze a substantive due process claim by first crafting a “careful description of the asserted right.” Flores,51 507 U.S. at 302, 113 S.Ct. at 1447; accord Glucksberg,52 521 U.S. at 720-21, 117 S.Ct. at 2268. Second, we must determine whether the asserted right is “one of ‘those fundamental rights and liberties which are, objectively, deeply rooted in
51 Reno v. Flores, 507 U.S. 292 (1993). 52 Washington v. Glucksberg, 521 U.S. 702 (1997).
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this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.’ ” Williams v. Attorney Gen. of Alabama, 378 F.3d 1232, 1239 (11th Cir.2004) (quoting Glucksberg, 521 U.S. at 720-21, 117 S.Ct. at 2268), cert. denied, Williams v. King, 543 U.S. 1152, 125 S.Ct. 1335, 161 L.Ed.2d 115 (2005).
Id., at 1343. Regarding the first step, the Court stated:
Although the Supreme Court has recognized fundamental rights in regard to some special liberty and privacy interests, it has not created a broad category where any alleged infringement on privacy and liberty will be subject to substantive due process protection. See Paul [v. Davis], 424 U.S. at 713, 96 S.Ct. at 1166 (noting that personal privacy rights protected by substantive due process “must be limited to those which are ‘fundamental’ or ‘implicit in the concept of ordered liberty’”). Further, in order to trigger substantive due process protection the Sex Offender Act must either directly or unduly burden the fundamental rights claimed by Appellants. See Maher v. Roe, 432 U.S. 464, 473-74, 97 S.Ct. 2376, 2382, 53 L.Ed.2d 484 (1977) (holding that the substantive due process clause “protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy”); see also Paul P. v. Verniero, 170 F.3d 396, 405 (3rd Cir.1999) (holding that the indirect effects caused by a sex offender registration statute are “too substantially different from the government actions” in prior case law “to fall within the penumbra of constitutional privacy protection.”). Thus, a careful description of the fundamental interest at issue here allows us to narrowly frame the specific facts before us so that we do not stray into broader “constitutional vistas than are called for by the facts of the case at hand.” Williams, 378 F.3d at 1240. To do so we use the Sex Offender Act itself to define the scope of the claimed fundamental right. Id. at 1241. After reviewing the provisions of the Sex Offender Act and the briefs, the right at issue here is the right of a person, convicted of “sexual offenses,” to refuse subsequent registration of his or her personal information with Florida law enforcement and prevent publication of this information on Florida's Sexual Offender/Predator website.
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Id., at 1343-1344 (footnote omitted). At the second step, the Court concluded that such a right was not “deeply rooted in this Nation’s history and tradition,” stating:
Though the Supreme Court has not addressed whether substantive due process invalidates sex offender registration statutes, see Connecticut Dep’t of Public Safety, 538 U.S. at 8, 123 S.Ct. at 1165, we can find no history or tradition that would elevate the issue here to a fundamental right. In fact, the case law we have found supports the contrary conclusion. We can certainly understand how a person may be shunned by a person or group that discovers his past offense. However, a state’s publication of truthful information that is already available to the public does not infringe the fundamental constitutional rights of liberty and privacy. Therefore, we do not review the statute with strict scrutiny, but only under a rational basis standard.
Id., at 1344. I agree with this analysis.53
Plaintiffs next claim that “[l]abeling a non-dangerous registrant as high-risk to reoffend intrudes on matters of personal choice as related to marriage and family life.” (Filing 345, at CM/ECF p. 158.) The Eight Circuit’s decision in Doe v. Miller, 405 F.3d 700 (8th Cir. 2005), upholding an Iowa statute that prohibited a person who had committed a sex offense against a minor from residing within two thousand feet of school or child care facility, establishes that this claim does not require strict scrutiny of SORA. Addressing the plaintiffs’ substantive due process claim, the Court stated:
We do not believe that the residency restriction of § 692A.2A implicates any fundamental right of the Does that would trigger strict scrutiny of the statute. In evaluating this argument, it is important to consider the Supreme Court’s admonition that “‘[s]ubstantive due process’ analysis must begin with a careful description of the asserted right, for ‘[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.’” Flores, 507 U.S. at 302, 113 S.Ct. 1439 (quoting Collins v. Harker Heights, 503
53 Applying a rational basis standard, the Eleventh Circuit went on to hold that the plaintiff’s substantive due process claim failed.
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U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)). While the Court has not directed that an asserted right be defined at the most specific level of tradition supporting or denying the asserted right, cf. Michael H. v. Gerald D., 491 U.S. at 127 n. 6, 109 S.Ct. 2333 (1989) (opinion of Scalia, J.), the Does’ characterization of a fundamental right to “personal choice regarding the family” is so general that it would trigger strict scrutiny of innumerable laws and ordinances that influence “personal choices” made by families on a daily basis. The Supreme Court’s decision in Griswold54 and the plurality opinion in Moore55 did recognize unenumerated constitutional rights relating to personal choice in matters of marriage and family life, but they defined the recognized rights more narrowly, in terms of “intimate relation of husband and wife,” Griswold, 381 U.S. at 482, 85 S.Ct. 1678, or “intrusive regulation” of “family living arrangements.” Moore, 431 U.S. at 499, 97 S.Ct. 1932 (plurality opinion).
Unlike the precedents cited by the Does, the Iowa statute does not operate directly on the family relationship. Although the law restricts where a residence may be located, nothing in the statute limits who may live with the Does in their residences. The plurality in Moore emphasized this distinction, observing that the impact on family was “no mere incidental result of the ordinance,” because “[o]n its face [the ordinance] selects certain categories of relatives who may live together and declares that others may not.” 431 U.S. at 498-99, 97 S.Ct. 1932 (plurality opinion). Thus, the reasoning of the Moore plurality does not require strict scrutiny of a regulation that has an incidental or unintended effect on the family, Hameetman v. City of Chicago, 776 F.2d 636, 643 (7th Cir.1985) (upholding requirement that firemen reside within city limits), or that “affects or encourages decisions on family matters” but does not force such choices. Gorrie v. Bowen, 809 F.2d 508, 523 (8th Cir.1987) (upholding regulation requiring that applications for public assistance for dependent children include siblings living in same household). Similarly, the Court in Griswold disclaimed authority to determine “the wisdom, need, and propriety” of all laws that touch social conditions, but held
54 Griswold v. Connecticut, 381 U.S. 479 (1965).
55 Moore v. City of East Cleveland, 431 U.S. 494 (1977).
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unconstitutional a state statute that “operate[d] directly on an intimate relation of husband and wife.” 381 U.S. at 482, 85 S.Ct. 1678.
Id., at 710-711. See also Weems v. Little Rock Police Dept., 453 F.3d 1010, 1015 (8th Cir. 2006) (upholding comparable residency restriction in Arkansas statute).
The Eighth Circuit’s decision in Doe v. Miller also provides controlling precedent for Plaintiffs’ claim that “[t]he in-person reporting requirements imposed on Plaintiffs by the New Act constitute an actual barrier to interstate and intrastate movement guaranteed to all citizens.” (Filing 345, at CM/ECF p. 159.) Regarding the plaintiffs’ claim that Iowa’s residency restrictions interfered with their constitutional right to travel, the Eighth Circuit said:
The modern Supreme Court has recognized a right to interstate travel in several decisions, beginning with United States v. Guest, 383 U.S. 745, 757-58, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966), and Shapiro v. Thompson, 394 U.S. 618, 629-30, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). The Court subsequently explained that the federal guarantee of interstate travel “protects interstate travelers against two sets of burdens: ‘the erection of actual barriers to interstate movement’ and ‘being treated differently’ from intrastate travelers.” Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 277, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993) (quoting Zobel v. Williams, 457 U.S. 55, 60 n. 6, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982)). Most recently, the Court summarized that the right to interstate travel embraces at least three different components: “the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” Saenz v. Roe, 526 U.S. 489, 500, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999).
. . .
. . . The Iowa statute imposes no obstacle to a sex offender’s entry into Iowa, and it does not erect an “actual barrier to interstate movement.”
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Bray, 506 U.S. at 277, 113 S.Ct. 753 (internal quotation omitted). There is “free ingress and regress to and from” Iowa for sex offenders, and the statute thus does not “directly impair the exercise of the right to free interstate movement.” Saenz, 526 U.S. at 501, 119 S.Ct. 1518. Nor does the Iowa statute violate principles of equality by treating nonresidents who visit Iowa any differently than current residents, or by discriminating against citizens of other States who wish to establish residence in Iowa. We think that to recognize a fundamental right to interstate travel in a situation that does not involve any of these circumstances would extend the doctrine beyond the Supreme Court’s pronouncements in this area. That the statute may deter some out-of-state residents from traveling to Iowa because the prospects for a convenient and affordable residence are less promising than elsewhere does not implicate a fundamental right recognized by the Court’s right to travel jurisprudence.
. . .
We find it unnecessary in this case to decide whether there is a fundamental right to intrastate travel under the Constitution, because assuming such a right is recognized, it would not require strict scrutiny of § 692A.2A.
405 F.3d at 709-714 (footnote omitted).
I am not persuaded that SORA’s in-person reporting requirements create an actual barrier to travel. See Doe v. Moore, 410 F.3d at 1348 (requirement that registrants notify law enforcement of every change in their permanent or temporary residences did not unreasonably burden right to travel).
2. Rational Relationship to Legitimate Governmental Purpose
Plaintiffs argue that “[t]he stigmatization of lower-risk offenders is not rationally related to the State’s interest in protecting the public from violent sexual predators.” (Filing 345, at CM/ECF p. 170.) The expressed purpose of SORA is not so limited, however. The Nebraska Legislature made a finding “that sex offenders [in general]
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present a high risk to commit repeat offenses.” Neb. Rev. Stat. § 29-4002 (West, Operative Jan. 1, 2010). The Legislature further found “that efforts of law enforcement agencies to protect their communities, conduct investigations, and quickly apprehend sex offenders are impaired by the lack of available information about individuals who have pleaded guilty to or have been found guilty of sex offenses and who live, work, or attend school in their jurisdiction” and “that state policy should assist efforts of local law enforcement agencies to protect their communities by requiring sex offenders to register with local law enforcement agencies as provided by the Sex Offender Registration Act.” Id.
In Doe v. Michigan Dept. of State Police, the Sixth Circuit Court of Appeals rejected a substantive due process claim by pointing to similar legislative findings:
Michigan contends that its interest in the SORA and the PSOR is “to better assist law enforcement officers and the people of this state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders.” Mich. Comp. Laws § 28.721a (2002). The State further argues that the public has an “interest in knowing the whereabouts of sex offenders” that “outweighs any privacy interest [that] Plaintiffs have in their criminal records, home addresses and other public registration information.” Although we believe that the State’s justification sweeps too broadly, especially with reference to the plaintiffs in the present case, we are constrained to conclude that the rationale articulated in the statute itself satisfies the rational-basis standard.
490 F.3d at 501. See also Does v. Munoz, 507 F.3d at 966 (same result).
The Eleventh Circuit similarly rejected a substantive due process claim in Doe v. Moore, stating:
Here, the state articulates its reasoning for the Sex Offender Act as “protect[ing] the public from sexual abuse.” Appellee’s Br. at 32. The state argues that the public can use the registration “to determine whether any sex offenders live in their neighborhood, make an individual assessment of the risk, and take any precautions appropriate under the circumstances.”
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Id. at 33. We agree with the state that the Sex Offender Act meets the rational basis standard. It has long been in the interest of government to protect its citizens from criminal activity and we find no exceptional circumstances in this case to invalidate the law. We join with other courts, see, e.g., Gunderson [v. Hvass], 339 F.3d at 643-44, in holding that the Sex Offender Act is rationally related to a legitimate government interest.
410 F.3d at 1345-1346.
In conformity with these opinions, I conclude that Nebraska’s registration and public notification requirements are relationally related to a legitimate governmental purpose. Plaintiff’s substantive due process claim therefore fails.
C. Procedural Due Process
“Procedural due process limits the ability of the government to deprive people of interests which constitute ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause and requires that parties deprived of such interests be provided adequate notice and an opportunity to be heard.” Murray v. Neth, 783 N.W.2d 424, 432 (Neb. 2010).
In Doe v. Miller, the Eighth Circuit ruled that the Iowa statute imposing residency restrictions on persons convicted of committing certain criminal offenses against minors did not offend procedural due process principles by not requiring individual risk assessments. The Court stated:
The Does also argue that § 692A.2A unconstitutionally forecloses an “opportunity to be heard” because the statute provides no process for individual determinations of dangerousness. This argument misunderstands the right to procedural due process. As the Supreme Court recently explained in connection with a comparable challenge to Connecticut’s sex offender registration law, “even assuming, arguendo,
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that [the sex offender] has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact that is not material under the [state] statute.” Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 7, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003). States “are not barred by principles of ‘procedural due process’ from drawing” classifications among sex offenders and other individuals. Id. at 8, 123 S.Ct. 1160 (quoting Michael H. v. Gerald D., 491 U.S. 110, 120, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) (plurality opinion)) (emphasis in original).
We likewise conclude that the Iowa residency restriction does not contravene principles of procedural due process under the Constitution. The restriction applies to all offenders who have been convicted of certain crimes against minors, regardless of what estimates of future dangerousness might be proved in individualized hearings. Once such a legislative classification has been drawn, additional procedures are unnecessary, because the statute does not provide a potential exemption for individuals who seek to prove that they are not individually dangerous or likely to offend against neighboring schoolchildren. Unless the Does can establish that the substantive rule established by the legislative classification conflicts with some provision of the Constitution, there is no requirement that the State provide a process to establish an exemption from the legislative classification. Id. at 7-8, 123 S.Ct. 1160. Thus, the absence of an individualized hearing in connection with a statute that offers no exemptions does not offend principles of procedural due process.
405 F.3d at 709.
Plaintiffs argue their case is distinguishable from Connecticut Dep’t of Pub. Safety v. Doe and Doe v. Miller for two reasons: “First, unlike Doe and Miller, Nebraska previously afforded the specific right to the confidentiality of a registrant’s information and a hearing to determine risk of reoffending.” (Filing 345, at CM/ECF p. 171.) “Second, the concurring opinions in Doe clearly focused on the fact that the Connecticut law provided for procedures by which certain sex offenders could be exempted from the registration requirements and their information.” (Filing 345, at CM/ECF p. 172.) I am not persuaded by either argument.
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First, I reject Plaintiffs’ unsupported contention that they have a liberty interest in their classification under the former law as low- or moderate-risk offenders whose personal information was not to be publicly disclosed. “The legislature that creates a statutory entitlement (or other property interest) is not precluded from altering or terminating the entitlement by a later enactment.” Packett v. Stenberg, 969 F.2d 721, 726 (8th Cir. 1992) (citing Gattis v. Gravett, 806 F.2d 778, 780 (8th Cir. 1986). “While the legislative alteration or elimination of a previously conferred property interest may be a deprivation, the legislative process itself provides citizens with all the process they are due.” Id. Plaintiffs are not entitled to perpetual application of the repealed SORA sections. See Nolan v. Thompson, 2007 WL 148815, at *4 (W.D.Mo. 2007) (state prisoner had no continuing liberty interest in application of old parole statute), aff’d 521 F.3d 983 (8th Cir. 2008).
Second, I find no authority for the proposition that a sex offender registry act must provide an exemption procedure in order to satisfy due process. The concurring opinion in Connecticut Dep’t of Pub. Safety v. Doe did not imply such a requirement, but instead “merely note[d] that the Court’s rejection of respondents’ procedural due process claim does not immunize publication schemes like Connecticut’s from an equal protection challenge.” 538 U.S. at 10 (Souter, J., concurring). That is, Justice Souter simply pointed out that the exemptions provided by Connecticut’s law remained open to challenge on equal protection grounds.
D. Retroactivity
Plaintiffs’ final due process argument is that “[i]n addition to violating the ex post facto clause, the retroactivity of the New Act violates the due process clause because it is simply unfair, illegitimate, and arbitrary.” (Filing 345, at CM/ECF p. 174.) In making this argument, Plaintiffs rely on Doe v. Sex Offender Registration Board, 882 N.E.2d 298 (Mass. 2008), in which the Massachusetts Supreme Judicial Court ruled that a person with a rape conviction, who had been released from probation 20 years before Massachusetts’ sex offender registration law went into effect, was entitled to a hearing
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to determine whether he should be exempt from registration despite the law’s mandatory registration requirement for persons convicted of sexually violent offenses. The Court concluded that “the retroactive imposition of the registration requirement without an opportunity to overcome the conclusive presumption of dangerousness that flows solely from Doe’s conviction, violates his right to due process under the Massachusetts Constitution.” Id., at 309.
This case is unpersuasive because it is based on a “reasonableness” test that is unique to Massachusetts. As explained by the Massachusetts court:
Retroactive laws must meet the test of “reasonableness” to comport with State constitutional due process requirements. [American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 372 N.E.2d 520 (1978)] at 190, 372 N.E.2d 520. “[O]nly those retroactive statutes ‘which, on a balancing of opposing considerations, are deemed to be unreasonable, are held to be unconstitutional.’ ” St. Germaine v. Pendergast, 416 Mass. 698, 702, 626 N.E.2d 857 (1993), quoting Leibovich v. Antonellis, 410 Mass. 568, 577, 574 N.E.2d 978 (1991). The burden is on the challenger to make a factual showing that the statute is irrational in its application. Ultimately, the “principal inquiry-as to reasonableness-is essentially a review of whether it is equitable to apply the retroactive statute against the plaintiffs.” American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., supra at 191, 372 N.E.2d 520.
882 N.E.2d at 305.
In the present case, the reasonableness test of the Due Process Clause of the United States Constitution “is met simply by showing that the retroactive application of the legislation is itself justified by a rational legislative purpose.” Honeywell, Inc. v. Minnesota Life and Health Ins. Guar. Ass’n, 110 F.3d 547, 555 (8th Cir. 1997) (quoting Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 730 (1984)). I have no reason to believe Nebraska would apply a different test.
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It is reasonable to conclude that retroactive application of SORA furthers the public safety purpose of the legislation. No further showing is required.
V.
Eleventh and Twelfth Causes of Action–Equal Protection Claim
No State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Constitution, Amend. XIV. “No person shall . . . be denied equal protection of the laws.” Neb. Const., Art. I, § 3. “The Equal Protection Clause keeps governmental decision makers from treating disparately persons who are in all relevant respects similarly situated.” Bills v. Dahm, 32 F.3d 333, 335 (8th Cir. 1994) (citing Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)).
Plaintiffs claim “[t]he New Act violates the Equal Protection Clauses in the United States and Nebraska Constitutions because it is intended solely to disadvantage an unpopular group, and because it treats similarly situated individuals differently with stigmatizing effect.” (Filing 345, at CM/ECF p. 177.) They also claim that “the New Act infringes on fundamental rights, specifically the right in one’s reputation and name, right to the integrity of a family, right to travel, right to earn a living, and the right to privacy.” (Filing 345, at CM/ECF p. 178.)
Convicted sex offenders may be an “unpopular group,” but they are not a “suspect class” for equal protection purposes. The SORA amendments therefore are subject to scrutiny under the rational basis test. See Cutshall v. Sundquist, 193 F.3d 466, 482-483 (6th Cir. 1999) (holding Tennessee Sex Offender Registration and Monitoring Act did not violate plaintiff’s right to equal protection of the laws because “[g]iven the indications that sex offenders pose a particular threat of reoffending, we cannot say that the Act is irrational.”).
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I have already determined in connection with Plaintiffs’ substantive due process claim that Nebraska’s registration and public notification requirements are relationally related to a legitimate governmental purpose. This determination also disposes of Plaintiffs’ equal protection claim. See Executive Air Taxi Corp. v. City of Bismarck, 518 F.3d 562, 569 (8th Cir. 2008) (“A rational basis that survives equal protection scrutiny also satisfies substantive due process analysis.”) (citing Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 470 n. 12 (1981), and Indep. Charities of Am., Inc. v. Minnesota, 82 F.3d 791, 798 (8th Cir. 1996)).
VI.
Thirteenth Cause of Action–Special Legislation Claim
“The Legislature shall not pass local or special laws in any of the following cases, that is to say: Granting to any corporation, association, or individual any special or exclusive privileges, immunity, or franchise whatever . . .. In all other cases where a general law can be made applicable, no special law shall be enacted.” Neb. Const., Art. III, § 18.
“The focus of the prohibition against special legislation is the prevention of legislation which arbitrarily benefits or grants ‘special favors’ to a specific class.” Yant, 784 N.W.2d at 106. Plaintiffs make no such claim. In fact, they argue just the opposite, claiming that “[t]he ‘privilege’ or ‘special favor’ is gained by everyone not on the registry . . ..” (Filing 345, at CM/ECF p. 182.)
VII.
Sixteenth and Seventeenth Causes of Action–Contracts Clause Claim
“No State shall . . . pass any . . . Law impairing the Obligation of Contracts, . . ..”
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U.S. Constitution, Art. 1, § 10. “No . . . law impairing the obligation of contracts . . . shall be passed.” Neb. Const., Art. I. § 16.
“A three-part test determines whether a statute violates the Contracts Clause. ‘The first question is whether the state law has, in fact, operated as a substantial impairment on pre-existing contractual relationships.’” Hawkeye Commodity Promotions, Inc. v. Vilsack, 486 F.3d 430, 436 (8th Cir. 2007) (quoting Equip. Mfrs. Inst. v. Janklow, 300 F.3d 842, 850 (8th Cir. 2002)). “This question ‘has three components: whether there is a contractual relationship, whether a change in law impairs that contractual relationship, and whether the impairment is substantial.’” Id., (quoting Gen. Motors Corp. v. Romein, 503 U.S. 181, 186 (1992)). See also Halpin v. Nebraska State Patrolmen’s Retirement System, 320 N.W.2d 910, 913 (Neb. 1982) (“Where . . . it is claimed that the contract clause prohibits a state’s statutory modification of its own obligations, the court must determine whether contractual obligations within the purview of the contract clause exist; if so, whether the state legislation under attack impaired those obligations; and if there is an impairment of contract, whether it is forbidden by the Constitution.”) (quoting Pineman v. Oechslin, 494 F.Supp. 525, 538 (D.Conn. 1980)). “The second prong of the three-part test is whether the state has a ‘significant and legitimate public purpose behind the regulation.’” Hawkeye Commodity Promotions, Inc., 486 F.3d at 438 (quoting Janklow, 300 F.3d at 850). “The third prong is ‘whether the adjustment of the “rights and responsibilities of contracting parties [is based] upon reasonable conditions and [is] of a character appropriate to the public purpose justifying [the legislation’s] adoption.”’” Id., at 439 (quoting Janklow, 300 F.3d at 850 (alterations in original)).
Plaintiffs contend that plea agreements are treated as contracts both in the Eighth Circuit and in Nebraska. See King v. United States, 595 F.3d 844, 853 (8th Cir. 2010) (“Plea agreements are essentially contracts between the defendant and Government”); State v. Thompson, 735 N.W.2d 818, 826 (Neb. App. 2007) (“[P]lea agreements are contracts”). But cf. United States v. Olesen, 920 F.2d 538, 541 (8th Cir. 1990) (“Plea agreements are like contracts; however, they are not contracts, and therefore contract
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doctrines do not always apply to them.”) (emphasis in original). Although it may be questioned whether plea agreements fall within the reach of the Contracts Clause, see, e.g., State v. Holt, __ P.3d __, 2010 WL 2105180, at *6 (Utah App. May 27, 2010) (raising but not deciding issue), I will assume this element is satisfied.
Plaintiffs next contend that “[t]he New Act retroactively changes the previous obligations and increases the restrictions on registrants. It lengthens the registration duration; significantly increases the frequency of in-person reporting, potentially to an everyday occurrence; eliminates due process hearings; subjects registrants to public notification who were previously low and moderate risk offenders; increases the depth and breadth of registry information collected; infringes on the right to free speech; undermines the Fourth Amendment; etc., etc.” (Filing 345, at CM/ECF p. 184.) The principal problem with this contention is the lack of a showing by Plaintiffs that any provisions of the prior law were incorporated into their plea agreements. Plaintiffs simply claim that “[w]hen the Does who entered into plea agreements did so, they did so knowing that by operation of law they would be subject to the sex offender registry . . . for a period of ten years, they understood the classification system and how it determined risk and that they would only be subject to notification if they were classified as high risk.” (Filing 345, at CM/ECF p. 186 (emphasis supplied).)56
It is generally presumed “that a law is not intended to create private contractual or vested rights but merely declares a policy to be pursued until the legislature shall ordain otherwise.” Honeywell, Inc., 110 F.3d at 552 (quoting National R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry., 470 U.S. 451, 465-66 (1985)). “[A] statute is itself treated as a contract when the language and circumstances evince a legislative intent to create private rights of a contractual nature enforceable against the State.” Id. (quoting United States Trust Co. v. New Jersey, 431 U.S. 1, 17 n. 14 (1977)). There is
56 The Nebraska Supreme Court has held that SORA’s registration requirements are a “collateral consequence” of a plea that do not need to be explained before a plea is accepted. See State v. Schneider, 640 N.W.2d 8, 12 (Neb. 2002)
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nothing in the former Nebraska law that evidences an intent to give plea bargainers a contractual or vested right in the law’s registration and notification provisions.
Because Plaintiffs have failed to show any impairment of the terms of their plea agreements, their Contracts Clause claim fails the first prong of the three-part test described in Hawkeye Commodity Promotions, Inc.57 Summary judgment will be entered in favor of Defendants.
VIII.
Eighteenth Cause of Action–Separation of Powers Claim
“The powers of the government of this state are divided into three distinct departments, the legislative, executive, and judicial, and no person or collection of persons being one of these departments shall exercise any power properly belonging to either of the others except as expressly directed or permitted in this Constitution.” Neb. Const., Art. II § 1(1). “The separation of powers doctrine prohibits one branch of government from encroaching on the duties and prerogatives of the others or from improperly delegating its own duties and prerogatives.” Slack Nursing Home v. Department of Soc. Servs., 528 N.W.2d 285, 294 (Neb. 1995), disapproved on other grounds, Betterman v. Department of Motor Vehicles, 728 N.W.2d 570 (Neb. 2007).
Plaintiffs argue the Nebraska Legislature has usurped the power of the courts by amending SORA to modify the sentences of registrants who were sentenced prior to January 1, 2010:
57 While I do not reach the other two prongs, I note that the 2009 amendments to SORA generally were intended to bring Nebraska law into compliance with the federal Adam Walsh Act, the declared purpose of which is “to protect the public from sex offenders and offenders against children, . . ..” 42 U.S.C. § 16901.
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Before implementation of the New Act, the sentencing court had discretion to exempt a defendant from the registration requirements for specified crimes. Neb. Rev. Stat. § 29-4003(2) (Rev. 2006). That determination was made a part of the sentencing order. Id. If the defendant was subject to lifetime registration, the sentencing court must find that the defendant committed an aggravated offense, had a prior conviction for a registrable offense, or was required to register for life in another jurisdiction. Neb. Rev. Stat. § 29-4005(2) (Rev. 2006). That, too, was made a part of the sentencing order. Id. If the sentencing order failed to include one of the three lifetime triggering factors, the defendant was subject to a ten-year registration period. Neb. Rev. Stat. § 29-4005(1) (Rev. 2006). The sentencing court advised a defendant of the obligation to register during sentencing. Neb. Rev. Stat. § 29-4007(1) (Rev. 2006). See also State v. Blythman, 201 Neb 285 (Neb. 1978) (orders determining current status and current treatability of sexual sociopath are final orders).
All registrants received final orders when originally convicted and sentenced, and many received further final orders when they appealed their classification of risk. Under the previous registration act, the sentencing court was required to include in the sentence order registration information and provide information about the registration obligation. The sentence also included a finding that the defendant was required to register for life (through inclusion in the order) or for ten years (through omission from the order). The New Act retroactively changed these sentence orders, and now imposes a new sentence through the alteration of terms contained within the orders.
(Filing 345, at CM/ECF pp. 189-190.)
For this argument, Plaintiffs rely on a recent decision by the Ohio Supreme Court, State v. Bodyke, __ N.E.2d __, 2010 WL 2219064 (Ohio June 3, 2010), which held that amendments made to Ohio’s sex offender registration law, requiring the attorney general to reclassify offenders who previously were classified by Ohio judges, violates the separation-of-powers doctrine. The court determined that the “provisions governing the reclassification of sex offenders already classified by judges under Megan’s Law violate the separation-of-powers doctrine for two related reasons: the
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reclassification scheme vests the executive branch with authority to review judicial decisions, and it interferes with the judicial power by requiring the reopening of final judgments.” Id., 2010 WL 2219064 at *11. This case is readily distinguishable since under Nebraska’s former law, the classification of offenders was made by the Nebraska State Patrol, not the courts. See Neb. Rev. Stat. § 29-4013 (Reissue 2008).
Plaintiffs state that under the former law “the sentencing court had discretion to exempt a defendant from the registration requirements for specified crimes” (filing 345, at CM/ECF p. 189), but this is not accurate. As I read the law, there was no discretionary exemption; instead, courts were required to make a determination of whether persons convicted of certain offenses were within the scope of the registration requirements. Both before and after being amended by LB 97 and LB 285, Section 294003(1) provided that persons required to register included those convicted of “[k]idnapping a minor pursuant to section 28-313, except when the person is the parent of the minor and was not convicted of any other offense in this section;” “[f]alse imprisonment of a minor pursuant to section 28-314 or 28-315;” and “[d]ebauching a minor pursuant to section 28-805[.]” Former Section 29-4003(2) provided that “[i]n the case of a person convicted of a violation of section 28-313, 28-314, 28-315, or 28-805, the convicted person shall be subject to the Sex Offender Registration Act, unless the sentencing court determines at the time of sentencing, in light of all the facts, that the convicted person is not subject to the act.” Neb. Rev. Stat. § 29-4003(2) (Reissue 2008).
Plaintiffs also state that under the former law “[i]f the defendant was subject to lifetime registration, the sentencing court must find that the defendant committed an aggravated offense, had a prior conviction for a registrable offense, or was required to register for life in another jurisdiction.” (Filing 345, at CM/ECF p. 189.) Again, these are findings that did not involve an exercise of discretion by the sentencing court. See State v. Worm, 680 N.W.2d at 161 (“[T]hat the sentencing court must find whether an aggravated offense occurred as part of the sentencing order does not indicate an intent to impose punishment because the court has no discretion; the finding is mandatory.”).
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Under former Section 29-4007, as now, the sentencing courts simply notified those persons convicted of registrable offenses of their obligations under SORA. This notification procedure does not prevent the legislature from changing the law.
CONCLUSION
A trial is necessary to determine the constitutionality of Neb. Rev. Stat. §§ 29-4006(1)(k)&(s), 29-4006(2), and 28-322.05 (West, Operative Jan. 1, 2010), except insofar as I have determined that § 29-4006(2) violates the Fourth Amendment rights of Plaintiffs who were previously convicted of sex crimes but who were not on probation, parole or court-monitored supervision on or after January 1, 2010. As to all other statutory provisions enacted or amended by Nebraska Laws 2009, LB 97 and LB 285, I find no merit to Plaintiffs’ constitutional challenges.58
Accordingly,
IT IS ORDERED:
1. Defendants’ original motion for summary judgment (Case No. 8:09CV456 filing 317, Case No. 4:09CV3266 filing 23, Case No. 4:10CV3004 filing 22, Case No. 4:10CV3005 filing 17) is denied without prejudice, as moot.
2. Defendants’ amended motion for summary judgment (Case No. 8:09CV456 filing 336, Case No. 4:09CV3266 filing 35, Case No. 4:10CV3004 filing 34, Case No. 4:10CV3005 filing 29) is granted in part and denied in part, as follows:
58 I have considered all claims alleged by Plaintiffs, and all arguments presented in their briefs. If a particular claim or argument is not discussed in this opinion, it is only because I deemed such a discussion redundant or otherwise unnecessary to an understanding of the opinion.
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a. The motion is granted as to all claims alleged by Plaintiffs, except their claims challenging the constitutionality of: (1) Neb. Rev. Stat. § 29-4006(1)(k)&(s) (West, Operative Jan. 1, 2010); (2) Neb. Rev. Stat. § 29-4006(2)(West, Operative Jan. 1, 2010); and (3) Neb. Rev. Stat. § 28-322.05 (West, Operative Jan. 1, 2010).
b. As to those excepted claims, the motion is denied.
3. Plaintiffs’ motion for summary judgment (Case No. 8:09CV456 filing 344, Case No. 4:09CV3266 filing 41, Case No. 4:10CV3005 filing 35) is granted in part and denied in part, as follows: a. The motion is granted with respect to their claim that Neb. Rev. Stat. § 29-4006(2) violates the Fourth Amendment rights (and corresponding rights under Nebraska Constitution, Art. I, § 7) of Plaintiffs who were previously convicted of sex crimes but who were not on probation, parole or court-monitored supervision on or after January 1, 2010. b. In all other respects, the motion is denied.
4. Defendants’ objections to Plaintiffs’ exhibits (Case No. 8:09CV456 filing 349, Case No. 4:09CV3266 filing 46, Case No. 4:10CV3005 filing 40) are denied without prejudice.
5. Within 30 days, the parties shall provide me with a stipulation designating those Plaintiffs who fit within this category–“sex offenders” who were not on probation, parole or court-monitored supervision as of January 1, 2010–together with the date when the offender was no longer under criminal justice supervision. If, for some reason, the parties cannot reach agreement, they shall arrange a telephone conference with me by contacting my judicial assistant.
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6. These cases are referred to Magistrate Judge Zwart for further progression, as appropriate.

August 16, 2010.

BY THE COURT:
Richard G. Kopf
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.
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 8:09-cv-00456-RGK-CRZ Doc # 384 Filed: 04/19/11 Page 1 of 20 - Page ID # 4327

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

JOHN and JANE DOE 1-36, et al.,

)

Plaintiffs,

)

)

v.

)

STATE OF NEBRASKA, et al.,

)

Defendants.

)

)

JOHN DOE, et al.,

)

Plaintiff,

)

)

v.

)

STATE OF NEBRASKA, et al.,

)

Defendants.

)

)

)

JOHN DOE, et al.,

)

Plaintiff,

)

)

v.

)

STATE OF NEBRASKA, et al.,

)

Defendants.

)

)

8:09CV456 4:09CV3266 4:10CV3005

MEMORANDUM AND ORDER

This matter is before the court on the plaintiffs’ motion to compel the defendants to comply with discovery requests (filing no. 374). For the reasons set forth below the motion is granted in part and denied in part.

BACKGROUND

These consolidated cases involve the plaintiffs’ challenge to the constitutionality of amendments to Nebraska’s Sex Offender Registration Act (“SORA”). The plaintiffs are challenging parts of Legislative Bills 97 (LB 97) and 285 (LB 285) which were passed by the

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Nebraska Legislature and signed into law by the Governor in May of 2009. The parties filed competing motions for summary judgment, and the Honorable Richard G. Kopf issued his ruling on August 16, 2010, (filing no. 354).
Although many of the issues were resolved by summary judgment, Judge Kopf determined several issues of fact remained. Specifically, the following issues remain for trial:
• Whether Neb. Rev. Stat. §§ 29-4006(1)(k)&(s), 29-4006(2), and 28-322.05, either alone or collectively impose a punishment for (1) offenders who had served their time and were no longer under criminal justice supervision on January 1, 2010; and (2) offenders who had been sentenced prior to January 1, 2010, but remained under criminal justice supervision on or after January 1, 2010, in violation of the Ex Post Facto Clause either on the face of the statutes or as applied.
• Whether Neb. Rev. Stat. § 29-4006(2) violates the Fourth Amendment as to offenders who were previously convicted of sex crimes and who were on probation, parole or court-monitored supervision on or after January 1, 2010.
• How Neb. Rev. Stat. § 28-322.05 actually operates and whether its operation violates the Due Process Clause of the Fourteenth Amendment and the First Amendment.
• How Neb. Rev. Stat. § 29-4006(1)(k)&(s) actually operates and whether it violates plaintiffs’ First Amendment Right to free speech.
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Discovery commenced, and the plaintiffs have served Interrogatories and Requests for Production on the various defendants. The respective defendants have raised several objections to a number of the Interrogatories and Requests for Production, including the following:

Defendant Douglas County Attorney

Interrogatory No. 2:

Identify all documents and any correspondence, in any form or medium, which relate in any way to the enforcement of the Nebraska Sex Offender Registration Act over the past three (3) years.

Response:

This is a facial and as-applied challenge to the Nebraska Sex Offender Registration Act and, therefore, Defendants object to this interrogatory as overly broad, unduly burdensome, lacking any relevance to the issues in this suit, and not reasonably calculated to lead to the discovery of admissible evidence. Furthermore, to the extent any documents exist, they are subject to the attorney-client, work product, and legislative privilege.

Defendant Jon Bruning, Nebraska Attorney General

Interrogatory No. 1: Response:

Identify all organizations and individuals consulted in the drafting and editing of the current version of the Nebraska Sex Offender Registration Act.
This is a facial and as-applied challenge to the Nebraska Sex Offender Registration Act and, therefore, Defendants object to this interrogatory as overly broad, unduly burdensome, lacking any relevance to the issues in this suit, and not reasonably calculated to lead to the discovery of admissible evidence.

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Interrogatory No. 2:

Identify all documents and any correspondences, in any form or medium, which relate in any way to the allegations in the Amended Complaint or the Answer to the Amended Complaint.

Response:

This is a facial and as-applied challenge to the Nebraska Sex Offender Registration Act and, therefore, Defendants object to this interrogatory as overly broad, unduly burdensome, lacking any relevance to the issues in this suit, and not reasonably calculated to lead to the discovery of admissible evidence. Furthermore, to the extent any documents exist, they are subject to the attorney-client, work product, and legislative privilege.

Defendant State of Nebraska

Interrogatory No. 1: Response: Interrogatory No. 2: Response:

Identify all State employees involved in drafting and editing the current version of the Nebraska Sex Offender Registration Act.
This is a facial and as-applied challenge to the Nebraska Sex Offender Registration Act and, therefore, Defendants object to this interrogatory as overly broad, unduly burdensome, lacking any relevance to the issues in this suit, and not reasonably calculated to lead to the discovery of admissible evidence.
Identify all documents and any correspondences, in any form or medium, in the custody of the State, including the State Legislature, that relate in any way to the allegations in the Amended Complaint and the Answer to the Amended Complaint.
This is a facial and as-applied challenge to the Nebraska Sex Offender Registration Act and, therefore, Defendants object to this interrogatory as overly broad, unduly burdensome, lacking any relevance to the issues in this
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suit, and not reasonably calculated to lead to the discovery of admissible evidence. Furthermore, to the extent any documents exist, they are subject to the attorney-client, work product, and legislative privilege.
Requests for Production as to all Defendants

Request No. 1: Request No. 2: Request No. 3: Request No. 4: Request No. 5:

All communications and correspondences between the Nebraska Attorney General’s Office and the Nebraska State Legislature regarding LB 285, including, but not limited to, all electronically stored communication or correspondence.
All communications and correspondence between the Nebraska Attorney General’s Office and Nebraska State Legislature regarding LB 97, including, but not limited to, all electronically stored communication or correspondence.
All interoffice communication and correspondences within the Nebraska Attorney General’s Office regarding the drafting and editing of LB 285, including, but not limited to, all electronically stored communication or correspondence.
All interoffice communication and correspondences within the Nebraska Attorney General’s Office regarding the drafting and editing of LB 97, including, but not limited to, all electronically stored communication or correspondence.
All interoffice communication within the Nebraska Legislature regarding the drafting, editing, debate, and passage of LB 285, including, but not limited to, all electronically stored communication or correspondence.

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Request No. 6: Request No. 7: Request No. 8: Request No. 9: Request No. 10: Request No. 12: Request No. 13: Response to All:

All interoffice communication within the Nebraska Legislature regarding the drafting, editing, debate, and passage of LB 97, including, but not limited to, all electronically stored communication or correspondence.
All interoffice communication and correspondence within the Nebraska State Patrol regarding LB 285, including, but not limited to, all electronically stored communication or correspondence.
All interoffice communication and correspondence within the Nebraska State Patrol regarding LB 97, including, but not limited to, all electronically stored communication or correspondence.
All other memorandum, notes, and other documents relating to the drafting, editing, debate, or passage of LB 285.
All other memorandum, notes, and other documents relating to the drafting, editing, debate, or passage of LB 97.
For the past three (3) years, all documentation and correspondence of any kind, including, but not limited to, electronic information and correspondence, pertaining to the enforcement of the Nebraska Sex Offender Registration Act.
For the past three (3) years, all documentation and correspondence of any kind, including, but not limited to, electronic information and correspondence, pertaining to the interpretation of the Nebraska Sex Offender Registration Act.
This is a facial and as-applied challenge to the Nebraska Sex Offender Registration Act and, therefore, Defendants
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object to this interrogatory as overly broad, unduly burdensome, lacking any relevance to the issues in this suit, and not reasonably calculated to lead to the discovery of admissible evidence. Furthermore, to the extent any documents exist, they are subject to the attorney-client, work product, and legislative privilege.
ANALYSIS
Parties may discover relevant, unprivileged information that is admissible at trial or reasonably calculated to lead to admissible evidence. Fed. R. Civ. P. 26(b)(1).
Rule 26(b) of the Federal Rules of Civil Procedure is widely recognized as a discovery rule which is liberal in scope and interpretation, extending to those matters which are relevant and reasonably calculated to lead to the discovery of admissible evidence. Kramer v. Boeing Co., 126 F.R.D. 690, 692 (D.Minn.1989) (and cases cited therein). While the standard of relevance in the context of discovery is broader than in the context of admissibility (Rule 26(b) clearly states that inadmissibility is no grounds for objection to discovery), Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978), Culligan v. Yamaha Motor Corp., USA, 110 F.R.D. 122 (S.D.N.Y.1986), this often intoned legal tenet should not be misapplied so as to allow fishing expeditions in discovery. Some threshold showing of relevance must be made before parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case.
Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992).
Once the requesting party meets the threshold relevance burden, “[a]ll discovery requests are a burden on the party who must respond thereto. Unless the task of producing or answering is unusual, undue or extraordinary, the general rule requires the entity answering or producing to bear that burden.” Continental Ill. Nat’l Bank & Trust Co. Of Chicago v. Caton, 136 F.R.D. 682, 684-85 (D. Kan. 1991). The party opposing the motion to compel must provide specific
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explanations or factual support as to how each request is improper. St. Paul Reinsurance Co., Ltd. v. Commercial Fin. Corp., 198 F.R.D. 508, 511-12 (N.D. Iowa 2000).
“The fact that production of documents would be burdensome and expensive and would hamper a party’s business operation is not a reason for refusing to order production of relevant documents.” Wagner v. Dryvit Systems, Inc., 208 F.R.D. 606, 610 (D. Neb. 2001) (internal citations omitted). The standard is whether the burden or expense is “undue” and whether the “hardship is unreasonable in the light of the benefits to be secured from the discovery.” Id. (quoting Wright, Miller & Marcus, Federal Practice and Procedure § 2214, p. 435 (1994)). A party claiming requests are unduly burdensome cannot make conclusory allegations, but must provide some evidence regarding the time or expense required. See Horizon Holdings, L.L.C. v. Genmar Holdings, Inc., 209 F.R.D. 208, 213 (D. Kan. 2002).
With these basic principles in mind, each of the defendants’ objections regarding the motion to compel are addressed below.
1. Relevance
The defendants assert that much of the information requested by the plaintiffs is not relevant. For instance, the defendants argue that none of the requested information may be used to establish legislative intent and only the plain language of the statute and the official legislative history may be used to determine the express or implied intent of the legislature. Further, they argue, information from the Douglas County Attorney, the Nebraska Attorney General’s Office and the Nebraska State Patrol cannot lead to the discovery of admissible evidence.
It is true, particularly in Ex Post Facto Clause cases, that courts generally do not look beyond the face of the statute, the stated purpose of the statute, and the official legislative history.
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See United States v. May, 535 F.3d 912, 919-920 (8th Cir. 2008); see also In re DNA Ex Post Facto Issues, 561 F.3d 294, 298 (4th Cir. 2009)(stating the court considers the structure and design of the statute as well as the declared legislative intent); Hatton v. Bonner, 356 F.3d 955, 961-62 (9th Cir. 2004)(considering the official statements of the legislature and the structure of the statute); Femedeer v. Haun, 227 F.3d 1244, 1249 (10th Cir. 2000)(considering the language of the statute and the legislative record); Taylor v. State of Rhode Island, 101 F.3d 780, 783-84 (1st Cir. 1996). However, these cases do not address the use of other evidence of legislative intent, nor do they discuss whether such an inquiry is appropriate. Thus, they do not expressly rule out the use of materials beyond the official legislative record, nor comment on whether such inquiries are proper. See Kay v. City of Rancho Palos Verdes, case no. cv02-03922, 2003 WL 25294710 at *8-9 (C.D.Cal. 2003)(finding case law did not expressly forbid further inquiry into legislative intent in a case involving a “Bill of Attainer” claim).
Moreover, a number of cases, particularly those involving potential violations of constitutional rights, have allowed queries into legislators’ motivations. See South Dakota Farm Bureau Inc. v. Hazeltine, 340 F.3d 583, 594-96 (8th Cir. 2003) (reviewing meeting notes and materials to determine whether a discriminatory intent existed); see also Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977) (noting it may be appropriate to examine legislative motivations); Hayden v. Paterson, 594 F.3d 150, 163 (2d Cir. 2010) (noting discriminatory intent is rarely susceptible to direct proof, and historical background is a proper source of inquiry in a due process case). While those cases did not involve the Ex Post Facto clause, they do address other constitutional rights in which legislative intent was at issue.
As Judge Kopf noted in his opinion on the competing summary judgment motions, the acrimonious statements by the legislator who introduced the bill provides some evidence that sections LB 97 and LB 285 were meant to be punitive. Thus, given the mandate on the parties to further develop the record, the unique nature of the disputed statutes, and the case law finding review of legislative materials is not strictly forbidden in all cases, the court does not believe
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inquiries into the legislative intent behind the drafting, implementation and enforcement of the statutes in question are irrelevant. Thus, the court overrules defendants’ relevancy objections.
2. Overly Broad
Defendants also argue that the disputed discovery requests are overly broad. A few of plaintiffs’ request do not appear to be narrowly tailored enough to meet the threshold showing of relevance.
a. Discovery seeking information regarding SORA, as it existed prior to January 1, 2010
Requests for Production Nos. 12 and 13 seek information from the past three (3) years related to interpretation and enforcement of the Nebraska Sex Offender Registration Act. However, such a request likely requires the production of information well beyond the disputed statutes in question. Likewise, Interrogatory No. 2, served on defendant Douglas County Attorney, Donald Kleine requests for three (3) years worth of correspondence and documents related to the enforcement of the Nebraska Sex Offender Registration Act.
The vast majority of the statutes in the Nebraska Sex Offender Registration Act are not implicated in the present case. Indeed, the plaintiffs have not explained, nor does the court understand, how the enforcement of the Nebraska Sex Offender Registration Act, as it existed prior to January 1, 2010 is relevant to this proceeding. Thus, to the extent the requests seek information about the enforcement Nebraska Sex Offender Registration Act as it existed prior to January 1, 2010, that information is not relevant and the plaintiffs’ motion to compel is denied to that extent.
b. Interrogatories requesting “all” documents which relate “in any way” to the Amended Complaint or Answer.
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Interrogatory No. 2 served on the Nebraska Attorney General and Interrogatory No. 2 served on the State of Nebraska ask the defendants to identify “all” documents and correspondence, “that relate in any way” to the allegations in the Amended Complaint and the Answer to the Amended Complaint. These requests are not limited in any way and are akin to asking the defendants to identify “all documents related in any way to this case.” The request makes no allowance for the fact a number of the claims in the Amended Complaint have been disposed of, thus, it is likely documents and communications included in these Interrogatories are no longer relevant to this case. The unfettered nature of these requests appears to be a fishing expedition. See, e.g, WWP, Inc. v. Wounded Warriors Family Support, Inc., 628 F.3d 1032, 1038 (8th Cir. 2011)(upholding the district court’s determination that a request seeking all documents without regard to source or location was overly broad). Therefore, Interrogatory No. 2 served on the Nebraska Attorney General and Interrogatory No. 2 served on the State of Nebraska are overly broad.
3. Privileges
The defendants also assert several evidentiary privileges which, they argue, preclude responses to virtually all of the disputed discovery. The respective privileges will be discussed in turn below.
a. Federal Law Applies
The parties apparently disagree on whether federal law or state law applies to the privileges asserted in this case. Fed. R. Evid. 501 provides:
Except as otherwise required . . . the privilege of a witness, person, government, State or political subdivision thereof shall be governed by the principles of
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common law as they may be interpreted by the courts of the United States in light of reason and experience. . . . However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State or political subdivision thereof shall be determined in accordance with State law.
Fed. R. Evid. 501.
Courts that have addressed the issue in cases based on federal question jurisdiction have routinely applied federal privilege law. See Hollins v. Powell, 773 F.2d 191, 196 (8th Cir. 1985); Geissal v. Moore Medical Corp., 192 F.R.D. 620, 623 (E.D. Mo. 2000); see also In re Sealed Case, 381 F.3d 1205, 1212 n. 7 (D.C. Cir. 2004)(when a case is before a federal court on the basis of federal question jurisdiction, federal law of privilege applies even where pendent state law claims are present). In the instant case, the matter is before the court on federal question jurisdiction. Thus, the court will apply the federal law of privilege.
b. Legislative Privilege
Much of the parties’ time and effort regarding this dispute centers around whether the defendants are protected by the common law legislative privilege – one that defendants allege protects state legislators from having to respond to discovery requests. The genesis of this privilege is found in the Speech and Debate Clause of the United States Constitution. Article I, Section 6, provides that “for any Speech or Debate in either House” legislators “shall not be questioned in any other Place.” Based on this language, courts have found that federal Senators and Representatives are protected from civil actions in at least two respects: (1) federal legislators benefit from “legislative immunity” and are absolutely immune from suit for actions they engaged in as part of the legislative process and (2) federal legislators also benefit from a “legislative privilege” that protects federal legislators from having to testify or supply
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other evidence in many instances.1 Supreme Court of Va. v. Consumers Union of the United States, 446 U.S. 719, 732-34 (1980); Rodriguez v. Pataki, 280 F.Supp.2d 89, 94-6 (S.D.N.Y. 2003). The evidentiary privilege has been interpreted to allow federal legislators to avoid the production of documents in certain cases. See Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 420 (D.C. Cir. 1995).
The Speech and Debate Clause only applies to members of Congress and Senators and does not, by its plain language, apply to state legislators. However, Federal courts have wrestled with whether a common law evidentiary legislative privilege applies to state legislators.2 See Village of Arlington Heights, 429 U.S. at 268; National Assn. of Social Workers v. Harwood, 69 F.3d 622, 631 (1st Cir. 1995); Star Distribs. Ltd. v. Marino, 613 F.2d 4, 9 (2d. Cir. 1980); Rodriguez, 280 F.Supp.2d at 94-6; Miles-Un-Ltd., Inc., v. Town of New Shoreham, 917 F.Supp. 91, 97 (D.N.H. 1996). While a few such cases have held that state and local government legislators are immune from providing testimony in most civil cases,3 the evidentiary legislative privilege has not been extended to all document production. See Small v. Hunt, 152 F.R.D. 509, 513 (E.D.N.C. 1994); Marylanders for Fair Representation,
1 The most often cited rational for the Speech and Debate Clause is two-fold: (1) the need to avoid interference by the Executive or Judiciary Branches and (2) “the desire to protect legislative independence.” United States v. Gillock, 445 U.S. 360, 369 (1980).
2 It is true state legislators are absolutely immune from suit in actions brought in federal court under 42 U.S.C. § 1983. See Tenney v. Brandhove, 341 U.S. 367 (1951). However, Tenney and its progeny do not stand for the proposition that state legislators are never required to supply evidence in a federal civil case where, like the instant case, there is no threat of personal liability to any of the state legislators.
3 The legislative privilege does not exist for state legislators in federal criminal prosecutions. United States v. Gillock, 445 U.S. 360, 373-74 (1980); United States v. Vesterso, 828 F.2d 1234, 1243 (8th Cir. 1987).
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Inc. v. Schaefer, 144 F.R.D. 292, 302 n. 20 (D. Md. 1992). That is, state and local officials may be protected from testifying, but are not necessarily exempted from producing documents.
Indeed, in most cases the only evidentiary legislative privilege regarding the production of documents available to state legislators (and other local government officials) is a very narrow and qualified one, sometimes referred to as a “deliberative process privilege.”4 See In re Grand Jury, 821 F.2d 946, 958-59 (3d Cir. 1987); Kay, 2003 WL 25294710 at *8-9; Rodriguez, 280 F. Supp. 2d at 95-6; Newport Pacific Inc. v. County of San Diego, 200 F.R.D. 628, 637-639 (S.D. Cal. 2001); Manzi v. DiCarlo, 982 F.Supp 125 (E.D.N.Y. 1997); Florida Assn. of Rehabilitation Facilities, Inc. v. State of Florida Dept. of Health and Rehabilitation Services, 164 F.R.D. 257, 266-68 (N.D. Fla. 1995); Corporation Insular de SeGuros v. Garcia, 709 F.Supp. 288 (D. Puerto Rico 1989).
The deliberative process privilege protects only the legislative decision making process. Courts have recognized the value of the privilege “to protect the confidentiality of communications with the office-holder involving the discharge of his or her office . . . .” Florida Assn. of Rehabilitation Facilities, Inc., 164 F.R.D. at 267. This privilege is generally deemed to apply only to “communications involving opinions, recommendations or advice about legislative decisions.” In re Grand Jury, 821 F.2d at 959. Such materials may be entitled to protection in order to “promote earnest discussion within governmental walls.” Corporacion Insular, 709 F.Supp. at 296 (citing United States v. Nixon, 418 U.S. 683, 705 (1974)). However, documents containing factually based information used in the decision-making process or disseminated to legislators or committees, such as committee reports and minutes
4 While some courts have created a distinction between an evidentiary legislative privilege and the deliberative process privilege, commentators have opined that the deliberative process privilege, particularly when applied to document production, is simply one type of legislative privilege. See 26A Wright and Graham, Federal Practice and Procedure: Evidence § 5675 (West 2010); see also Corporation Insular, 709 F.Supp at 295.
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of meetings, are not entitled to protection under the deliberative process privilege. See MilesUn-Ltd., 917 F.Supp. at 100-01(allowing for the discovery of records and documentation pertaining to the challenged city ordinance); Florida Assn. of Rehabilitation Facilities, Inc., 164 F.R.D. at 267; Small, 152 F.R.D. at 513; Marylanders for Fair Representation, Inc., 144 F.R.D. at 302, n. 20 (D. Md. 1992).
Various courts have provided guidelines for the application of the deliberative process privilege with regard to requests for production of documents. See Qamhiyah v. Iowa State University, 245 F.R.D. 393, 396-97 (S.D. Iowa 2007) (applying the deliberative process privilege in the context of a claim under the Freedom of Information Act); see also Corporation Insular, 709 F.Supp. at 295; Florida Assn. of Rehabilitation Facilities, Inc., 164 F.R.D. at 26768 . These cases generally hold that a deliberative process privilege is qualified and protects only documents which are pre-decisional, deliberative and reflect the subjective intent of the legislators. Qamhiyah, 245 F.R.D. at 396. That is, the document must have been prepared before the law or policy was enacted, must relate directly to the decision making process, and must contain opinion or subjective material. See Missouri Coalition for Environment Foundation v. U.S. Army Corps of Engineers, 542 F.3d 1204, 1211 (8th Cir. 2008)(discussing the deliberative privilege in the context of the Freedom of Information Act). Objective facts will not be shielded from production by the deliberative process privilege. See United States v. Irvin, 127 F.R.D. 169, 172 (C.D. Cal. 1989).
Further, even if the documents requested appear to fall under the auspices of the deliberative process privilege, protection from production is not a given. Courts evaluating whether to apply the deliberative process privilege generally treat it as a qualified privilege and only protect documents from discovery after applying a balancing test based on the following factors: “(1) the relevance of the evidence; (2) the availability of other evidence; (3) the government’s role in the litigation; and (4) the extent to which disclosure would hinder frank
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and independent discussion regarding contemplated policies and decisions.” Qamhiyah, 245 F.R.D. at 396 (quoting F.T.C. v. Warner Communications, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984)); see also Rodriguez, 280 F.Supp.2d at 101 (quoting In re Franklin Nat’l Bank Secs. Litig., 478 F.Supp. 577, 583 (E.D.N.Y. 1979).
In this case, several of the interrogatories and requests for production appear to implicate the legislative privilege. For instance, Requests for Production Nos. 5, 6, 9, 10, 12 and 13 all request documents and correspondence which could include those produced by legislators or their aides. The plaintiffs argue the legislative privilege is inapplicable, while the defendants are attempting to claim essentially all of the disputed discovery requests are subject to the legislative privilege. Neither parties’ argument is wholly persuasive or consistent with the law.
The defendants arguments for a broad and absolute legislative privilege regarding the production of documents are unavailing. Virtually every case cited by the defendants involved attempts to depose government officials or call them to the witness stand. The cases regarding document production involved subpoenas to federal lawmakers. See Brown & Williamson Tobacco Corp., 62 F.3d at 420; United Transportation Union v. Springfield Terminal Railway Co., 132 F.R.D. 4, 6 (D. Me. 1990). These holdings are not applicable to cases, like the one now before the court, involving a state governmental body in a federal court.
This court agrees with the reasoning of many courts that have held any legislative privilege regarding the production of documents available to state legislators is a qualified “deliberative process privilege.” Kay, 2003 WL 25294710 at *15-17; Newport Pacific Inc., 200 F.R.D. at 637-639; Rodriguez, 280 F. Supp. 2d at 95-96; Manzi, 982 F.Supp at 129; Corporation Insular, 709 F.Supp. at 296; Florida Assn. of Rehabilitation Facilities, Inc., 164 F.R.D. at 266-68. As summarized by the Third Circuit:
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These limitations reflect a careful tailoring of the [deliberative process] privilege to achieve its purpose of protecting confidentiality without unduly inhibiting the truth-finding process of litigation. . . . [W]e therefore reject the . . . assumption that a privilege protects all state legislative documents which may somehow reveal the “thought processes” of state legislators. Confidentiality concerns do not sweep so broadly. If a deliberative process privilege does protect state legislators, it is limited to communications involving opinions, recommendations or advice about legislative decisions. . . . [S]everable factual material cannot be privileged.
In re Grand Jury, 821 F.2d at 959.
Based on this and the other case law examined above, the court finds only documents or communications that were created prior to the passage and implementation of LB 97 and LB 285 that involve opinions, recommendations or advice about legislative decisions between legislators or between legislators and their aides – that is, documents that are pre-decisional, deliberative and contain matters of opinion – will be considered for protection under the deliberative process privilege.
c. Attorney-Client and Work-Product Privileges
As with their claim of legislative privilege, the defendants have not identified any specific documents for the plaintiff or the court to evaluate its attorney-client privilege and work product claims. It is highly unlikely that defendants’ claims that all of the disputed requests involve documents that fall under attorney-client and work product protection. For instance, Request Nos. 7 and 8 seek all “communication and correspondences within the Nebraska State Patrol” regarding LB 285 and LB 97. Asserting a blanket privilege for these documents simply is not sufficient.
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d. Production Agreements/Privilege Logs
To the extent the defendants stand on their privilege claims, they shall first confer with the plaintiffs in good faith to determine if an agreement can be reached regarding the scope, type, and method of document disclosure. The parties are encouraged to consider using protective orders, or “claw-back” agreements such as those contemplated under Rule 502(d) and (e). See, e.g., Jicarilla Apache Nation v. United States, 91 Fed. Cl. 489, 494 (Fed. Cl. 2010) (“If defendant truly is concerned that the production here would occasion a waiver of the privilege in other cases, it can easily remedy that matter by formally seeking relief under [Rule 502(d)].”); Capitol Records, Inc, v. MP3tunes, LLC, 261 F.R.D. 44, 51 (S.D.N.Y. 2009) (explaining that if the defendant wants to ensure an ability to timely respond to discovery despite the need to review its emails for privilege issues, it can confer with the plaintiff and seek a court-ordered “clawback agreement”).
If an agreement cannot be reached between the parties, consistent with the court’s general practice, if any document is withheld from production or disclosure based on a claim of confidentiality under the attorney-client privilege, deliberative process privilege, or work product doctrine, the defendants shall, pursuant to Fed. R. Civ. P. 26(b)(5)(A), for each document withheld, disclose a description of the document with as much specificity as is practicable without disclosing its contents, including:
(a) the general nature of the document; (b) the identity and position of its author; (c) the date it was written; (d) the identity and position of its addressee;
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(e) the identities and positions of all persons who were given or have received copies of it and the dates copies were received by them;
(f) the document's present location and the identity and position of its custodian; and
(g) the specific reason or reasons why it has been withheld from production or disclosure.
Upon receiving the defendants’ privilege log, the plaintiffs may then confer in good faith to resolve any remaining dispute regarding the production of a document or documents, and if it cannot be resolved, the plaintiffs may then move to compel specific documents identified on the privilege log.
To be clear, as to the deliberative process privilege, the privilege log shall list only those documents which arguably fall within the scope of the privilege as defined above. To the extent the requested documents are not protected by the attorney -client privilege or work product doctrine; are otherwise responsive to plaintiffs’ discovery requests; contain factual information regarding the drafting, passage or enforcement of LB 97 and LB 285; or were communicated to or shared with non-legislative members, those documents shall be produced.
IT IS ORDERED:
1) The Plaintiffs’ motion to compel, (filing no. 374), is granted in part and denied in part as follows:
a. The motion is denied to the extent Interrogatory No. 2, served on defendant Douglas County Attorney, Donald Kleine, and Requests for Production Nos. 12 and 13 seek information regarding the enforcement of the Nebraska Sex Offender Registration Act as it existed prior to January 1, 2010.
b. The motion to compel is denied as to Interrogatory No. 2, served on the Nebraska Attorney General and State of Nebraska.
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c. On or before April 29, 2011, the parties shall confer to determine if an agreement (e.g., a protective order or claw-back agreement) can be reached regarding the scope, type, and method of document disclosure. Any agreement reached shall be submitted for court review and approval on or before May 6, 2011.
d. If the parties cannot reach a full agreement as to completion of the discovery at issue, on or before May 13, 2011, the defendants shall prepare and serve on the plaintiffs a privilege log (as described in this memorandum and order) identifying any documents for which the defendants assert either the deliberative process privilege, the attorneyclient privilege, or work product protection as a basis for non-disclosure.
e. The discovery and deposition deadline is extended to July 15, 2011. Motions to compel discovery must be filed on or before July 1, 2011.
2) The defendants’ unopposed motions to continue, (filing no. 383), are granted. The pretrial conference and trial of the above-captioned cases are continued pending further order of the court.
3) The clerk shall file this memorandum and order in the lead case, 8:09-cv-00456-RGK-CRZ, as a spread text order.
DATED this 19th day of April, 2011.
BY THE COURT:
s/ Cheryl R. Zwart United States Magistrate Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court
for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.
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 8:09-cv-00456-RGK-CRZ Doc # 442 Filed: 02/28/12 Page 1 of 7 - Page ID # 4782

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

JOHN and JANE DOE 1-36, et al.,

)

Plaintiffs,

)

)

v.

)

STATE OF NEBRASKA, et al.,

)

Defendants.

)

)

JOHN DOE, et al.,

)

Plaintiff,

)

)

v.

)

STATE OF NEBRASKA, et al.,

)

Defendants.

)

)

JOHN DOE, et al.,

)

Plaintiff,

)

)

v.

)

STATE OF NEBRASKA, et al.,

)

Defendants.

)

)

8:09CV456 4:09CV3266 4:10CV3005

This matter is before the court on the plaintiffs’ Motion to Compel Disclosure of documents identified in Defendants’ privilege logs. Filing No. 425. For the reasons set forth below, the motion is granted in part and Plaintiffs are entitled to the production of a limited number of documents. The remaining documents shall be submitted to the undersigned for an in camera review.

BACKGROUND

The motion to compel now before the court represents the continuation of an ongoing discovery dispute between the parties reaching back to December 9, 2010 – the date Plaintiffs served discovery requests on Defendants. Defendants responded to the discovery

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requests, but not to the satisfaction of Plaintiffs. A motion to compel followed and was ruled upon by the undersigned on April 19, 2011. Filing No. 384. The motion was granted in part and denied in part and contained instructions for the parties to confer concerning certain documents for which Defendants claimed certain evidentiary privileges.
In response to that order, the parties agreed to protective orders and tailored discovery requests. On July 8, 2011, Defendants served responses to Request for Production of Documents, numbered 3, 4, 7, 8, 12 and 13, along with a privilege log for Requests 3 and 4 asserting the attorney-client privilege. On August 19, 2011, Defendants served an additional privilege log for Requests for Production numbered 1, 2, 5, 6, 9 and 10, asserting the attorney-client and deliberative process privileges. On October 21 and November 1, 2011, Plaintiffs’ counsel, Rodney Dahlquist, Jr., conferred with defense counsel, Kevin Griess, regarding potential disclosure of the documents listed on the privilege log. However, the parties were, and remain, unable to come to an agreement, thereby precipitating the necessity of the Motion to Compel Disclosure now before the court.
ANALYSIS
As set forth in their privilege logs and brief in opposition to this motion, Defendants resist the production of a number of documents. Defendants assert the majority of the documents are protected by the attorney-client privilege. They also assert the deliberative process privilege, or a combination of the deliberative process privilege and the attorneyclient privilege, preclude the production of the remaining documents.
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Attorney-Client Privilege
As both parties acknowledge, the Eighth Circuit essentially adopted the Supreme Court Standard 503 in defining the attorney-client privilege as it exists in federal court. In re Bieter Co., 16 F.3d 929, 935 (8th Cir. 1994).
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between himself or his representative and his lawyer or his lawyer's representative, or (2) between his lawyer and his lawyer's representative, or (3) by him or his lawyer to a lawyer representing another in a matter of common interest, or (4) between representatives of the client or between the client and a representative of the client, or (5) between lawyers representing the client.
Id. (citing Supreme Court Standard 503(b)). The party seeking to avoid production of the communications has the burden to prove the documents qualify for the protection. Hollins v. Powell, 773 F.2d 191, 196 (8th Cir. 1985).
A review of the privilege log provided to Plaintiffs reveals four documents that are not privileged. On the privilege log dated July 9, 2011, Defendants do not identify an author for documents numbered 22, 23, and 24. Filing No. 425-3, Ex. B. Similarly, Defendants do not identify a recipient of document number 25. Without such information, Defendants cannot meet their burden of proving these documents are protected by the attorney-client privilege. Accordingly, documents 22, 23, 24, and 25 must be produced.
The status of the remaining documents identified on the privilege logs is unclear. It is well established that governmental agencies enjoy the protection of the attorney-client privilege . See Coastal Corp. v. Duncan, 86 F.R.D. 514, 520 (D. Del. 1980); see also In re
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Grand Jury Subpoena Duce Tecum, 112 F.3d 910, 915-16 (8th Cir. 1997)(noting the “broad proposition that a governmental body may be a client for the purposes of the attorney-client privilege”). “[W]hen the Government is dealing with its attorneys as would any private party seeking advice to protect personal interests, and needs the same assurance of confidentiality so it will not be deterred from full and frank communications with its counselors.” Center for Medicare Advocacy, Inc. v. United States Department of Health and Human Services, 577 F. Supp. 2d 221, 237 (D.D.C. 2008) (internal quotation marks and citations omitted). However, not every communication between a government agency and government attorneys is protected by the attorney-client privilege. Id. The communication must meet all of the conditions for protection ,including that the communications were facilitating the “rendition of professional legal services.” See Borase v. M/A Com Inc., 171 F.R.D. 10, 14 (D. Mass. 1997)(finding “nonlegal work” and the documents prepared in the fulfillment of nonlegal responsibilities are not entitled to support under the attorney-client privilege); see also Electronic Privacy Information Center v. Department of Justice, 584 F. Supp. 2d 65, 79 (D.D.C. 2008) (finding attorney-client protection is not available to a government agency simply because the communication involves the government’s counsel); Coastal Corp., 86 F.R.D. at 521 (noting the importance of ensuring the documents meet the requirements for attorney-client protections especially when the government attorneys act as policy makers rather than attorneys).1
At the heart of the parties’ dispute is a disagreement over the capacity in which the attorney general was communicating with the legislature, with other state agencies, and
1 Although this court does not characterize the Attorney General’s primary function as “policy making,” the concern in the Coastal Corp. case is still valid. Where government attorneys perform a variety of functions, the court must investigate exactly what function the government attorneys were fulfilling when making or receiving the communications in question.
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internally regarding the legislation that is the subject of this suit. Plaintiffs contend the Attorney General’s activities in the case amount to lobbying or that the Attorney General’s office was attempting to act as a de facto legislature. Conversely, Defendant argues all of the allegedly privileged communications involving the office of the Attorney General were generated and distributed as part of its provision of legal services. As noted by Defendants, the Attorney General has a wide variety of duties, many of which involve dispensing legal advice to various state agencies. See Neb. Rev. Stat. § 84-205. Of course, not every act the Attorney General performs is necessarily legal in nature. Thus, it falls on the court to determine what type of services the Attorney General was providing when the allegedly privileged communications were disseminated to the various Defendants in this law suit. The vast majority of the entries do not provide sufficient information for the court to determine whether the allegedly privileged documents amount to “confidential communications made for the purpose of facilitating the rendition of professional legal services to [a] client.” In re Bieter Co., 16 F.3d at 935. Accordingly, an in camera review is necessary.
Deliberative Process Privilege
In the undersigned’s memorandum and order dated April 19, 2011 the court defined the types of documents that it will consider for protection under the deliberative process privilege.
[T]he court finds only documents or communications that were created prior to the passage and implementation of LB 97 and LB 285 that involve opinions, recommendations or advice about legislative decisions between legislators or between legislators and their aides – that is, documents that are pre-decisional, deliberative and contain matters of opinion – will be considered for protection under the deliberative process privilege.
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Filing No. 384.
The court further noted that even if documents arguably qualified for the deliberative process privilege, protection will not automatically be given.
Courts evaluating whether to apply the deliberative process privilege generally treat it as a qualified privilege and only protect documents from discovery after applying a balancing test based on the following factors: “(1) the relevance of the evidence; (2) the availability of other evidence; (3) the government’s role in the litigation; and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.” Qamhiyah, 245 F.R.D. at 396 (quoting F.T.C. v. Warner Communications, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984)); see also Rodriguez, 280 F.Supp.2d at 101 (quoting In re Franklin Nat’l Bank Secs. Litig., 478 F.Supp. 577, 583 (E.D.N.Y. 1979).
Filing No. 384.
Defendants have identified a number of documents in their August 19, 2011 privilege log for which they claim protection under the deliberative process privilege. See Filing No. 425-3, Ex. C. A number of these documents appear to facially qualify for the deliberative process privilege, however, as noted above, the court will need to examine the documents and conduct a balancing test to determine if the documents are entitled to protection. Accordingly, all of the documents for which Defendants are claiming the deliberative process privilege shall be produced to the court for an in camera review.
IT IS ORDERED:
1) With respect to the documents numbered 22, 23, 24, & 25 on Filing No. 4253, Ex. B, Plaintiffs’ motion to compel (filing no. 425 ) is granted. Defendants shall produce those documents to Plaintiffs by March 9, 2012.
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2) Defendants shall file the remaining documents identified in Filing Nos. 425-3, Exs. B and C under seal by March 16, 2012 in order for the undersigned to conduct an in camera review and determine if the claimed privileges apply.
3) The clerk shall file this document as a spread text order for all three of the above-captioned cases.
DATED this 28th day of February, 2012. BY THE COURT: S/ Cheryl R. Zwart United States Magistrate Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.
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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

JOHN DOE, et al.,

)

)

Plaintiffs,

)

vs.

)

)

STATE OF NEBRASKA, et al.,

)

)

Defendants.

)

______________________________ )

)

JOHN DOE,

)

)

Plaintiff,

)

)

vs.

)

)

NEBRASKA STATE PATROL, )

et al.,

)

)

Defendants.

)

______________________________ )

)

JOHN DOE,

)

)

Plaintiff,

)

)

vs.

)

)

STATE OF NEBRASKA, et al.,

)

)

Defendants.

)

______________________________ )

8:09CV456 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM AND ORDER
4:10CV3266
4:10CV3005

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Earlier I paraphrased Justice Oliver Wendell Holmes and observed that if the people of Nebraska wanted to go to hell, it was my job to help them get there.1 By that, I meant that it is not my prerogative to second-guess Nebraska’s policy judgments so long as those judgments are within constitutional parameters. Accordingly, I upheld many portions of Nebraska’s new sex offender registration laws even though it was my firm personal view that those laws were both wrongheaded and counterproductive.
However, I had serious constitutional concerns about three sections of Nebraska’s new law. After careful study, I granted summary judgment regarding one claim and decided that a trial was necessary to resolve my other concerns. The trial has now been concluded, and I have decided that the remaining portions of Nebraska’s sex offender registry laws are unconstitutional.
In short, I can only help Nebraskans get to the figurative hell that Holmes spoke of if they follow a constitutional path. For three sections of Nebraska’s new sex offender registry law, Nebraska has violently swerved from that path. I next explain why that is so.
1Filing 92, Case No. 8:09CV456, Memorandum and Order on Motion for Preliminary Injunction, at CM/ECF p. 18 (citing Oliver Wendell Holmes, Jr., as quoted in Ronald K.L. Collins, As Justice Holmes said . . . Oliver Wendell Holmes Jr. on free speech & related matters: selected quotations, First Amendment Center (May 21, 2008) (letter to Harold Laski, May 13, 1919) at http://www.firstamendmentcenter. org/ (last accessed August 29, 2012)).
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I. STATUTES AT ISSUE & PRIOR OPINION ON SUMMARY JUDGMENT MOTIONS
A. Statutes at Issue
Plaintiffs2 challenge the constitutionality—both facially and as applied—of parts of three statutes: Neb. Rev. Stat. §§ 29-4006(1)(k) and (s), 29-4006(2), and 28322.05 (West, Operative Jan. 1, 2010). Generally, sections 29-4006(1)(k) and (s) require disclosure by persons required to register under the Nebraska Sex Offender Registration Act of remote communication device identifiers, addresses, domain names, and Internet and blog sites used; section 29-4006(2) requires registrants to consent to the search and installation of monitoring hardware and software; and section 28-322.05 criminalizes some registrants’ use of social networking web sites, instant messaging, and chat room services accessible by minors.
In relevant part, these statutes provide:
Neb. Rev. Stat. § 29-4006(1)(k) and (s):
(1) Registration information required by the Sex Offender Registration Act shall be entered into a data base in a format approved by the sex offender registration and community notification division of the Nebraska State Patrol and shall include, but not be limited to, the following information:
. . . .
2The numbered Doe plaintiffs are offenders required to register under the Nebraska Sex Offender Registration Act and the lettered Does are family members or people having “some connection with a Doe.” (Transcript of Trial 36:2-8 (“Tr.”).) The transcript of trial may be found at Filings 516-520.
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(k) The person’s remote communication device identifiers and addresses, including, but not limited to, all global unique identifiers, serial numbers, Internet protocol addresses, telephone numbers, and account numbers specific to the device;3
. . . .
(s) All email addresses, instant messaging identifiers, chat room identifiers, global unique identifiers, and other Internet communication identifiers that the person uses or plans to use, all domain names registered by the registrant, and all blogs and Internet sites maintained by the person or to which the person has uploaded any content or posted any messages or information.4
Neb. Rev. Stat. § 29-4006(2):
(2) When the person provides any information under subdivision (1)(k) or (s) of this section, the registrant shall sign a consent form, provided by the law enforcement agency receiving this information, authorizing the:
(a) Search of all the computers or electronic communication devices possessed by the person; and
(b) Installation of hardware or software to monitor the person’s Internet usage on all the computers or electronic communication devices possessed by the person.
3The parties have stipulated in the Order on Final Pretrial Conference that the italicized language is “overbroad and unduly burdensome.” (Filing 492 at CM/ECF p. 2 ¶ 6.)
4The parties have stipulated in the Order on Final Pretrial Conference that the italicized language is “overbroad and unduly burdensome.” (Filing 492 at CM/ECF p. 2 ¶ 6.)
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Neb. Rev. Stat. § 28-322.05:
(1) Any person required to register under the Sex Offender Registration Act who is required to register because of a conviction for one or more of the following offenses, including any substantially equivalent offense committed in another state, territory, commonwealth, or other jurisdiction of the United States, and who knowingly and intentionally uses a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use its social networking web site, instant messaging, or chat room service, commits the offense of unlawful use of the Internet by a prohibited sex offender:
(a) Kidnapping of a minor pursuant to section 28-313;
(b) Sexual assault of a child in the first degree pursuant to section 28-319.01;
(c) Sexual assault of a child in the second or third degree pursuant to section 28-320.01;
(d) Incest of a minor pursuant to section 28-703;
(e) Pandering of a minor pursuant to section 28-802;
(f) Visual depiction of sexually explicit conduct of a child pursuant to section 28-1463.03 or 28-1463.05;
(g) Possessing any visual depiction of sexually explicit conduct pursuant to section 28-813.01;
(h) Criminal child enticement pursuant to section 28-311;
(i) Child enticement by means of an electronic communication device pursuant to section 28-320.02;
(j) Enticement by electronic communication device pursuant to section 28-833; or
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(k) An attempt or conspiracy to commit an offense listed in subdivisions (1)(a) through (1)(j) of this section.
(2) Unlawful use of the Internet by a prohibited sex offender is a Class I misdemeanor for a first offense. Any second or subsequent conviction under this section is a Class IIIA felony.
Relevant definitions are found in Neb. Rev. Stat. § 29-4001.01:5
(3) Chat room means a web site or server space on the Internet or communication network primarily designated for the virtually instantaneous exchange of text or voice transmissions or computer file attachments amongst two or more computers or electronic communication device users;
. . . .
(10) Instant messaging means a direct, dedicated, and private communication service, accessed with a computer or electronic communication device, that enables a user of the service to send and receive virtually instantaneous text transmissions or computer file attachments to other selected users of the service through the Internet or a computer communications network;
. . . .
(13) Social networking web site means a web page or collection of web sites contained on the Internet (a) that enables users or subscribers to create, display, and maintain a profile or Internet domain containing biographical data, personal information, photos, or other types of media, (b) that can be searched, viewed, or accessed by other users or visitors to the web site, with or without the creator’s permission, consent,
5I previously decided that the definitions in this section apply to the criminal statute being challenged, section 28-322.05, because “the criminal provisions . . . and the definitions . . . were contained in the same legislation.” (Filing 354 at CM/ECF p. 29 n.29.)
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invitation, or authorization, and (c) that may permit some form of communication, such as direct comment on the profile page, instant messaging, or email, between the creator of the profile and users who have viewed or accessed the creator’s profile . . . .
B. Prior Opinion
In my prior memorandum and order addressing the parties’ motions for summary judgment (Filing 354), I determined that the plaintiffs’ facial and as-applied challenges to the above-cited statutes raised four constitutional concerns that necessitated a trial—namely, issues arising under the First Amendment, the Due Process Clause, the Ex Post Facto Clause, and the Fourth Amendment.
With regard to the First Amendment, I decided that trial was necessary as to sections 29-4006(1)(k) and (s) and 28-322.05 to determine whether the requirement that sex-offender registrants disclose information about Internet use violates their right to freedom of speech guaranteed by the First Amendment and the Nebraska equivalent and whether the partial ban on Internet use by certain offenders, upon pain of criminal conviction, violates those speech rights as well. I noted that the parties had not presented an undisputed record of material facts that “explains how these two statutes would actually work in practice and without such a record I cannot determine the implications of this statute on Plaintiffs’ First Amendment rights.” (Filing 354 at CM/ECF p. 35.)
Similarly, I reserved for trial the issue of whether section 28-322.05 is void for vagueness under the Due Process Clause and Nebraska’s equivalent provision because the parties failed to present a sufficient factual record to show how this statute works. Thus, I could not determine whether the statute provides fair notice of what is prohibited and whether a limiting construction could be applied to save the statute. (Filing 354 at CM/ECF pp. 32-33.)
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As to Plaintiffs’ claim under the Ex Post Facto Clause, I decided that a trial was necessary to determine whether sections 29-4006(1)(k) and (s), 29-4006(2), and 28322.05 violate that clause of the United States Constitution and the Nebraska equivalent for offenders (1) who had served their time and were no longer under criminal justice supervision as of the effective date of the laws, January 1, 2010, and (2) who had been sentenced prior to January 1, 2010, but remained under criminal justice supervision on or after that date. (Filing 354 at CM/ECF p. 11.)
Finally, I decided that the consent-to-search and consent-to-monitoring6 provisions of Neb. Rev. Stat. § 29-4006(2) are unconstitutional under the Fourth Amendment and the Nebraska equivalent, Neb. Const. art. I, § 7, as to the plaintiffs who were previously convicted of sex crimes but who were not on probation, parole, or court-monitored supervision on or after January 1, 2010. (Filing 354 at CM/ECF pp. 15-27.) However, I reserved for trial the issue of the constitutionality of Neb. Rev. Stat. § 29-4006(2) under the Fourth Amendment and the Nebraska Constitution as to those who were previously convicted of sex crimes and who were on probation, parole, or court-monitored supervision on or after January 1, 2010, as well as those persons associated with them. (Id.)
II. FINDINGS OF FACT
A. Legislative History
The challenged legislation originated in LB 97 and LB 285, which the Nebraska Legislature passed and the Governor approved in May 2009. Among other things, LB 97 amended Neb. Rev. Stat. § 29-4006 to add the search-and-monitoring provision (now § 29-4006(2)) and to add information that sex-offender registrants must report
6Counsel for the defendants acknowledged that the constitutionality of the consent-to-monitoring provision as to sex offenders who were no longer on probation or parole was “a first[-]impression issue.” (Filing 354 at CM/ECF p. 18.)
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to the Nebraska State Patrol (now § 29-4006(1)(s)). LB 97 also created two new statutes—Neb. Rev. Stat. §§ 28-322.05 (criminalizing unlawful use of the Internet by a prohibited sex offender) and 29-4001.01 (definitional section). See Nebraska Laws, LB 97, §§ 14, 24, 26 (2009). LB 285 amended Neb. Rev. Stat. § 29-4006 to add what is now section 29-4006(1)(k) and amended sections 14 and 24 of LB 97. See Nebraska Laws, LB 285, § 7 (2009).
The Nebraska Attorney General’s Office was the principal drafter and editor-in-chief of LB 97, which that office brought to Nebraska Senator Scott Lautenbaugh for introduction. (Ex. 156, Attorney General’s 2009 Legislative Package; Ex. 301, Judiciary Committee Transcript at pp. 1-2, 4 (Mar. 11, 2009); Ex. 301, Floor Debate at p. 2 (Apr. 22, 2009).) Assistant Attorney General Corey O’Brien was the principal architect of LB 97, and in December 2008, he indicated in an e-mail to Senator Lautenbaugh that although he “would personally like to prevent [persons with prior sex offenses] from using the internet altogether, that would be unconstitutional. However, depriving them from accessing certain parts of the internet is perfectly constitutional.” (Ex. 199.)
The Introducer’s Statement of Intent for LB 97, which included Neb. Rev. Stat. § 28-322.05, states that it was intended to “protect children from sexual predators by strengthening penalties and bringing Nebraska’s laws up to date.” (Ex. 301, Introducer’s Statement of Intent.) During the Judiciary Committee session on March 11, 2009, Senator Lautenbaugh stated:
[LB 97] was brought to me by the Attorney General’s Office, and as I think I said at the outset on this, I am not sure if I’m the ideal senator to be introducing this or not, because I have sort of a . . . this area is very troubling to me, and it provokes kind of a rage and maybe a lack of perspective that I probably shouldn’t have as the sponsor of this bill or probably should have the perspective as sponsor of the bill. . . . [T]his is an area that I have trouble basically dealing with and processing in my own mind. . . . And as I indicated before, I have to confess to a certain
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revulsion, and I don’t think this sets me apart when we discuss people who have these convictions. And these are ongoing restrictions, and it is good to believe in rehabilitation, and the fact that people can change. In this area, I don’t buy that. I don’t think that anyone who thought this was a good idea once actually changes their view on it.
(Ex. 301, Judiciary Committee Transcript at pp. 1-2, 12 (Mar. 11, 2009).)
During the Nebraska Legislature’s discussion of the scope of the search-andmonitoring provisions, Senator Lautenbaugh admitted that “some of the provisions in here do seem harsh and restrictive and that’s really the point. . . . for individuals with these particular proclivities and these particular past convictions, we do want to limit and track what they’re using the Internet for to avoid a repeat offense.” (Ex. 301, Floor Debate Regarding LB 97 at p. 6 (Apr. 22, 2009).) In his concluding remarks, Senator Lautenbaugh stated:
I questioned whether or not I was the ideal person to bring this [bill], because of the just revulsion I feel for people who have these convictions. Revulsion is not too strong a word. I mean these are not criminals that we’re angry at. These are people that are just frightening to me and all of us, and I think rightfully so, and I don’t have a lot of faith in our ability to rehabilitate people who would engage in this type of conduct.
(Ex. 301, Floor Debate Regarding LB 97 at p. 18 (Apr. 22, 2009).)
B. The Doe Plaintiffs & Experts
The parties stipulate that all plaintiffs are required to register under Nebraska’s Sex Offender Registration Act and are subject to the provisions of Neb. Rev. Stat. §§ 29-4001 to 29-4014, with the exception of John and Jane Does B and D-K. The parties further stipulate that these plaintiffs are required to register under Nebraska’s Sex Offender Registration Act because of a conviction for one or more of the offenses
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enumerated in Neb. Rev. Stat. § 28-322.05(1)(a)-(k): John Does 2, 3, 4, 6, 12, 13, 17, 18, 19, 24, 27, 35. Finally, the parties stipulate that the following plaintiffs committed one or more of the offenses in section 28-322.05(1)(a)-(k) by means of a computer or electronic communications device: John Does 2, 3, 12, 17, 24. (Filing 492 at CM/ECF p. 2.)
Ten of the plaintiffs participating in this case testified at trial, as well as the plaintiffs’ expert. Their testimony is summarized below.
1. Professor David Post
For the past 15 years, Professor David G. Post has taught at Temple University’s law school, specializing in copyright, trademark, other intellectual property law, and cyberlaw. (Tr. 66:19-67:4.) Prior to his position at Temple, Post twice worked as a law clerk for now United States Supreme Court Justice Ruth Bader Ginsburg; worked for more than six years at a large Washington, D.C., law firm in intellectual property and “high-tech transactions” involving software developers and systems integrators; and taught at Georgetown for three years. (Tr. 69:19-70:23.) Post has published several law journal articles and a law school casebook concerning the Internet and its legal ramifications. (Tr. 67:8-68:24.)
Post testified that Neb. Rev. Stat. § 28-322.05 and the statutory definitions for “chat room,” “instant messaging,” and “social networking web site” in Neb. Rev. Stat. § 29-4001.01 are ambiguous, and that these definitions either cover “almost everything on the Net” or “might cover virtually nothing on the Internet,” depending upon how the terms are interpreted. (Tr. 74:17-21.)
Specifically, Post testified that a “broad reading” of the definition of “chat room” in section 29-4001.01 could include “ordinary telephone service,” cellular telephone service, e-mail, and SMS text messages, as well as more conventional chat rooms that fall “clearly within the bull’s-eye” of the statutory definition. (Tr.
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84:7-85:25.) For example, “when I send you an e-mail—an ordinary electronic mail with text and maybe a file attachment, I think as a perfectly reasonable reading of the statute that we are now engaged in a chat room interaction because there’s server space on the Internet that is designated for the instantaneous exchange of texts amongst the two of us.” (Tr. 85:7-13.) Further, because Amazon.com, for example, “has server space that is designated for the instantaneous exchange of text between two or more computer users,” it would also qualify as a chat room under the statute. (Tr. 86:8-17, 118:23-119:12.) Post acknowledged that a chat room allows “one-to-one communication and one to many” amongst those who are “in the room.” (Tr. 112:2125.)
Post also testified that the definition of “instant messaging” in Neb. Rev. Stat. § 29-4001.01(10) could include only “old-fashioned telephone” service if the statutory language “direct, dedicated, and private communication service” means “a line of a physical piece of wire that is dedicated to our communication [which is] the way that the telephone system actually works.” Alternatively, this language could include “virtually all electronic communication” if interpreted to mean “communication[] that’s not publicly accessible but is only accessible to the participants.” (Tr. 92:1-22.) Post stated that instant messaging is “any system that allows one-to-one communication via text,” which would include Google, Gmail, Hotmail, Facebook, Yahoo Messenger, Wikipedia, and YouTube because these services allow the “virtual instantaneous transfer of texts and computer file attachments.” (Tr. 93:16-94:17, 120:9-13.) Post thinks use of the word “direct” in the statutory definition of instant messaging is confusing because “anything that’s traveling over the Internet . . . . gets broken up into tiny pieces [and] . . . converge[s] virtually instantaneously on your machine later.” (Tr. 123:4-25.) Post’s “guess is” that the Nebraska Legislature was “trying to capture a sort of private one-to-one nature of conversation as opposed to one to many or many to one.” (Tr. 124:19-25.)
Post testified that the definition of “social networking web site” in section 294001.01(13) has a “threshold statutory ambiguity” caused by use of the term
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“collection of web sites” because that phrase “could cover everything that is on the World Wide Web because the World Wide Web is itself a collection of web sites.” (Tr. 95:1-24.)
Even if you take that definition, read it a little more narrowly, you still have things like Google.com. Google.com—you type in Google.com to your browser and it comes up with a search page, the familiar page. That page doesn’t have profile information on it. I can’t enter my profile on that page but I can enter a . . . searchable profile on any number of pages that are linked to the Google web page so I can go from the Google.com page to Blogger, to Gmail, to YouTube . . . and in one click I’m at a site where I can have a searchable profile that viewers can access. So . . . even though [Google.com] does not have this functionality, is it part of a collection of web sites that has this functionality, and I think the answer is, yeah, it is because . . . I know that they’re in the same collection of web sites. Blogger is owned by Google so I suppose that makes it part of the same collection. It’s one link away from Google so it’s part of a collection. . . . [T]he Google.com site encourages you to go to Blogger, to go to YouTube. . . . [T]o me as a user . . . when I’m at the Google.com page, . . . I’m in a collection of web sites that has this functionality so the Google.com page is a social networking web site. Even though it does not have this functionality, it’s part of the collection that does.
(Tr. 96:8-97:9.)
Aside from the “collection of web sites” issue, Post stated that the “functionality” described in this statute is the ability “to create a . . . searchable profile. If I can create a searchable profile that others can comment on or communicate with me, they can find my profile and send me a message of some kind,” then it is a social networking web site within the meaning of section 294001.01(13). (Tr. 95:13-17.) This definition would encompass “many commercial sites that wouldn’t ordinarily think of themselves as social networking but they have this functionality,” such as Amazon.com, L.L. Bean, Blogspot, and WordPress. (Tr.
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97:16-99:8.) All of these sites have “a way for you to post your profile and talk to other users.” (Tr. 98:22-23.)
Regarding the language in section 28-322.05(1) that prohibits sex offenders from using a social networking web site, instant messaging, or chat room service “that allows a person who is less than eighteen years of age to access or use” it, Post does not know of “any instant messaging services that even purport to keep minors out. Same for chat rooms.” (Tr. 77:19-23, 78:23-79:4.) Further, Post testified that anyone of any age can “access” a site, if only to read the site’s terms and conditions. (Tr. 78:1-16.)
Post testified regarding the reporting requirement in section 29-4006(1)(s) of “all blogs and Internet sites . . . to which the person has uploaded any content or posted any messages or information.” Post testified that “cookies files” are being invisibly uploaded to web sites people visit “hundreds of times . . . daily as you’re . . . making your way around the Net.” These text files—which contain information identifying when you last visited a web site and what you did there—“are being deposited on [an Internet user’s] machine and then sent to the web sites from their machine the next time they go visit and that could be considered the uploading of content” within the meaning of the statute. (Tr. 108:20-109:24.)
In Post’s opinion, the combined effect of the statutes at issue (depending upon how they are interpreted) could bar individuals from: (1) communicating via text message since every commercially available text messaging system could plausibly be classified as “instant messaging” under Neb. Rev. Stat. § 29-4001.01(10) and no text messaging systems prohibit minors’ access; (2) communicating via cellular or landline telephone with any third party; (3) reading any blogs or online newspapers if those sites allow users to identify themselves and communicate with others via a “comments” or “discussion” functionality; (4) joining any discussion groups, listservs, or online communities; and (5) purchasing goods or services online from any site
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allowing user “ratings” and comments. (Ex. 304, Expert Report of David G. Post at pp. 18-19.)
2. Does 17 & F
Doe 17 is employed by his father, Doe F, and he installs and maintains video conferencing systems and runs an online training business. Doe 17 serves as the operations manager, helping to manage public rental of the business’s video equipment, as well as installing video conferencing systems for clients off-site. (Tr. 285:1-287:15.) These systems use the Internet and server space, they operate virtually instantaneously, they transmit voice files, and they use hardware in the form of a CPU or electronic communication device. (Tr. 287:15-291:12.) They are also private. (Tr. 292:1-4.) Therefore, when Doe 17 performs a diagnostic check on a video conferencing system he installs, he believes he is using an instant messaging system and chat room within the meaning of the statutes at issue. (Tr. 291:16-25.)
Because Doe F and Doe 17 sometimes work from separate locations—the business’s office and Doe F’s home office—they often use Google Talk instant messenger to communicate with one another, although they also frequently talk by phone. (Tr. 293:8-14, 315:1-14.) They also communicate via text messaging and an IP-based phone system for convenience and cost reasons. (Tr. 293:20-294:3, 316:5-10.) Doe 17 regularly uses e-mail in both businesses. (Tr. 299:21-25.) Doe 17 maintains his Cisco certification through that company’s web site, which requires him to create an account, give personal identifying information, review lessons, and take tests. The Cisco web site also allows one to communicate with a Cisco customer service representative or technician via e-mail and live chat and with others through help forums and blogs. (Tr. 294:4-295:11.)
Doe 17 uses chat rooms and instant messaging systems for his personal online training business, but he avoids using an industry-related online forum on the topic of video conferencing called VC Talk because users must create a profile, users have
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the ability to communicate with other users, the site has “an age limit of 13,” and he is “trying to . . . in good faith comply with the current law.” (Tr. 295:18-299:16.) He has built web sites for clients that he believes may qualify as “social networking web sites” or “instant messaging” within the meaning of the statutes at issue. (Tr. 300:221.)
Doe 17 testified that if Neb. Rev. Stat. § 28-322.05 were applied to him, his business would shut down and he would be relegated to fewer job duties than when he was on parole because he would be prevented from answering the Internet-based phone and he could not provide training because “the method of doing training is remote training all over the web. It all involves audio and text chat.” (Tr. 303:2-305:1.)
He frequently interfaces with law enforcement because he is required to update his Internet identifying information regularly because he has many web sites that he maintains for clients that require him to “upload[] data” and he “constantly” needs access to technical forums to “do new research on new issues.” (Tr. 308:18-309:13.) Doe F testified that Doe 17 was integral to his small business. (Tr. 326:2-327:22.) According to Doe F, if section 28-322.05 were applied to Doe 17, Doe F would have to terminate his son’s employment, and Doe F could not pass the business on to his son. (Tr. 330:6-9, 332:3-16.)
3. Doe 35
While Doe 35 does not use computers, cell phones, instant messaging, or chat rooms in the course of his work, he regularly texts his wife during the day, and occasionally his mother. (Ex. 211 at 10:20-12:4, 14:6-16.) He maintains a Facebook account to keep up with old friends. (Ex. 211 at 12:13-15, 15:16-16:8.)
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4. Doe 31
In his current occupation, Doe 31 provides remote desktop and server support for one client, which involves basic hardware and software troubleshooting. (Tr. 341:20-342:6.) To do his job, Doe 31 must access his client’s computers remotely, which allows him to share computer files back and forth and access the Internet on others’ computers. (Tr. 343:4-24.) Although his job frequently requires him to access vendor web sites by creating a profile with a user name and password, Doe 31 has never used the chat capabilities that are available on those web sites. (Tr. 344:16346:21, 350:19-23.) Doe 31 does not post any information on web sites for either work-related or personal reasons, but he e-mails and texts family and uses a cell phone for personal and business reasons. (Tr. 351:1-352:13.)
5. Doe 21
Doe 21 is the president of a music retail company and wholesaler. (Tr. 353:22.) Doe 21 uses e-mail, Google Chat, and text messaging to communicate with customers internationally. (Tr. 354:21-355:25.) He admitted that providing his e-mail addresses and online identifiers under Neb. Rev. Stat. § 29-4006(1)(k) and (s) has not affected his ability to conduct business. (Tr. 356:14.)
6. Doe 3
Doe 3 is self-employed, running a business that sells and installs high-end car audio and video equipment and other vehicle accessories. (Tr. 360:5-15.) He has operated the business for almost two years. (Tr. 368:20-21.) He purchases inventory from online vendors through e-mail, telephone, and vendor web sites, and some of these vendor web sites require creation of a profile. (Tr. 360:21-361:6.) He also visits manufacturer web sites that allow him to communicate with the manufacturer via email from the web site. (Tr. 365:7-20.)
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Doe 3 conducts much of his business through car audio forums, including contacting new global clients. (Tr. 361:20-362:9.) For example, he uses DIYMA.com (Do It Yourself Mobile Audio), which permits a person to create a profile, search and view another’s profile, and allows some form of communication; it also allows direct messaging functions between users. (Tr. 362:15-363:3.) Doe 3 uses these forums to solicit business, find information, and ask and answer technical questions. (Tr. 363:16-24.) These forums do not require users to prove their age in order to log in or use them. (Tr. 372:22-373:4.) Doe 3 uses these forums at least once per day as his primary source of technical data, and he uses other forums “all the time . . . throughout the day.” (Tr. 364:8-22.) If he were banned from these forums, he would not be able to access the full range of technical information needed or consult with car audio experts. (Tr. 373:5-17.)
Doe 3 is able to take credit card payment over the phone by having an account with the Internet-based company called Square.com, which requires him to have a profile, user name, and password, but does not allow him to communicate with other users. He also uses Craigslist to advertise and sell items for his business, as well as Facebook, a cell phone, text messaging, and e-mail. (Tr. 366:20-368:7, 374:8-11.)
For the type of high-end business he runs, his client base is not the local market. (Tr. 363:4-13, 373:19-374:7.) As Doe 3 put it, the impact of Neb. Rev. Stat. § 28-322.05 would be fatal if it meant he were banned from the forums: “[I]t would basically not allow me to . . . continue the business because there isn’t [sic] enough . . . customers located in our area to support this business.” (Tr. 365:24-366:4.)
Doe 3 uses e-mail, text messaging, and web site access to communicate with his wife and children, as well as for things like his kids’ basketball league, for which “all the information comes via e-mail. Looking up the schedule of games is on a web site. None of this information is hard copy anymore. Everything’s electronic.” (Tr. 369:6-370:7.)
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7. Doe 19
Doe 19 registers in Lancaster County as a transient because his sound and light company and his coach company require him to leave Nebraska regularly to go on tours with entertainers. (Tr. 379:10-380:4.) He has operated his businesses since 2006 and 2008, respectively. (Tr. 389:5-9.) He uses text messaging and e-mail to keep in touch with tour managers, his partners, and his assistant; to send out bids to potential clients; and for personal communication. (Tr. 382:7-383:13.) Doe 19 has not used social networking because it is “nerve-wracking with all this going on.” (Tr. 384:20-21.) He is also concerned that the mere use of these mediums is criminal. (Tr. 385:6-386:2.) He testified that he has not used social networking sites like MySpace and Facebook, but he needs to do so because he is “losing out because anybody that’s got a band or a management company has a Facebook or a MySpace. . . . All bands, all artists use that.” (Tr. 384:2-385:5.) Doe 19’s potential clients use social networking “to advertise themselves and to also find people to fill their roles whether it be for sound and lighting or coaches or whatever.” (Tr. 384:5-8.)
Doe 19 has abstained from setting up a Twitter account. (Tr. 389:13-15.) He testified that if Neb. Rev. Stat. § 28-322.05 prohibited e-mail or texting, it “would sink” his business because “[n]obody would know about me. There is no way to communicate. . . . [S]nail mail isn’t done anymore in that kind of business so I would literally starve to death trying to find clients.” (Tr. 386:24-387:9.)
8. Doe 18
Doe 18 has significant experience with both computer hardware and computer software. (Tr. 390:20-392:9.) He currently operates a computer consulting business, including removing computer viruses, upgrading hardware and software, and providing on-call support. (Tr. 392:10-20.) He communicates with clients via cell phone calls, texts, and e-mail. If a customer sends an e-mail to his cell phone, it appears as a text message on his phone, but his reply will appear as an e-mail to the
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client—“[i]t’s technical convergence. It’s . . . getting harder and harder to separate the things.” (Tr. 393:4-17.)
Doe 18 gains remote access to problem computers using the program LogMeIn, which has the capability to allow him to chat via text with the person on the other computer and to transfer computer files. (Tr. 394:2-395:1.) He uses manufacturer web sites to obtain technical assistance, such as the web sites for Lexmark, Dell, and IBM. (Tr. 396:25-397:5.) All of the manufacturer web sites permit some form of chat function, and he has used the chat function on the Lexmark web site to obtain technical data from a person of unknown age, gender, or location. (Tr. 397:6-398:4.)
Similar to Doe 3, Doe 18 uses online forums, such as Bleeping Computer, to get assistance with technical problems. He is concerned that such sites might be considered social networking web sites within the meaning of the Nebraska statutory scheme. For example, Bleeping Computer allows one to sign up and register an account, to maintain a profile page, to view or gain access to another’s profile page, and to communicate with others in a forum. (Tr. 396:1-17, 398:5-399:2.) Doe 18 has refrained from getting LinkedIn , Facebook, and Twitter accounts because he does not know “how the law stands on that.” He is also concerned about using links and forums on various technical web sites because “it’s not always clear where you’re going”; he “may not be . . . in the public area of that company web site . . . if they haven’t secured their internal company information”; and he may “stumble into what might be considered a social networking web site” under Nebraska law. (Tr. 395:215, 400:11-22, 401:13-21, 402:19-403:9.)
Doe 18’s “limited presence on the Internet” has limited his work and is “odd” for a computer consulting business. “If you don’t have a presence on the Internet, you don’t have a company basically speaking.” (Tr. 395:2-18, 403:10-20.) If Neb. Rev. Stat. § 28- 322.05 prohibited Doe 18 from using forums and manufacturer web sites, it would be difficult, if not impossible, to resolve the virus and other in-depth problems he encounters in his computer consulting business. (Tr. 401:19-402:5.)
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Further, if he were unable to use a cell phone or text message, it would “significantly impact” his relationships with his family, friends, and church. (Tr. 403:21-405:1.) Doe 18 earns 80 percent of his income performing construction remodeling because he cannot generate enough income through his computer consulting business due to his “very small digital presence. . . . the work doesn’t just spontaneously occur.” (Tr. 408:4-13, 409:13-410:8.)
9. Doe 2
Doe 2 develops Internet-based applications for his employer. (Tr. 412:16-21.) His employer has “intranet,” which is a company-specific social networking site used only by employees. (Tr. 413:22-415:13.) This site is “only one step removed from what Facebook does” and allows users to generate a profile, get and use a user name and password, access others’ profiles, and electronically communicate with other employees. Doe 2’s employer hires interns who are under 18 years old. (Tr. 414:523, 441:12-15.) He collaborates with other employees in New York and Wisconsin using this medium (Tr. 415:4-10), as well as through an Internet-based phone service (Voice-over IP), WebEx (which contains “an instant message type of a chat”), GoToMeeting, and instant messaging. (Tr. 416:6-418:23.) Doe 2 uses “a few hundred” online forums to post technical questions and answers. (Tr. 420:11-423:9.) These sites require you to create a profile and some of them allow users to talk to each other “through personal messages.” (Tr. 422:23-423:6.)
In addition to his employment, Doe 2 also runs a computer programming and consulting business, including web site design. (Tr. 423:15-425:10.) For some of the web sites he has developed, he is the “guy on the other end” of the “chat window” who assists others. (Tr. 424:17-425:1.) He frequently uses e-mail and text messaging for his consulting work, and 10 to 15 percent of his work is done through instant messaging. (Tr. 425:11-426:8, 442:19-25.) Doe 2 uses LogMeIn, Remote Desktop Protocol, pcAnywhere, GoToMyPC, and a virtual private networking product by Cisco to gain remote access to clients’ computers. (Tr. 419:2-420:6, 426:16-427:5.)
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If Neb. Rev. Stat. § 28-322.05 prohibited Doe 2 from using social networking, such as his company internal web site, instant messaging, or chat room systems, he does not believe his consulting business could survive, and he is not sure how he could function as an employee since his co-workers are in other parts of the country. (Tr. 427:9-428:3, 431:21-433:22.) By not using Facebook and Twitter, Doe 2 is “really struggling because [he] just can’t pull people in.” (Tr. 430:10-24.)
Doe 2 also uses eBay and Amazon to purchase household items and books for his college-aged children, as well as Internet news sites and sites related to sexoffender laws. (Tr. 433:5-22, 439:4-6.) There are several devices in Doe 2’s home that connect to the Internet, including several computers, a Blu-ray player, Xbox products (which allow users to connect with other users), and iPods. (Tr. 437:9438:25.)
10. Doe 24
Doe 24 is on the Nebraska sex-offender registry due to a 2005 conviction for online enticement of a minor and a sentence imposed in 2006 for one year and a day. He was not put on probation or parole for that offense. (Tr. 471:3-25.) Doe 24 was sentenced to 3 to 6 years for a drug offense in October 2010 and was paroled on March 27, 2012. Doe 24’s conditions of parole require him to “obey all . . . laws, ordinances and orders” and “permit [his] parole officer and/or personnel of Parole Administration to conduct routine searches of [his] person, residence, vehicle or any property under [his] control, at such times as they deem necessary.” (Tr. 450:15-24 & Ex. 210.) Doe 24 is not subject to a special condition of parole that would have required him to “consent to unannounced examination (search) of any and all computer(s) and/or devices to which you have access to.” (Ex. 210 at p. 6.)
Doe 24 has a bachelor of science degree in business administration with a focus on management information systems, databases, and entrepreneurship, and he was previously employed as a consultant where he “would either go on site or remotely
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access [clients’] computers or their servers and resolve any . . . IT need.” To gain this remote access, Doe 24 used the Internet and often communicated with “chat features.” (Tr. 454:15-25, 455:12-456:25.) He “had full access to router switches, firewalls, servers, desktops, laptops, anything that was connected to the Internet or their network.” (Tr. 457:19-23.)
11. Doe 12
Doe 12 operates a specialized software development and computer consulting company for clients around the world. (Tr. 489:10-13.) Because he has clients in Europe, Asia, and South America, he communicates via chat rooms and instant messaging because it would be cost-prohibitive otherwise. (Tr. 490:23-491:9.) He uses Skype on a daily basis, which permits communication via typed text, voice-over IP, and video-over IP, as well as AOL Instant Messenger, Yahoo, and Google Talk. (Tr. 490:23-491:9.) Doe 12 has authored technical books in his field, and as a result has an author page on Amazon. (Tr. 496:15-498:6.) Amazon allows a person to view his author web site, allows him to view a profile page of another Amazon user, and permits some form of communication between these two profiles. (Tr. 498:7-18.) As with a number of the other Does, he participates in online forums, both as a consumer and as a “guru” providing expert technical data in response to questions. (Tr. 500:2-501:4.)
Doe 12 testified about how difficult it is, from a user’s perspective, to know what system or protocol (SMS or Internet) is being used to communicate. For example, when Doe 12 telephones his brother in California, it rings on his brother’s computer via Skype, leading to the question “where does the phone system end and the Internet and Skype begin?” Similarly, a group SMS text sent through Doe 12’s Verizon account will automatically convert into an Internet-based MMS (multimedia) message “because Verizon just decided to . . . do that.” (Tr. 535:25-537:17.) Doe 12’s daughter’s cell phone allowed her to “text using SMS to a particular number and then by proxy it would post it off to Twitter but the primary mechanism for all of the
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different clients, whether it be on the web or on my phone . . . is over the Internet Protocol.” (Tr. 535:14-23.) In Doe 12’s view, Twitter falls within the definition of “social networking web site” in Neb. Rev. Stat. § 29-4001.01(13).
When Doe 12’s step-daughter and wife were in Wisconsin for two months because of a medical problem, he and his family members used videoconferencing and “most of these technologies” to keep in touch. (Tr. 521:1-16.) He also stated that if Neb. Rev. Stat. § 28-322.05 were to go in to effect, he “would cease to exist” as far as his personal, family, and business lives are concerned. (Tr. 534:21-25.)
C. Defendants’ Witnesses
1. Hemanshu Nigam
The defendants’ expert witness, Hemanshu Nigam, is the founder and CEO of SSP Blue, an online safety advisory firm that provides strategic business consulting services to corporations and governments on Internet safety, security, and privacy issues. (Ex. 305.) Nigam’s experience in the world of Internet security and safety spans more than 20 years, through service as the Chief Security Officer for News Corporation and as an officer involved in Internet security issues at Microsoft, as well as through prosecutorial experience involving online child pornography and child predator and child trafficking cases for the United States Department of Justice and the Los Angeles County District Attorney’s Office. (See Ex. 305, Curriculum Vitae at pp. 11-15.)
Nigam recognized that “[w]hen the Internet was being created, one of the things that people were trying to do was try to create what’s happening in the real world.” (Tr. 188:12-14.) For example, an online “chat room,” as defined in Neb. Rev. Stat. § 29-4001.01(3), is the equivalent of a “party,” or any room with multiple people present, where every person in the room can talk to one another or engage in a more private one-on-one conversation off to the side. (Tr. 193:20-194:3, 253:23-254:3.)
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Nigam testified that “instant messaging” is the equivalent of a private conversation between two people, with no one else listening. (Tr. 193:5-11, 254:14-18.) Finally, Nigam stated that “social networking web sites” reflect common real-world situations like book clubs or other social settings, where individuals gather with other individuals who are also members of the club or group and share things with each other. (Tr. 253:2-19.)
Nigam disagreed that the statutory terms in Neb. Rev. Stat. § 29-4001.01 could include a vast amount of the Internet. He testified that a “chat room” would not include cellular telephone service because the two operate on different “platforms” (Tr. 199:18-24), nor would it include blog postings. (Tr. 200:8-201:23.) E-mail also would fall outside the definition of chat room because each medium uses a “different language.” (Tr. 202:3-7.) Nigam stated that SMS texting would not be included in the definition of “instant messaging” for several reasons—first, SMS texting and instant messaging operate using different protocols (Tr. 189:6-18), and second, the mechanics of delivery of a SMS text message and an instant message differ. A text message “goes to a company that then delivers it to you,” while an instant message is sent directly to a recipient, bypassing the service-provider in the middle. (Tr. 191:16-192:12.) Therefore, Neb. Rev. Stat. § 28-322.05 would not prohibit texting. (Tr. 255:15-23.)
Nigam does not believe a “collection of web sites,” as used in the definition of “social networking web site” in Neb. Rev. Stat. § 29-4001.01, means properties a company such as Google owns; rather, it means “one property and all the different pages that are associated to the site because those are the web pages that are part of that web site.” (Tr. 206:17-207:5.) Nigam believes that one does not “use[]” a social networking web site, instant messaging, or chat room service within the meaning of Neb. Rev. Stat. § 28-322.05(1) unless they are engaging in what “all of them require which is communication.” (Tr. 219:1-6.)
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Regarding the language in section 28-322.05(1) that bars knowing and intentional use of a social networking web site, instant messaging, or chat room service that allows a “person who is less than eighteen years of age to access or use” it, Nigam stated that as a practical matter, one would need to look daily at the terms of use of those sites and services in order to comply with this statute, but from “a good faith perspective, [he] would be comfortable if somebody checked it the first time they actually registered and start[ed] using it.” (Tr. 258:1-260:4.)
2. Scott Haugaard
Scott Haugaard is a 14-year investigator with the Nebraska State Patrol who has worked the last four years with the FBI’s Cyber Crimes Task Force. (Tr. 554:12-20.) Haugaard has experience investigating online enticement, child pornography and exploitation, and other crimes against children involving the Internet. (Tr. 555:7-23.)
When assigned to online child enticement investigations, Haugaard would present himself on the Internet as a child and wait for individuals to introduce themselves. (Tr. 569:15-23.) The introduction would frequently occur via instant message through a service like Yahoo Instant Messenger. Haugaard also participated in chat rooms. (Tr. 570:3, 571:8, 572:15.) From there, the individuals would begin “grooming” their victims through communication intended to “kindle a friendship” and “build up self-esteem” in their victim. (Tr. 572:19-574:3.) Then, the individual would begin discussing sex and eventually propose a meeting “for the purposes of real physical sex.” (Tr. 573:6-8.)
Haugaard testified that having a registered sex offender’s e-mail addresses and Internet identifiers, as required by Neb. Rev. Stat. § 29-4006(1)(k) and (s), would allow law enforcement to remotely monitor those addresses and identifiers and link them to a specific person in the event “an investigation started.” (Tr. 576:13-21.) Law enforcement officers currently use several programs and software packages that allow officers to “plug in, say, an e-mail address or a[n] instant messenger moniker
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. . . and identify an individual.” (Tr. 577:20-24.) Without this information, law enforcement officers previously could only accomplish this by searching an individual’s computer. (Tr. 577:25-578:1.) Haugaard testified that even when law enforcement personnel know a sex offender’s e-mail addresses or other online identifiers, any monitoring by law enforcement would not include the content of a registrant’s messages or Internet activity, and such identifiers are not made public. (Tr. 576:15, 577:6-8, 578:2-4.)
III. CONCLUSIONS OF LAW
A. Facial and As-Applied Challenges
“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987); see also Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449–50, 128 S. Ct. 1184, 170 L. Ed. 2d 151 (2008) (reaffirming the Salerno test outside the context of certain First Amendment challenges). This is because facial challenges “run contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Wash. State Grange, 552 U.S. at 450, 128 S. Ct. 1184 (internal quotation marks omitted).
TCF Nat’l Bank v. Bernanke, 643 F.3d 1158, 1163 (8th Cir. 2011). See also United States v. Stephens, 594 F.3d 1033, 1037 (8th Cir. 2010) (discussing facial and asapplied challenges). In the First Amendment context, and as further explained below, facial challenges may be applied when there “is a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” Roach v. Stouffer, 560 F.3d 860, 870 n.5 (8th Cir. 2009) (internal quotation marks & citations omitted).
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B. First Amendment Challenges to Sections 28-322.05 & 29-4006(1)(k) and (s)
Plaintiffs attack section 28-322.05 because that statute’s partial ban on Internet use by certain offenders, upon pain of criminal conviction, violates the plaintiffs’ right to free speech under the United States and Nebraska Constitutions. Plaintiffs also challenge sections 29-4006(1)(k) and (s) because the requirement that registrants must disclose information about Internet use violates their right to freedom of speech guaranteed by the First Amendment and the Nebraska equivalent. “The parameters of the constitutional right to freedom of speech are the same under both the federal and the state Constitutions.” State v. Hookstra, 638 N.W.2d 829, 833 (Neb. 2002).
The Supreme Court has made clear that First Amendment protections for speech fully extend to Internet communications, as well as to anonymous speech. See Reno v. ACLU, 521 U.S. 844, 870 (1997) (explaining that the Internet allows “any person with a phone line [to] become a town crier with a voice that resonates farther than it could from any soapbox” and that “our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium”); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (stating that “an author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment”).
States may regulate content-neutral speech7 (a) if the regulation is narrowly tailored to serve a significant governmental interest and (b) if the regulation leaves open ample alternative channels for communication of information. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). It is immaterial that the government’s interest might be adequately served by some less-restrictive alternative. Id. at 798.
7I previously assumed that Neb. Rev. Stat. §§ 29-4006(1)(k) and (s) and 28-322.05 should be deemed content-neutral for purposes of First Amendment analysis. (Filing 354 at CM/ECF p. 36 n.35.) The parties have not persuaded me otherwise, as the statutes at issue apply “regardless of content or viewpoint.” PhelpsRoper v. Troutman, 662 F.3d 485, 489 (8th Cir. 2011).
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See also Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 662 (1994) (“To satisfy this standard, a regulation need not be the least speech-restrictive means of advancing the Government’s interests.”).
“A statute is narrowly tailored if it targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy. A complete ban can be narrowly tailored, but only if each activity within the proscription’s scope is an appropriately targeted evil.” Frisby v. Schultz, 487 U.S. 474, 485 (1988) (citation omitted). This standard “does not mean that a . . . regulation may burden substantially more speech than is necessary to further the government’s legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” Ward, 491 U.S. at 799. “[H]owever, the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.” Ward, 491 U.S. at 800.
That the Government’s asserted interests are important in the abstract does not mean, however, that the [regulation on speech] will in fact advance those interests. When the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply posit the existence of the disease sought to be cured. It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.
Turner, 512 U.S. at 664 (internal quotation marks & citation omitted).
If the challenged statute fails to meet either prong of the test—narrow tailoring or failure to leave open ample alternative channels—the statute fails. See, e.g., Olmer v. City of Lincoln, 23 F. Supp. 2d 1091, 1103 (D. Neb. 1998) (“The ordinance [intended to protect children from graphic visual depictions of aborted fetuses] is not narrowly tailored to serve a constitutionally important government interest.
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Therefore, it is unnecessary to determine whether the ordinance leaves open ample alternative channels of communication.”), aff’d, 192 F.3d 1176 (8th Cir. 1999) (finding that because ordinance was not narrowly tailored, ordinance was facially unconstitutional; not considering alternative channels of communication).
At the outset, it should also be noted that the plaintiffs assert, as part of their First Amendment challenge, that the statues are overbroad. In the First Amendment context, overbreadth is a remedial question and not a separate reason for finding that a statute violates the First Amendment.8 See, e.g., Scott A. Keller & Misha Tseytlin, Applying Constitutional Decision Rules Versus Invalidating Statutes in Toto, 98 Va. L. Rev. 301, 348 (2012) (“The overbreadth invalidation rule only applies to the remedial question of whether to invalidate a statute in toto—not to the initial inquiry into whether a constitutional violation exists under the relevant decision rule.”) (emphasis added).
With these principles in mind, I next turn to an analysis of the challenges to sections 28-322.05 and 29-4006(1)(k) and (s). For the sake of clarity, I analyze each of these two sections separately regarding the plaintiffs’ First Amendment challenges.
1. Section 28-322.05
Certain sex offenders who committed crimes against minors are banned from using social networking web sites, instant messaging, and chat room services under section 28-322.05 upon pain of a jail or prison sentence. The age of the triggering conviction does not matter. The fact that the offender has a clear record since the conviction does not matter. The fact that the offender is not under court supervision does not matter. The fact that the offender legitimately needs access to the banned
8However, the closely related but separate question of whether an expansively worded statute chills the plaintiffs’ speech because it lacks clarity is a substantive reason for finding that a statute violates the First Amendment.
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sites to make his or her living does not matter. The fact that the offender legitimately needs access to the banned sites to obtain news that probably cannot be obtained in another way does not matter. The fact that the offender legitimately needs access to the banned sites to check on the health and well-being of his children while they are in a distant hospital does not matter. The fact that the offender did not use any of the banned sites to commit his or her crime does not matter.
In relevant part, the statute reads as follows:
Any person required to register under the Sex Offender Registration Act who is required to register because of a conviction for one or more of the following offenses, including any substantially equivalent offense committed in another state, territory, commonwealth, or other jurisdiction of the United States, and who knowingly and intentionally uses a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use its social networking web site, instant messaging, or chat room service, commits the offense of unlawful use of the Internet by a prohibited sex offender: [listing offenses].
Neb. Rev. Stat. § 28-322.05(1).
The plaintiffs admit that the State has a significant, even compelling, government interest in protecting minors online from sex offenses. Indeed, there is no doubt that minors access certain sites quite heavily. See, e.g., J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 951 (3rd Cir. 2011) (en banc) (Judge Fisher, with Scirica, Rendell, Barry, Jordan, and Vanaskie dissenting) (“Twenty-three percent of teenagers between the ages of 12 and 17 who own cell phones use them to access social networking sites like MySpace and Facebook.”) (citation omitted). Nonetheless, the plaintiffs forcibly argue that section 28-322.05 suppresses too much speech—that is, the statutes limit use of the “most popularly used mediums used in everyday life for all types of communication.” (Filing 496, Pls.’ Trial Br. at CM/ECF p. 13.)
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After very careful deliberation, I decide that Neb. Rev. Stat. § 28-322.05 is not narrowly tailored. I also decide that the statute does not leave open ample alternative channels for communication of information. Recognizing that either decision is enough to invalidate the statute, I next explain my reasoning.
a. Narrow Tailoring
Whatever else the words of Neb. Rev. Stat. § 28-322.05 might mean, it is undisputed that those words ban the offenders described in the statute from using ubiquitous utilities such as MySpace, Facebook, Skype, Twitter, Windows Live Messenger, and Google+9 together with a large number of other utilities. In order to understand the significance of the ban, it is important to understand the size and overarching presence of “social networking web sites” and “instant messaging” and “chat room” services on the Internet. Consider the following:
* “By the end of 2008 and the start of 2009, social networking became even more popular than e-mail.” Geelan Fahimy, Liable for Your Lies: Misrepresentation Law as a Mechanism for Regulating Behavior on Social Networking Sites, 39 Pepp. L. Rev. 367, 384 (2012).
* Social networking sites are now used by all demographic groups—one study in 2010 showed that “forty-seven percent of Internet users aged
9I use these six utilities merely as examples because they are widely known and because it is essentially undisputed that each one would be categorized as a “social networking web site” or “instant messaging” service or “chat room” service within the meaning of the statute. Indeed, all of them appear to have the attributes of all three of these categories. For a more expansive list of sites that may potentially be banned by the statute, see Filing 354, Attachment A (Mem. & Order on Summ. J. Motions). To avoid increasing the length of this opinion, I incorporate that information (Filing 354, Attachment A) herein.
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fifty to sixty-four years old and twenty-six percent of those over sixtyfive use social networking sites.” Id. at 385.
* MySpace has over 100 million users, and 50% of those are outside the United States. Id. at 386.
* In May of 2012, Facebook had 901 million monthly active users, 3.2 billion “likes and comments” per day, 300 million photos uploaded per day, and 125 billion “friendships.” Facebook, Inc., Amendment 6 to Form S-1, filed with Securities Exchange Commission (May 9, 2012) (p. 5 of 227) (graphic on table-of-contents page).10
* Skype, which is now owned by Microsoft, had 170 million users and over 207 billion minutes of voice and video conversations in 2010. Microsoft News Center, Microsoft to Acquire Skype (May 10, 2011).11 In late 2012 or 2013, Skype will become part of Microsoft “Office.” Microsoft News Center, Microsoft unveils the new Office (July 16, 2012).12 Microsoft “Office,” a suite of applications including Word, Excel, and PowerPoint, has over a billion users worldwide. Ionut Arqhire, Microsoft’s Office Has over One Billion Users, Softpedia (July 10, 2012).13
10http://www.sec.gov/Archives/edgar/data/1326801/000119312512222368/d 287954ds1a.htm.
11http://www.microsoft.com/en-us/news/press/2011/may11/05-10corpnewsp r.aspx.
12http://www.microsoft.com/en-us/news/Press/2012/Jul12/07-16OfficePR.aspx. 13http://news.softpedia.com/news/Microsoft-s-Office-Has-Over-One-BillionUsers-280426.shtml.
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* As of February 2012, 15% of online adults use Twitter, and 8% do so on a typical day. Pew Research Center, Twitter Use 2012 (May 31, 2012).14
* As of February 2010, Windows Live Messenger was used by 300 million people in 76 countries, and that use produced 1.5 billion conversations and 9 billion messages per day. Jeff Kunins, Windows Live Messenger (Feb. 9, 2010).15
* In just over a year since its release, 400 million people have installed Google+ and 100 million of those use the utility monthly. Vic Gundotra, #googleplusupdate (Sept. 17, 2012).16
* Thirty-six percent of American social networking web site users believe that the sites are “very important” or “somewhat important” to them in keeping up with political news. Pew Research Center, Politics on Social Networking Sites (Sept. 4, 2012).17 For example, the 2012 “Republican convention alone drew 5 million tweets.” Beth Fouhy, For conventions, TV viewing down, social media up, Associated Press (Sept. 4, 2012).18
* Of the 500 fastest growing companies in America, 74% of those companies use Facebook. Nora Ganim Barnes, Ph.D. & Ava M. Lescault, MBA, The 2012 Inc. 500 Social Media Update: Blogging
14http://pewinternet.org/Reports/2012/Twitter-Use-2012.aspx. 15http://windowsteamblog.com/windows_live/b/windowslive/archive/2010/0 2/09/windows-live-messenger-a-short-history.aspx. 16https://plus.google.com/u/0/+VicGundotra/posts/2YWhK1K3FA5. 17http://pewinternet.org/Reports/2012/Politics-on-SNS.aspx. 18http://www.boston.com/news/politics/2012/2012/09/04/for-conventions-vi ewing-down-social-media/85HHjj9XAbn2JTumPQBVaJ/story.html.
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Declines as Newer Tools Rule, UMass Dartmouth.19 Of Fortune 500 companies, 62% have active Twitter accounts and 58% have a Facebook page. Shelly Kramer, How Fortune 500 Companies Use Social Media, V3 Integrated Marketing (May 28, 2012).20
So far as the scope of the statute is concerned, this ban precludes the offenders described in the statute from using an enormous portion of the Internet to engage in expressive activity. No reasonable person could deny that fact. The ban not only restricts the exchange of text between adults; it also restricts the exchange of oral and video communication between adults. Moreover, the ban potentially restricts the targeted offenders from communicating with hundreds of millions and perhaps billions of adults and their companies despite the fact that the communication has nothing whatsoever to do with minors.
(i) Ban Not Dependent Upon Past Use of Social Utilities
Critically, the ban is not contingent upon the past use of the banned utilities to prey upon minors. To be specific, the ban does not require a showing that the offender used social networking web sites, instant messaging, or chat room services to prey upon children.21 Nor does it require a showing that the offender poses a
19http://www.umassd.edu/cmr/socialmedia/2012inc500socialmediaupdate/. 20http://www.v3im.com/2012/05/how-fortune-500-companies-use-social-me dia/#axzz28AfWBcwg. 21Does 4, 6, 13, 18, 19, 27, and 35 committed crimes that make them subject to the statute, but it is stipulated that they did not use a computer or electronic communication device to do so. (Filing 492, Pretrial Conf. Order at CM/ECF p. 2.) Thus, it is apparent that they did not use a social networking web site, instant messaging, or chat room service to commit their crimes. Does 2, 3, 12, 17, and 24 are subject to the statute, and they used a computer or electronic communication device to commit their crimes. (Id.) It is not clear, however, whether these Does used a social networking web site, instant messaging, or chat room service to commit their
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present threat to use those utilities to get at children. On the contrary, the ban is triggered by the commission of a crime against children (often committed in the fardistant past) that may be entirely unrelated to whether the offender used (or threatens to use) a social networking web site, instant messaging, or chat room service to victimize minors.
In other words, the statute is not narrowly tailored to target those offenders who pose a factually based risk to children through the use or threatened use of the banned sites or services. The risk posited by the statute is far too speculative when judged against the First Amendment. The broad scope of the ban is a fatal deficiency. See, e.g., Doe v. Jindal, 853 F. Supp. 2d 596, 607 (M.D. La. 2012) (holding Louisiana’s statute precluding registered sex offenders from using or accessing social networking sites, chat rooms, and peer-to-peer networks unconstitutional; “The sweeping restrictions on the use of the internet for purposes completely unrelated to the activities sought to be banned by the Act impose severe and unwarranted restraints on constitutionally protected speech. More focused restrictions that are narrowly tailored to address the specific conduct sought to be proscribed should be pursued.”); Note, Jasmine S. Wynton, My Space, Your Space, But Not Their Space: The Constitutionality of Banning Sex Offenders from Social Networking Sites, 60 Duke L.J. 1859, 1888-1889 (2011) (“There are less restrictive ways of serving states’ compelling interest than such blanket prohibitions. . . . [S]tates can narrow the application of social-networking-site bans to only those sex offenders who used the Internet or social networking sites in the commission of their underlying offenses. Indeed, some states have taken this more narrowly tailored approach.”).
I am aware of Doe v. Prosecutor, Marion Cnty., No. 1:12-cv-00062, 2012 WL 2376141 (S.D. Ind. 2012) (holding that Indiana’s ban on accessing social networking sites, instant messaging services, and chat room services by certain sex offenders did not violate First Amendment). With respect, and for numerous reasons, I am not
crimes.
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persuaded by that decision. I will highlight only one point to illustrate my view that the Indiana judge’s reasoning throughout the opinion is weak.
Central to the judge’s ruling was a curious statement. The judge wrote that “Mr. Doe’s argument is important for what it does not say. Tellingly, Mr. Doe never furnishes the Court with workable measures that achieve the same goal . . . .” Id. at *7 (emphasis in original). Setting to one side the dubious proposition that a plaintiff making a First Amendment challenge is obligated to inform the state how to write a statute in conformity with the Constitution, there is a very easy answer to the judge’s rhetorical flourish. That is, the constitutional response to the judge’s concern is to narrow the statute to those who have preyed upon children using the banned sites. Plainly put: Concentrate on demonstrated risk rather than speculating and burdening more speech than is necessary—use a scalpel rather than a blunderbuss. For reasons that are unclear, the judge wholly ignores this seemingly obvious point.
In summary, the statute “burden[s] substantially more speech than is necessary to further the government’s legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” Ward, 491 U.S. at 799. The statute therefore violates the First Amendment.
(ii) Ban Expansive And Vague
But that does not end the First Amendment concern. There is another sense in which the statute is not narrowly tailored and therefore violates the First Amendment’s guarantee of free speech. The statute is so expansive and so vague that it chills offenders and their associates, including individuals and entities not before the court, from using those portions of the Internet that the defendants claim are open to them. Those twin deficiencies violate the First Amendment (as well as the Due Process Clause).
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Expansively written laws designed to protect children are not exempt from the constitutional requirement of clarity under both the First Amendment and the Due Process Clause:
Due process requires that laws give people of ordinary intelligence fair notice of what is prohibited. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). The lack of such notice in a law that regulates expression “raises special First Amendment concerns because of its obvious chilling effect on free speech.” Reno v. American Civil Liberties Union, 521 U.S. 844, 871–872, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997). Vague laws force potential speakers to “‘steer far wider of the unlawful zone’. . . than if the boundaries of the forbidden areas were clearly marked.” Baggett v. Bullitt, 377 U.S. 360, 372, 84 S. Ct. 1316, 12 L. Ed. 2d 377 (1964) (quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958)). While “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity,” Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989), “government may regulate in the area” of First Amendment freedoms “only with narrow specificity,” NAACP v. Button, 371 U.S. 415, 433, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963); see also Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982). These principles apply to laws that regulate expression for the purpose of protecting children. See Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 689, 88 S. Ct. 1298, 20 L. Ed. 2d 225 (1968).
Brown v. Entm’t Merch. Ass’n, 131 S. Ct. 2729, 2743 (2011) (holding ban on sale of violent video games to minors violated the First Amendment) (Justice Alito, with Chief Justice Roberts, concurring) (emphasis added).
Several examples are illustrative of the expansive nature of the statute and its lack of clarity. I will start with a fairly simple example of the problem using “text messages” and “instant messaging” as the focal point. I will then proceed to use the defendants’ proposed narrowing constructions to further highlight the lack of clarity.
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The statute states that an offender covered by the statute may not “use” an “instant messaging” service. “Instant messaging” is then defined as “a direct, dedicated, and private communication service, accessed with a computer or electronic communication device, that enables a user of the service to send and receive virtually instantaneous text transmissions or computer file attachments to other selected users of the service through the Internet or a computer communications network.” Neb. Rev. Stat. § 29-4001.01(11). The defendants claim that “text messages”—as opposed to “instant messages”—are not covered because those messages are not sent and received “virtually instantaneously.” If “text messages” are covered, that would pose an insurmountable burden for the defendants to overcome because there are literally billions of text messages sent every day in the United States.22
Put aside, for the moment, the ambiguity of the words “virtually instantaneous.” Assume, for the sake of argument, that I conclude that “text messages” are not covered by the statute because the exchange between the sender and the recipient is not “virtually instantaneous.” Nevertheless, there remains a big problem.
Although the defendants are apparently unaware of the technology, “text messages” can be sent and received by instant messaging services such as Google Talk, Windows Live Messenger, and Yahoo Messenger. See Brandon De Hoyos, 8 Free Text Messaging Services, Apps23; David Pogue, The Disruptive Power of iMessage, N.Y. Times (Mar. 22, 2012) (“It started with iMessages, an iPhone/iPad app that lets you send text messages between Apple hand-held gadgets without cost. Instead of using the cellphone network (and paying 20 cents each or whatever), texts
22In 2011, one commentator observed that 2.5 billion text messages were sent per day in the United States and the commentator further noted that Apple, Google,and Microsoft were beginning to provide free text messaging services. Dead Zone (May 26, 2011), http://www.deadzones.com/search?q=how+many+text+messages+are+ sent+a+day.
23http://im.about.com/od/advancedimfeatures/tp/free-text-messages.htm.
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you send using this little app get sent across the Internet, costing you pretty much nothing.”).24 Indeed, there is an economic incentive to use an instant messaging service to send text messages—they are “free.” Does an offender who knowingly and intentionally “uses” an “instant messaging” service only for the purpose of sending or receiving “text messages” commit a crime? The defendants do not know, and neither do I.25
(iii) Proposed Narrowing Constructions Further Illustrate Vagueness
The defendants have proposed a number of limiting constructions in apparent recognition that the statute is both overbroad and vague. They are:
1. “Collection of web sites,” as used in the definition of “social networking web site,” Neb. Rev. Stat. § 29-4001.01(13), includes only those URLs (Uniform Resource Locators) that share common domain names, but contain different directories or subdirectories. For example, www.espn.com and www.davidpost.com would not be part of the same “collection of web sites,” but www.davidpost.com/about and www.davidpost.com/publications would be because they “share the same top-, second-, and third-level domain names and differ only with respect to the directories included to the right of the top-level domain name.” (Filing 522 at CM/ECF p. 24.)
2. Whether a social networking web site, instant messaging, or chat room service “allows” a minor to access or use the site or service in section 28-
24http://pogue.blogs.nytimes.com/2012/03/22/the-disruptive-power-of-imessage 25Nor do the defendants propose a limiting construction that addresses this issue.
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322.05(1) includes “only those that expressly say so in their terms of use.” (Filing 522 at CM/ECF p. 25.) The State maintains that each time a registered sex offender attempts to use a site or service, he or she must view the site’s terms and conditions of use. If the site expressly limits use of its services to those 18 or older, section 28-322.05 would not prohibit use of the site; if the terms of use allow those 13 or older to use the site, section 28-322.05 would prohibit use of the site; and if the terms of use are silent as to the age of its users, “the registered sex offender could not be guilty of ‘knowingly and intentionally’ using such a site, the mens rea required under Neb. Rev. Stat. § 28-322.05.” (Filing 522 at CM/ECF p. 26.)
3. A registered sex offender does not “use” a prohibited site or service under section 28-322.05 unless the offender “communicates with another person on the site or service.” Therefore, “[m]erely accessing a site to read the terms of use, or to read content on a page, would not constitute ‘use’ prohibited under the language of the statute.” (Filing 522 at CM/ECF p. 28.)
4. “Virtually instantaneous” for purposes of the definitions of “chat room” and “instant messaging” in Neb. Rev. Stat. § 29-4001.01(3) and (10) means “real time.” (Filing 522 at CM/ECF p. 29.) Therefore, e-mail would not be encompassed within those definitions because “the provider stays in the middle of that transaction” and “holds the communication . . . until somebody on the other side decides to go get it.” (Tr. 192:13-16.)
As an initial matter, I reject these proposed limiting constructions because the statute is not “readily susceptible” to the proposed interpretations. To be specific, the constructions are not “reasonable” or “readily apparent” from the language and history of the statute.
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A limiting construction cannot be supplied unless an ordinance is “readily susceptible” to such an interpretation, see State of Va. v. Am. Booksellers Ass’n, 484 U.S. 383, 397, 108 S. Ct. 636, 98 L. Ed. 2d 782 (1988), because federal courts “lack jurisdiction authoritatively to construe state legislation.” Gooding v. Wilson, 405 U.S. 518, 520, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972), quoting United States v. Thirty-Seven Photographs, 402 U.S. 363, 369, 91 S. Ct. 1400, 28 L. Ed. 2d 822 (1971). Limiting constructions of state and local legislation are more appropriately done by a state court or an enforcement agency. Ward v. Rock Against Racism, 491 U.S. 781, 795-96, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989).
Ways v. City of Lincoln, 274 F.3d 514, 519 (8th Cir. 2001). See also United States v. Stevens, 130 S. Ct. 1577, 1592 (2010) (in applying limiting construction, court will not rewrite law to conform it to constitutional requirements because it would “constitute a serious invasion of the legislative domain” and “sharply diminish” the legislative body’s “incentive to draft a narrowly tailored law in the first place”) (internal quotation marks & citations omitted); United Food & Commercial Workers Int’l Union v. IBP, Inc., 857 F.2d 422, 431 (8th Cir. 1988) (although federal courts are “generally without authority to construe or narrow state statutes,” courts may adopt party’s limiting construction if that construction is “reasonable and readily apparent” from language and legislative history of statute).
Nonetheless, these proposed limiting constructions are good examples of the expansive and vague nature of the statute. Without intending to cover each of the problems with these constructions, I will examine each construction in turn to illustrate my concerns.
The first proposed construction relates to the definition of “social networking web site” and “collection of web sites” and, frankly, it is among the most forceful examples of the vagueness of the statute. It proposes to define a “collection of web sites” to mean sites that share common domain names, but contain different directories or subdirectories—that is, sites that “share the same top-, second-, and third-level
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domain names and differ only with respect to the directories included to the right of the top-level domain name.” (Emphasis added.) While I cannot fathom how anyone could have derived this limiting construction from the words of the statute or its history, and while it is apparent that the construction derives from the exigencies of this litigation rather than the words and history of the statute, the construction itself perfectly shows the lack of clarity.
What if one of the “directories” in a “collection of web sites” were to the left of the “top-level domain name” as with some Google products?26 Even more confusingly, what if you could access a seemingly innocuous “homepage” such as iGoogle, with a “directory” to the right of the “top-level domain name,” but that access would seamlessly take you to a site with a “directory” to the left of the “toplevel domain name” such as Google+, Google’s “Facebook” equivalent?27 These are perfectly genuine questions for which the proposed construction, and the defendants, provide no answer.
The second proposed construction is a good example of this confusion as well. That construction purports to limit the word “allows” to the “terms of use” of the respective sites. It therefore delegates to a private party the meaning of the word “allows.” This construction also ignores the fact that web sites may violate their own terms of use and knowingly “allow” children to use the web site despite the terms of use. See, e.g., Xanga.com to Pay $1 Million for Violating Children’s Online Privacy
26For example, compare (1) Google’s “Facebook” equivalent known as Google+, https://plus.google.com/, with (2) Google (the search engine), http://www.google.com/.
27Using iGoogle, http://www.google.com/ig, Google’s “home page,” one can click on the “+You” symbol and that act takes you directly to Google+, https://plus.google.com/, Google’s “Facebook” equivalent, without having to log in to Google+. Is that scenario a “collection of web sites”? (As opposed to Internet Explorer, access the links in this footnote through Google Chrome, Mozilla Firefox, or another browser.)
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Protection Rule (Federal Trade Commission Press Release, Sept. 7, 2006).28 Keying on the vendor’s terms, rather than what takes place in practice, this proposed construction is flatly inconsistent with the plain meaning of the word “allows.” Still further, the second proposed construction imposes upon the offender the obligation to read and understand29 the vendor’s terms-of-use policy each time the offender uses the site.30 Importantly, this construction also fails to acknowledge that the “terms of use” may be worded in such a way as to permit change without notice. In effect, defense counsel propose that the word “allows” in the statute means whatever Google or some other vendor says it means from one minute to the next.
The third proposed construction also proves the lack of clarity. It suggests that “use” requires that the offender “communicate[] with another person on the site or service.” What if the offender registered with Google+ and publicly posted a profile that invited business people to contact the offender at his business telephone number or business address, but the offender never had a “chat” on Google+ or sent a text or instant message through Google+ or responded to such a message in Google+? Has
28http://www.ftc.gov/opa/2006/09/xanga.shtm. In that case, the Federal Trade Commission alleged that Xanga, a social networking site with 25 million registered accounts, knowingly allowed children under age 13 to participate despite the terms of use. Xanga agreed to the entry of a consent degree and payment of a large penalty.
29If a terms of “use” policy stated that 16- and 17-year-old teenagers, with the consent of their parents, could use the site, but all other children are prohibited from doing so, are 16- and 17-year-olds “allowed” to use the site?
30As a former prosecutor, Mr. Nigam was “comfortable” in declining prosecution of an offender who violated the law after the terms of use changed if the offender checked the web site before the change, but not each time the offender used the site. (Tr. 258:1-260:4.) That attitude may not, of course, be shared by Nebraska prosecutors, and it is a prime example of the vice of this vagueness. Nigam’s implicit suggestion that a vague statute can be saved by depending upon prosecutors to sort out the meaning of a statute was, to say the least, unsettling. Among other things, it evidenced a complete misunderstanding of the law.
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the offender “used” Google+? Again, the defendants have no answer to this basic question, and neither do I.
Without intending to be unkind, the fourth suggested construction is laughable. It states that “virtually instantaneous”—for purposes of “instant messaging” services or “chat rooms”—means “real time.” What, in the world, does “real time” mean? Particularly when it comes to “text messages” sent through “instant messaging” services, the substitution of the words “real time”31 for “virtually instantaneous” is of no help whatever in clarifying the glaring ambiguity in the statute. The proposed construction is very much like a dog chasing its tail—the dog and the tail simply turn in a humorous circle.
While there are numerous other examples of the incoherence of the statute,32 the foregoing examples make the point starkly. The statute is expansive and unclear, even after good defense lawyers tried to make sense out of it. In short, it is not “narrowly tailored.”
31In the computer world, “real time” may simply mean “predictable.” For example, “‘[r]eal-time’, as used in the context of the Sun Java Real-Time System product, means predictable. Real-time does not, in this context, have the sort of ‘in the moment’ meaning that you hear in, for example, gaming circles.” Sun Java RealTime System–FAQ, General, What does real-time Java really mean?, http://www.oracle.com/technetwork/java/javase/tech/faq-jsp-139205.html#1.
32First among them is the meaning of “access or use.” The statute bans use of a site that “allows a person who is less than eighteen years of age to access or use its social networking web site, instant messaging, or chat room service . . . .” (Emphasis added.) The former prosecutor who was called as a defense expert admitted that “[t]o me they are the same things but whoever wrote this must have thought there was some difference that they were trying to figure out.” (Tr. 262.) But he could not “predict why it’s written as ‘access or use.’” (Tr. 261.)
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b. Ample Alternative Channels
Although the foregoing finding on “narrow tailoring” is enough to invalidate the statute, the plaintiffs also assert that the challenged statutes do not leave open comparable alternative channels of communication. “By completely foreclosing the popular and ubiquitous mediums of social networking websites, chat rooms, and instant message systems, there are insufficient remaining avenues of communication for speech on the Internet and in society.” (Filing 496 at CM/ECF pp. 14-15.) The defendants respond that the use of the Internet is not entirely foreclosed. Frankly, this is a little like banning the use of the telephone and then arguing that First Amendment values are preserved because the user can (perhaps) resort to a walkie-talkie.
As a general matter, “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Schneider v. New Jersey, 308 U.S. 147, 163 (1939). More specifically, the Supreme Court has said that even when the government has a compelling interest in restricting one channel of speech, there must be “ample alternative channels” left open. Ward, 491 U.S. at 791 (emphasis added). The Supreme Court uses the word “ample” not as an afterthought, but as a real safeguard. See, e.g., Linmark Assoc., Inc. v. Willingboro Tp., 431 U.S. 85, 93 (1977) (township ordinance prohibiting posting of real estate “For Sale” and “Sold” signs for purpose of stemming what township perceived as flight of white homeowners from racially integrated community violated First Amendment because alternative methods of communication, which involved more cost and less autonomy than signs and were less likely to reach persons not deliberately seeking sales information, were insufficient).
Two examples illustrate why the statute does not leave open “ample” alternative channels. One example is taken from the headlines of a recent tumultuous and fastmoving international event. The other is taken from an event that has importance only to those few who are participants, but to those folks, the incident has great significance.
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First, assume for a moment that an offender subject to the ban wanted “up-tothe-minute” information on the demonstrations that took place during the “Arab Spring.” Perhaps the offender’s family came from the Middle East. Perhaps the offender had family still living in that region. Perhaps the offender’s relative was caught up in the turmoil. “Twitter and Facebook” played “a pivotal role in broadcasting information from inside the demonstrations in Cairo’s Tahrir Square and elsewhere . . . .” Jillian C. York, The Revolutionary Force of Facebook and Twitter, Neiman Reports (Fall 2011).33 Under Nebraska’s ban, the offender is barred from receiving this information from Twitter and Facebook—news that might not be available from any other source—even though the hunger for that news poses no threat to children.
Second, when Doe 12’s step-daughter and wife were in Wisconsin for two months because of a medical problem, he and his family members used videoconferencing to keep in touch. Put yourself in the position of an offender and imagine if your child was in a distant hospital and you could not use Skype to talk, see, text, and instant message with her. There is simply no alternative channel—let alone an “ample” alternative—to monitor the child’s health and well-being.
In sum, if the statute were narrowed to those offenders who committed their crimes using one of the apparently banned utilities, and if the statute were purged of its breadth and vagueness, Nebraska could still allow an offender the opportunity to use utilities like Facebook, Twitter, and Skype upon the offender’s truly voluntary consent to the installation of monitoring hardware and software. By doing so, Nebraska could cure the “narrowing” problem while leaving open sufficient alternative channels of communication. There is not the slightest reason to believe that such a targeted solution would be insufficient to address Nebraska’s legitimate, rather than speculative, concerns for children.
33http://www.nieman.harvard.edu/reports/article/102681/The-RevolutionaryForce-of-Facebook-and-Twitter.aspx.
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c. Overbreadth Challenge
A regulation prohibiting “a broad range of protected expression may be facially challenged as overbroad.” Ways v. City of Lincoln, 274 F.3d 514, 518 (8th Cir. 2001). The overbreadth doctrine “enables litigants ‘to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.’” Hill v. Colorado, 530 U.S. 703, 731-32 (2000) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)) (emphasis added).
Under the overbreadth doctrine, “an individual whose own speech or conduct may be prohibited is permitted to challenge a statute on its face ‘because it also threatens others not before the court—those who desire to engage in legally protected expression but who may refrain from doing so.’” Board of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S. Ct. 2568, 96 L. Ed. 2d 500 (1987), quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S. Ct. 2794, 86 L. Ed. 2d 394 (1985). . . . The overbreadth doctrine is “strong medicine” to be used “sparingly” and only when the overbreadth is not only “real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 613, 615, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973).
Ways, 274 F.3d at 518.34
“The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing
34“The rationale for allowing an individual to assert the constitutional rights of others not before the court is that broadly written statutes may have such a deterrent effect on free expression that they should be subject to challenge even by a party whose own conduct may be unprotected.” Ways, 274 F.3d at 518 (internal quotation marks & citation omitted).
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what the statute covers.” United States v. Williams, 553 U.S. 285, 293 (2008). Section 28-322.05(1) makes it a crime for registered sex offenders to “knowingly and intentionally use[] a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use” the site or service. Section 29-4001.01 defines “social networking web site,” “instant messaging,” and “chat room,” but “access or use” is undefined.
To put it bluntly, and as evidenced by the testimony described above, as well as the previous legal analysis, no one can truly know “what the statute covers.” Williams, 553 U.S. at 293. The statute is simply not amendable to a reasoned construction. As Professor Post35 explained in great detail, the terms used in section 28-322.05(1) are ambiguous, and the definitions provided in section 29-4001.01 either cover “almost everything on the Net” or “might cover virtually nothing on the Internet.” (Tr. 74:17-21.) The best I can say is that the statute bars the offenders subject to the statute from having on their computers or communication devices utilities such as MySpace, Facebook, Skype, Twitter, Windows Live Messenger, and Google+.
Whatever the words of section 28-322.05 were intended to mean, it is clear that the language is properly interpreted to “criminalize[] a substantial amount of protected expressive activity,” Williams, 553 U.S. at 297—from associating with friends, family, and business associates over the Internet (the most common method of association in the modern age) to communicating with consumers, customers, or
35Professor Post was the most thoughtful and knowledgeable of the experts. I found his discussion of the term “collection of web sites” in relation to Google products particularly helpful. It is worth remembering that I strongly suggested that the parties get together to hire one independent expert. I even suggested the name of an independent scholar of Internet law. (Filing 354 at CM/ECF p. 33.) The parties did not elect to do so. That was their right. However, candor requires that I state that the defense expert—a former prosecutor—struck me as biased, particularly when compared to Professor Post.
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manufacturers regarding a commercial product or service, to posting and discussing one’s political opinions on an interactive blog or news web site. The ban reaches far beyond the individualized concerns of the plaintiffs.
In summary, Neb. Rev. Stat. § 28-322.05 is overbroad under the First Amendment. It is therefore facially unconstitutional.
2. Section 29-4006(1)(k) and (s)
This statute requires that every offender (without regard to the offense of conviction) provide the State with:
(k) The person’s remote communication device identifiers and addresses, including, but not limited to, all global unique identifiers, serial numbers, Internet protocol addresses, telephone numbers, and account numbers specific to the device;36
. . . .
(s) All email addresses, instant messaging identifiers, chat room identifiers, global unique identifiers, and other Internet communication identifiers that the person uses or plans to use, all domain names registered by the registrant, and all blogs and Internet sites maintained by the person or to which the person has uploaded any content or posted any messages or information.37
36The parties have stipulated in the Order on Final Pretrial Conference that the italicized language is “overbroad and unduly burdensome.” (Filing 492 at CM/ECF p. 2 ¶ 6.) As a result, I declare this part of the statute to be unconstitutional under the First Amendment.
37The parties have stipulated in the Order on Final Pretrial Conference that the italicized language is “overbroad and unduly burdensome.” (Filing 492 at CM/ECF p. 2 ¶ 6.) As a result, I declare this part of the statute to be unconstitutional under the First Amendment.
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Even severing the admittedly unconstitutional portions of this statute from the remainder of the statute, I find and conclude that these portions of the statute violate the First Amendment. Much of the case law applicable to this statute has been set out above, and I will not repeat or discuss it again.
Any suggestion that the required information is not itself “speech” disregards the fact that “[a]nonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society.” McIntyre, 514 U.S. at 357 (holding that Ohio’s statutory prohibition against distribution of any anonymous campaign literature violated First Amendment) (citations omitted). With the importance of anonymity in mind, I turn to the substance.
The statute clearly chills offenders from engaging in expressive activity that is otherwise perfectly proper, and the statute is therefore insufficiently narrow. There are several ways this occurs.
If the offender has an e-mail address, for example, and he provides his e-mail address to the State as required by Neb. Rev. Stat. § 29-4006(1)(s), he must also consent to a search of his computers and electronic communication devices in his home and elsewhere.38 Thus, any offender who does so much as send an e-mail
38Neb. Rev. Stat. § 29-4006(2) (“When the person provides any information under subdivision (1)(k) or (s) of this section, the registrant shall sign a consent form, provided by the law enforcement agency receiving this information, authorizing” a search of his computers or electronic communication devices and the installation of monitoring hardware or software) (emphasis added). While I have declared the entirety of § 29-4006(2) facially unconstitutional on Fourth Amendment grounds for offenders who were not on probation, parole, or court-monitored supervision on or after January 1, 2010 (Filing 354 at CM/ECF p. 27), based partly on the concession of the defendants, the defendants have not fully acquiesced in that decision. As a result, the discussion in the text remains relevant under the plaintiffs’ First
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message to his member of Congress is faced with the real possibility that the police will come into his home without a warrant to search his computer. In other words, the offender is forced to choose between his First Amendment rights and his Fourth Amendment rights. Many a rational offender will give up a computer and the ability to express himself on the Internet to remain secure in his home. Unless the statute is properly narrowed, the Constitution does not require offenders to give up their First Amendment rights in order to preserve their Fourth Amendment rights.
There is also another way the statute improperly chills too much speech. The questioned statute requires the offender to inform the State about “all blogs and Internet sites maintained by the person or to which the person has uploaded any content or posted any messages or information.” (Emphasis added.) Simply put, the statute requires offenders to tell the government if the offender has his own Internet site or blog and when and where the offender has expressed himself on that site or blog or any other blog.39
The Internet, and blogs in particular, allow “any person with a phone line [to] become a town crier with a voice that resonates farther than it could from any soapbox,” and the precedents from the Supreme Court “provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.” Reno v. ACLU, 521 U.S. at 870. Blogs frequently, and perhaps mostly, involve discussion of matters of public concern. Blogs are by their nature open to the public and pose no threat to children. That sex offenders—perhaps the most reviled group of people in our community—may “blog” threatens no child, but the government reporting requirement—that puts a stake through the heart of the First
Amendment challenge. 39One estimate puts the number of active English language blogs at 450 million.
J. Haynes, So How Many Blogs Are There, Anyway? (Feb. 1, 2010), http://www.hattrickassociates.com/2010/02/page/2/.
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Amendment’s protection of anonymity—surely deters faint-hearted offenders from expressing themselves on matters of public concern. In particular, it substantially deters offenders from criticizing the government and officials of the government, including most especially overzealous prosecutors and cops.
The same thing is true of “Internet sites maintained” by the offender. A site publicly available on the Internet poses no threat to children—after all, every police officer in the world can see it. But the requirement that offenders report to the police regarding the material they post to Internet sites they operate will surely deter offenders in business40 from maintaining such sites. In short, far too much expressive activity is unnecessarily chilled by this part of the statute.41
Let me be concrete. Two examples will serve that purpose.
First, assume Doe has a business selling “widgets.” To promote his business, Doe has an Internet site entitled “Doe’s Widgets.” Because the market for “widgets” is driven largely by price and prices fluctuate daily, and because Doe has a sweet deal with a manufacturer, he markets his “widgets” by claiming to beat anyone’s prices. Each day, as the market fluctuates, Doe uploads a new price sheet with that day’s “best” prices. He also frequently adds testimonials from companies that have bought his “widgets.” Doe processes orders on the site and responds to customer complaints.
Under the statute, each time Doe would try to market his “widgets” on his Internet site by adding content to the site, he would be obligated to tell Nebraska when and where he made that effort. He would be obligated to do that notwithstanding the fact that Nebraska could, if it drafted a statute that conformed with SORNA [the
40Doe 17, Doe F, Doe 3, Doe 18, Doe 2, Doe 24, and Doe 12 provided testimony about their business activity using the Internet, and that testimony has relevance to the discussion in the text.
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federal Sex Offender Registration and Notification Act], require Doe to give Nebraska his Internet address. Nebraska could then do its own due diligence. Far too much speech is unnecessarily burdened by the requirement that Doe report his daily business activity to the government.
Second, assume Doe is also a critic of Nebraska’s Attorney General. Assume additionally that there is a law professor who maintains a blog to discuss the activities of the various state Attorneys General. The professor calls the blog “Eyes on AGs.” On a daily basis, Doe has an interactive exchange, in the comment section of “Eyes on AGs,” with adults who discuss their thoughts about Nebraska’s Attorney General or some other Attorney General. Every time Doe adds something to the law professor’s blog, Doe must tell the Nebraska State Patrol or the local sheriff that he has done so. Again, far too much speech is unnecessarily burdened by the requirement that Doe report to the government his daily political activity on blogs.
To be clear, requiring Internet identifiers and addresses, including designations for purposes of routing or self-identification, as permitted by the federal Attorney General’s Guidelines, is one thing.42 Requiring sex offenders to constantly update the government about when and where they post content to Internet sites and blogs is an entirely different thing. This is true both because the requirement is unnecessarily burdensome and because the requirement is likely to deter the offender from engaging in speech that is perfectly appropriate. See, e.g., White v. Baker, 696 F. Supp. 2d 1289, 1310 (N.D. Ga. 2010) (holding that Georgia’s blog reporting requirement violated the First Amendment).
One other item is especially worth mentioning. Assistant Attorney General Corey O’Brien was the principal architect of LB 97, and in December 2008, he indicated in an e-mail to Senator Lautenbaugh that although he “would personally like
42The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38030-01, at 38055, 2008 WL 2594934 (July 2, 2008).
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to prevent [persons with prior sex offenses] from using the internet altogether, that would be unconstitutional. However, depriving them from accessing certain parts of the internet is perfectly constitutional.” (Ex. 199.) Given the overly burdensome nature of the Internet and blog-uploading reporting requirement and this e-mail, there is good reason to believe that Nebraska tried to do indirectly what it could not do directly.
Finally, for the reasons I have just expressed, section 29-4006(1)(k) and (s) is plainly overbroad under the First Amendment. Most offenders are likely to use the Internet whether they are parties to this litigation or not. Virtually all such offenders are subject to this provision of the law. Therefore, I declare these provisions of the statute facially unconstitutional.
C. Due Process (Vagueness) Challenge to Section 28-322.0543
A criminal statute fails to comport with due process if the statute “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008); see also Skilling v. United States, 130 S. Ct. 2896, 2933 (2010); Hill v. Colorado, 530 U.S. 703, 732 (2000); Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972). “An overly vague statute ‘violates the first essential of due process of law,’ because citizens ‘must necessarily guess at its meaning and differ as to its application’.” United States v. Bamberg, 478 F.3d 934,
43Plaintiffs argue in their post-trial brief that section 29-4006(2) is unconstitutionally vague. (Filing 521 at CM/ECF p. 72.) However, my prior order limited the outstanding due process vagueness issue to section 28-322.05. (Filing 354 at CM/ECF pp. 28-34.) If the plaintiffs intended to bring a due process challenge on vagueness grounds regarding section 29-4006(2), I may have erred in failing to set that matter for trial. So far as I am concerned, the plaintiffs would not be barred from challenging section 29-4006(2) on due process vagueness grounds in another suit.
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937 (8th Cir. 2007) (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)).
When a law affects “core First Amendment speech,” a law’s failure to provide fair notice of what constitutes a violation is “a special concern” because it “inhibit[s] the exercise of freedom of expression and inevitably lead[s] citizens to steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.” Stahl v. City of Saint Louis, 687 F.3d 1038, 1041 (8th Cir. 2012) (finding facially unconstitutional under Due Process Clause city ordinance that prohibited expressive activity that had consequence of impeding pedestrians or vehicular traffic because ordinance failed to provide fair notice of prohibited conduct and excessively chilled protected speech) (internal quotation marks & citation omitted).
Speech is an activity particularly susceptible to being chilled, and regulations that do not provide citizens with fair notice of what constitutes a violation disproportionately hurt those who espouse unpopular or controversial beliefs. See NAACP v. Button, 371 U.S. 415, 433, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963) (“These freedoms are delicate and vulnerable, as well as supremely precious in our society. . . . Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.”).
Stahl, 687 F.3d at 1041-42.
“There is a two-part test to determine whether a statute is void for vagueness. The statute, first, must provide adequate notice of the proscribed conduct, and second, not lend itself to arbitrary enforcement.” United States v. Bamberg, 478 F.3d at 937. (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)). See also State v. Rung, 774 N.W.2d 621, 632 (Neb. 2009) (“The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”). “Statutes are to be evaluated under these standards using principles of flexibility and reasonable breadth.” Agena v. Lancaster Cnty. Bd. of Equalization, 758 N.W.2d 363, 374 (Neb. 2008).
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The fact that a court can envision “hypotheticals” and “close cases” does not “render[] a statute vague” because “[c]lose cases can be imagined under virtually any statute. The problem that poses is addressed[] not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt.” Williams, 553 U.S. at 30506. Importantly, “[w]hat renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is.” Id.
As I discussed regarding the plaintiffs’ First Amendment challenge, section 28322.05 is hopelessly indeterminate as to what it prohibits. There is no need to regurgitate the numerous examples of this indeterminacy that I discussed earlier. It is enough to state, by way of reminder, that (1) no one knows what a “collection of web sites” is, and without that understanding, the whole of the Internet could be banned; (2) Mr. Nigam, the defendants’ expert and a former prosecutor, did not understand the difference between the words “access or use” set forth in the statute when assessing whether minors were involved with Internet sites, although he assumed that the writer of the statute thought those two words meant different things; and (3) Nigam essentially testified that one would have to rely upon the good faith of prosecutors to cure the vagueness problem inherent in the State’s reliance upon a vendor’s terms-of-use policy, a policy that might change from moment to moment without notice.
In summary, section 28-322.05 is facially unconstitutional because it is vague under the Due Process Clause.
D. Ex Post Facto Challenge to Sections 29-4006(1)(k) and (s), 29-4006(2) & 28-322.05
The next issue for resolution is whether Neb. Rev. Stat. §§ 29-4006(1)(k) and (s), 29-4006(2), and 28-322.05 (West, Operative Jan. 1, 2010), alone or collectively, facially or as applied, violate the Ex Post Facto Clause of the United States and Nebraska Constitutions for (1) offenders who had served their time and were no
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longer under criminal justice supervision on January 1, 201044; and (2) offenders who had been sentenced prior to January 1, 2010, but who remained under criminal justice supervision on or after January 1, 2010.45
As I explained in my previous memorandum and order on the parties’ motions for summary judgment, “[a] law violates the Ex Post Facto Clause when it applies to events occurring before the law’s enactment and the law disadvantages the offender, such as by practically increasing the punishment the offender was subject to on the date of enactment.” (Filing 354, CM/ECF p. 13 n.16.) See U.S. Const. art. I, § 10, cl. 1; Neb. Const. art. I, § 16. While Plaintiffs challenge the statutes under both the United States and Nebraska Constitutions, I must “undertake only a single analysis because [the Nebraska Supreme Court] ordinarily construes Nebraska’s ex post facto clause to provide no greater protections than those guaranteed by the federal Constitution.” Slansky v. Nebraska State Patrol, 685 N.W.2d 335, 350 (Neb. 2004).
The question whether the statutes at issue “violate[] state and federal constitutional proscriptions against retroactive punishment is analyzed under the U.S. Supreme Court’s two-prong, ‘intent-effects’ test for analyzing punishment.” State v. Worm, 680 N.W.2d 151, 160 (Neb. 2004) (citing Smith v. Doe, 538 U.S. 84 (2003)). Under this test, “[i]f the intention of the legislature was to impose punishment, that ends the inquiry.” Smith, 538 U.S. at 92. If, however, “a court determines that the Legislature intended a statutory scheme to be civil, that intent will be rejected ‘only where a party challenging the [statute] provides the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the State’s intention.’” Worm, 680 N.W.2d at 160 (quoting State v. Isham, 625 N.W.2d 511, 515 (Neb. 2001)); see also Doe v. Miller, 405 F.3d 700, 718 (8th Cir. 2005) (ex post facto
44This group encompasses all numbered Doe plaintiffs except Does 12, 13, 17, 23, and 25. (Tr. 35:7-22.)
45This group encompasses Does 12, 13, 17, 23, and 25. (Tr. 35:7-22.)
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analysis in case challenging constitutionality of state statute imposing residency restrictions on sex offenders).
Deciding whether a statutory scheme is civil and nonpunitive, as opposed to criminal, “is first of all a question of statutory construction” which requires the court to “consider the statute’s text and its structure to determine the legislative objective.” Smith, 538 U.S. at 92 (internal quotation marks & citations omitted). This involves considering whether the legislature expressly or impliedly indicated a civil or criminal preference; the manner of statutory codification; the enforcement procedures the statutes establish; and the procedural mechanisms that will implement the statutes. Smith, 538 U.S. at 93-96.46
If the court decides that the legislature intended to create a civil, nonpunitive statutory scheme, the court must then determine whether the effect of a statute is so punitive as to negate the legislature’s intent. To do so, a court should observe several factors that are neither exhaustive nor dispositive, but rather serve as “useful guideposts.” Smith, 538 U.S. at 97 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963)) (internal quotation marks omitted):
“(1) ‘[w]hether the sanction involves an affirmative disability or restraint’; (2) ‘whether it has historically been regarded as a punishment’; (3) ‘whether it comes into play only on a finding of
46After reviewing the evidence presented on the parties’ cross-motions for summary judgment, I previously concluded that “it would be impossible to conclude that the entirety of Nebraska’s new legislation was intended to be punitive in nature. In general, the record adequately establishes that Nebraska mainly intended to amend its law to comply with SORNA [the Sex Offender Registration and Notification Act].” (Filing 354 at CM/ECF p. 14 n.17.) However, I concluded that a trial was necessary with regard to sections 29-4006(1)(k) and (s), 29-4006(2), and 28-322.05 because these provisions are foreign to SORNA; a Nebraska legislator who authored these provisions made comments about his lack of objectivity toward sex offenders; and these provisions are “far[-]reaching and novel.” (Filing 354 at CM/ECF p. 13.)
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scienter ’; (4) ‘whether its operation will promote the traditional aims of punishment—retribution and deterrence’; (5) ‘whether the behavior to which it applies is already a crime’; (6) ‘whether an alternative purpose to which it may rationally be connected is assignable for it’; and (7) ‘whether it appears excessive in relation to the alternative purpose assigned.’”
Worm, 680 N.W.2d at 161 (quoting State v. Isham, 625 N.W.2d 511, 515-516 (Neb. 2001), quoting Hudson v. United States, 522 U.S. 93 (1997), quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963)); see also Doe v. Miller, 405 F.3d at 719 (while Kennedy v. Mendoza-Martinez factors are aid to analysis, the “ultimate question always remains whether the punitive effects of the law are so severe as to constitute the ‘clearest proof’ that a statute intended by the legislature to be nonpunitive and regulatory should nonetheless be deemed to impose ex post facto punishment”).
Thus, I must decide whether (1) the Nebraska Legislature intended to maintain a civil regulatory scheme in enacting Neb. Rev. Stat. §§ 29-4006(1)(k) and (s), 29-4006(2), and 28-322.05 and, if so, (2) whether the plaintiffs have established by the “clearest proof” that the effects of the statutory language at issue negate the Nebraska Legislature’s intent to create a civil, nonpunitive statutory scheme.
I decide that the intent of the Nebraska Legislature was to punish sex offenders, and these laws therefore violate the Ex Post Facto Clause of the United States Constitution, as well as the equivalent Nebraska provision. That is, these laws are facially unconstitutional regarding (1) offenders who had served their time and were no longer under criminal justice supervision on January 1, 2010; and (2) offenders who had been sentenced prior to January 1, 2010, but who remained under criminal justice supervision on or after January 1, 2010.
The statements of the introducer of the bills, coupled with the text, structure, and history of these laws, including the enforcement procedures and the procedural
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mechanisms that serve to implement the laws, make this evident. Next, I explain this decision in more detail.
First, if I am to do my job as a judge (and particularly as a finder of fact), I must not shrink from the truth. The truth is that the hand-picked introducer of the bill that spawned these extraordinary statutes, acting at the behest of the chief law enforcement officer for Nebraska, the Attorney General, essentially admitted the punitive intent of these provisions. He admitted that he lacked objectivity, and he admitted that he was driven by “rage” at, and “revulsion” for, the sex offenders who were the targets of these extraordinary measures. The senator could not have been more plain.
In this vein, when the plaintiffs sought to depose Nebraska legislators on this very topic, the Nebraska Attorney General’s office, the body defending the litigation while at the same time serving as the moving force behind these laws, successfully asserted legislative privileges to thwart the plaintiffs’ effort to get at the truth. While the defendants and their lawyers were entitled to invoke these privileges, and while this court was duty-bound to apply the law of privilege, the defendants cannot now claim that the evidence is lacking regarding the true motives of the law-makers. That is, the defendants will not be allowed to use their privilege defenses as both a sword and shield.
Second, the Nebraska Legislature went far beyond its purported purpose of bringing the Nebraska Sex Offender Registration Act into compliance with the federal guidelines created by the Adam Walsh Child Protection and Safety Act of 2006 (P.L. 109-248), otherwise known as the Sex Offender Registration and Notification Act (“SORNA”).47 (Ex. 302, Introducer’s Statement of Intent, LB 285 (Mar. 18, 2009).) SORNA requires a person to disclose his or her Internet identifiers and addresses, such as e-mail addresses and instant messaging identifiers, but does not criminalize registrants’ use of social networking web sites, instant messaging, or chat rooms, nor
47SORNA is codified at 42 U.S.C. §§ 16901-16991. 61

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does it require registrants to subject themselves to search and monitoring of their computers and electronic communication devices within their homes, places of employment, and schools. In addition, once Internet identifiers have been provided, SORNA does not require that offenders tell the government every time the offender uploads content to an Internet site or blog. While it is true that “SORNA does not bar jurisdictions from adopting additional regulation of sex offenders for the protection of the public, beyond the specific measures that SORNA requires,” The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38030-01, at 38034, 2008 WL 2594934 (July 2, 2008) (Ex. 303), if the Nebraska Legislature’s intent was mere compliance with a civil regulatory scheme, these broad, additional, and oppressive criminal provisions would not have been included.
Third, the impact of these statutes is to impose what is essentially a long-term, and, in some cases, a life-term, period of “supervised release” that would be right at home in a typical federal judge’s criminal sentence for a sex offense. Many offenders are prohibited from using enormous portions of the Internet upon pain of a jail or prison sentence.48 All offenders who use the Internet must tell the government any time they post information to an Internet site or a blog, and the failure to do so is a felony.49 All offenders who use the Internet must “consent” to the search of their
48A violation of section 28-322.05(1) (the “social networking” crime) is a misdemeanor for the first offense and a felony for the second offense. Neb. Rev. Stat. § 28-322.05(2).
49The failure to provide or update the information required by section 29-4006(1)(k) and (s) or to provide the “consent” form required by Neb. Rev. Stat. § 29-4006(2) violates § 29-4006(10). In turn, a violation of § 29-4006 is a crime. Neb. Rev. Stat. § 29-4011(1) (“Any person required to register under the Sex Offender Registration Act who violates the act is guilty of a Class IV felony.”) Such a felony is punishable by imprisonment of up to five years and a fine of up to $10,000. Neb. Rev. Stat. § 28-105(1) (West 2009).
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computers whether at home or otherwise, and they must also “consent” to the installation of monitoring equipment—the failure to do so is a felony.50
There are, of course, two important differences between a federal judge’s imposition of a term of supervised release and Nebraska’s scheme. In Nebraska’s scheme, the offender has no impartial judge determining the need for the conditions, and in Nebraska the offender has no impartial judge monitoring the administration of the conditions. Under Nebraska’s scheme, those things are done by law enforcement agents. Furthermore, once a federal offender has done his or her time and served his or her term of supervised release, the offender does not need to fear that the offender will be subjected anew to those restrictive conditions and criminal sanctions unless the offender violates the law again.
Fourth, and finally, these statutes are rife with other constitutional infirmities, and the blatant willingness of the Nebraska Legislature to violate the Constitution is strong evidence of animus. These laws gut the First and Fourth Amendment and the Due Process Clause. These statutes retroactively render sex offenders, who were sentenced prior to the effective date of these statutes, second-class citizens. They are silenced. They are rendered insecure in their homes. They are denied the rudiments of fair notice. In Nebraska’s “rage” and “revulsion,” they are stripped of fundamental constitutional rights. In short, sex offenders who were sentenced prior to the enactment of these laws are punished.
E. Doe 24’s Fourth Amendment “As-Applied” Challenge to Section 29-4006(2)
If I have jurisdiction to do so, I must determine the constitutionality of the consent-to-search and consent-to-monitoring provisions of Neb. Rev. Stat. § 29-4006(2) under the Fourth Amendment and the equivalent provision of the
50See supra note 49. 63

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Nebraska Constitution as applied to Doe 24.51 Upon providing certain identifying information related to their electronic communications, section 29-4006(2) requires sex-offender registrants to consent to the “[s]earch of all the computers or electronic communication devices possessed by the person” and the “[i]nstallation of hardware or software to monitor the person’s Internet usage on all the computers or electronic communication devices possessed by the person.”
The plaintiffs “concede that they do not have standing to bring a claim for those on probation or supervised release; further, they concede that this provision could be applied constitutionally to a parolee subject to different terms of parole. However, the plaintiffs argue, because Doe 24 has an expectation of privacy as it relates to general law enforcement, Neb. Rev. Stat. § 29-4006(2) should be held to be unconstitutional as applied to him and those similarly situated.” (Filing 521 at CM/ECF p. 48.) In other words, section 29-4006(2) allows searches and monitoring by general law enforcement personnel, but Doe 24’s terms of parole limit such searches and monitoring to those performed only by parole officers and/or personnel of the Parole Administration.52 (Filing 521 at CM/ECF p. 50.)
51As described in more detail above, I have already “decided that on Fourth Amendment grounds and the equivalent provision of the Nebraska Constitution, Neb. Rev. Stat. § 29-4006(2) is unconstitutional as it regards Plaintiffs who were previously convicted of sex crimes but who were not on probation, parole or court-monitored supervision on or after January 1, 2010.” (Filing 354 at CM/ECF p. 27.) In this opinion, I have also decided that the statutory triggering mechanism for the searchand-monitoring conditions—the provision of e-mail addresses and the like as required by § 29-4006(1)(k) and (s)—is unconstitutional under the First Amendment and Ex Post Facto Clause.
52As stated in the Findings of Fact above, Doe 24’s conditions of parole require him to “obey all . . . laws, ordinances and orders” and to “permit [his] parole officer and/or personnel of Parole Administration to conduct routine searches of [his] person, residence, vehicle or any property under [his] control, at such times as they deem necessary.” (Filing 522, Defs.’ Post-Trial Br. at CM/ECF pp. 33, 42; Filing 521, Pls.’ Closing Arg. Br. at CM/ECF pp. 5, 48-51; Filing 495, Defs.’ Pretrial Br. at CM/ECF
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Relying on Samson v. California, 547 U.S. 843 (2006), the defendants contend that Doe 24, by virtue of his conditions of parole, is “already subject to a muchbroader search and monitor provision” than that provided in section 29-4006(2); that Doe 24 “has no expectation of privacy entitled to protection under the Fourth Amendment throughout the duration of his parole”; and therefore, the court should reject the plaintiffs’ Fourth Amendment challenge to Neb. Rev. Stat. § 29-4006(2). (Filing 522 at CM/ECF pp. 42-43.)
In every Fourth Amendment case, courts must balance the competing values. On the one hand, we jealously guard privacy and our citizens’ right to be free from unreasonable government intrusion. While on the other, we encourage zealous law enforcement to ensure our citizens can safely enjoy their liberties. Accordingly, to determine whether the Fourth Amendment forbids a search, we weigh the degree to which a search intrudes upon an individual’s reasonable expectation of privacy against the degree to which the government needs to search to promote its legitimate interests.
United States v. Brown, 346 F.3d 808, 811 (8th Cir. 2003).
In United States v. Knights, 534 U.S. 112, 119-21 (2001), the Supreme Court noted that probationers “do not enjoy the absolute liberty to which every citizen is entitled,” but instead are subject to “a form of criminal sanction imposed by a court” that is “one point . . . on a continuum of possible punishments.” Id. at 119 (internal quotation marks & citations omitted). In Samson, the Court found that parolees, like Doe 24, are on that same “continuum” with even “fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.” Samson, 547 U.S. at 850 (“The essence of parole is release from
p. 38; Tr. 450:15-24 & Ex. 210.) However, Doe 24 is not subject to the special condition of parole that would have required Doe 24 to “consent to unannounced examination (search) of any and all computer(s) and/or devices to which you have access to.” (Ex. 210 at p. 6.)
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prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.”) (internal quotation marks & citation omitted). Further, when a probationer or parolee “consents to a search condition, his already-reduced reasonable expectation of privacy diminishes significantly.” Brown, 346 F.3d at 811; Samson, 547 U.S. at 852 (petitioner’s status as parolee and terms of parole search condition led Court to conclude that petitioner did not have expectation of privacy that society would recognize as legitimate).
No one argues that the State does not have an “overwhelming interest” in supervising parolees, in reducing recidivism, and in promoting “reintegration and positive citizenship among probationers and parolees,” Samson, 547 U.S. at 853, or that the State has a significant, even compelling, government interest in protecting minors online from sex offenses.53 But that governmental interest is tempered by the Fourth Amendment, which protects parolees under certain circumstances.
Indeed, there may be a big problem for the State. That problem is represented by United States v. Freeman, 479 F.3d 743 (10th Cir. 2007). There, Judge McConnell, writing for the Tenth Circuit, decided that the search of a parolee’s residence by ordinary city police officers, when the parole agreement allowed such searches only by parole officers, was impermissible under the Fourth Amendment. Essential to the Freeman holding were the Kansas Department of Corrections policy statements that provided, “with the exception of pat-down and plain view searches, special enforcement officers are the only personnel authorized to conduct a more extensive search of offenders’ person or property” and that permitted warrantless searches only
53See Neb. Rev. Stat. § 29-4002 (“The Legislature finds that sex offenders present a high risk to commit repeat offenses. The Legislature further finds that efforts of law enforcement agencies to protect their communities, conduct investigations, and quickly apprehend sex offenders are impaired by the lack of available information about individuals who have pleaded guilty to or have been found guilty of sex offenses and who live, work, or attend school in their jurisdiction.”).
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when the special enforcement officer had reasonable suspicion of a parole condition violation. Id. at 744, 747-48. The Freeman court stressed that “[p]arolee searches are therefore an example of the rare instance in which the contours of a federal constitutional right are determined, in part, by the content of state law.” The court also observed that Samson approved the constitutionality of general law enforcement officers’ warrantless parolee searches without reasonable suspicion “only when authorized under state law.” Id.
In reviewing Doe 24’s challenge, I am confronted by the following four uncertainties: (1) Doe 24 may never face the threat of a search and the installation of monitoring hardware and software under § 29-4006(2) because the triggering mechanism—§ 29-4006(1)(k) and (s)—has been declared unconstitutional on grounds other than the Fourth Amendment; (2) Doe 24’s parole may expire before these issues are finally resolved on appeal, and, if so, Doe 24’s expectation of privacy would be different; (3) as the Freeman court noted, Doe 24’s parole conditions, as they relate to his Fourth Amendment challenge, require a construction of state law; and (4) there is no authoritative construction of state law, such as the Kansas policy statements in Freeman, upon which I can rely to understand the reach of Doe 24’s parole conditions, and I have no jurisdiction in this case to tell the Nebraska Parole Board what those parole conditions mean.
These contingencies force me to question whether Doe 24’s challenge is “ripe.” Critically, “ripeness” is a necessary component for Article III jurisdiction:
“Standing and ripeness are sometimes closely related. In assessing ripeness, we focus on whether the case involves ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Missouri Roundtable for Life v. Carnahan, 676 F.3d 665, 674 (8th Cir. 2012) (quoting Care Committee v. Arneson, 638 F.3d 621, 631 (8th Cir. 2011), other citation omitted). Both are requirements for Article III subject matter jurisdiction. Care Committee, 638 F.3d at 627.
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Kennedy v. Ferguson, 679 F.3d 998, 1001 (8th Cir. 2012) (under Arkansas law, as predicted by Court of Appeals, statute of limitations governing challenges that could be brought at any time prior to final distribution of probate estate based on discovery of another will applied to legatee’s lawsuit claiming legal malpractice and constructive fraud against attorney who drafted two wills for legatee’s father, even though legatee’s challenge to validity of first will was supported by mere copy of newly-discovered second will, and thus, legatee’s lawsuit was not ripe under Article III requirements, as legatee’s challenge could have been raised in probate that had not closed, so any cognizable injury to legatee from prospective final distribution of estate was as yet unknown).
“The ripeness doctrine is aimed at preventing federal courts, through premature adjudication, from ‘entangling themselves in abstract disagreements.’” Wersal v. Sexton, 674 F.3d 1010, 1018 (8th Cir. 2012) (en banc) (judicial office candidate’s First Amendment challenge to clause of Minnesota code of judicial conduct prohibiting judicial candidate from soliciting funds for political organizations or candidates was not ripe; candidate only sought to solicit funds for his own campaign committee, which he was permitted to do under the code, and not for another’s campaign or himself personally, and therefore candidate could not show there was likelihood he would face sanctions for engaging in desired conduct) (quoting Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 863 (8th Cir. 2006) , in turn quoting Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 580, 105 S. Ct. 3325, 87 L. Ed. 2d 409 (1985)).
After careful consideration, I decide that Doe 24’s “as-applied” Fourth Amendment challenge to § 29-4006(2) is not “ripe” and must be dismissed for lack of Article III jurisdiction. The four “uncertainties” that I outlined earlier convince me that Doe 24’s challenge involves contingent future events that may not occur as anticipated, or indeed may not occur at all; that Doe 24’s challenge is premature; and that if I
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assumed jurisdiction, I would be entangling the court in the resolution of an abstract question.54
IV. CONCLUSION
For the sake of clarity, I now provide a summary of the rulings I have made earlier and the rulings that I have made in this opinion. The following summary is drawn from my earlier decision on the motions for summary judgment (Filing 354) and this decision:
* Except as noted below, the new Nebraska laws that were enacted by LB 97 (2009) and LB 285 (2009) are constitutional.
* Doe 24’s Fourth Amendment “as-applied” challenge to Neb. Rev. Stat. § 29-4006(2) is not ripe.
* Save for Doe 24’s “as-applied” challenge to § 29-4006(2), Neb. Rev. Stat. §§ 29-4006(1)(k) and (s), 29-4006(2), and 28-322.05 are unconstitutional,
54Therefore, any as-applied Fourth Amendment challenge to Neb. Rev. Stat. § 29-4006(2) asserted by persons associated with Doe 24 is also not ripe. However, my earlier decision finding the statute facially unconstitutional as to previously convicted sex offenders who were not on probation, parole, or court-monitored supervision on or after January 1, 2010, stands. The statute is facially unconstitutional because there is no set of circumstances under which the statute would be valid as to those individuals. United States v. Salerno, 481 U.S. 739, 745 (1987). Essentially, the defendants’ affirmative defense to Doe 24’s claim is that the parole conditions reduce his reasonable expectation of privacy and therefore the statute, even if otherwise unconstitutional as to everyone else, may survive as to Doe 24. That defense is external to the facial validity of the statute and turns on an interpretation of state law that I do not have jurisdiction to make. As a result, the defendants cannot assert that facial invalidation of this statute is prohibited under Salerno.
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both facially and as applied to some of the plaintiffs.55 As indicated in my decision on the motions for summary judgment, Neb. Rev. Stat. § 294006(2) is unconstitutional under the Fourth Amendment as to those plaintiffs who were previously convicted of sex crimes, but who were not on probation, parole, or court-monitored supervision on or after January 1, 2010. Neb. Rev. Stat. §§ 29-4006(1)(k) and (s) and 28-322.05 are unconstitutional under the First Amendment. Neb. Rev. Stat. § 28-322.05 is unconstitutional under the Due Process Clause. Neb. Rev. Stat. §§ 294006(1)(k) and (s), 29-4006(2), and 28-322.05 are unconstitutional under the Ex Post Facto Clause.
Lastly, I compliment all the lawyers for their professionalism and civility. At the initial stages of this litigation, I found Mr. David Cookson, Nebraska’s Chief Deputy Attorney General, to have been especially persuasive, candid, and helpful. I should also single out the lead lawyers for the plaintiffs. Mr. Stuart Dornan, a former FBI agent and a former County Attorney for Douglas County, Nebraska (Omaha), and Mr. Thomas Monaghan, a former United States Attorney for the District of Nebraska, took the plaintiffs’ case despite the fact the plaintiffs are viewed as lepers by many Nebraskans. By taking this case, both men were sure to displease and disappoint their former law-enforcement friends and colleagues. The decision to represent these unpopular plaintiffs took courage and is an example of the highest traditions of the bar of this court.
Accordingly,
IT IS ORDERED that:
55The plaintiffs who succeed on their “as-applied” challenges are set forth in the “order” portion of this document.
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1. The Clerk of Court shall upload Court’s Exhibit 1 to CM/ECF as a restricted document.
2. Except as noted below, the Nebraska laws that were enacted by LB 97 (2009) and LB 285 (2009) are constitutional.
3. Neb. Rev. Stat. §§ 28-322.05 and 29-4006(1)(k) and (s) (West, Operative Jan. 1, 2010) are facially unconstitutional under the First Amendment and the equivalent Nebraska constitutional provision.
4. Neb. Rev. Stat. § 28-322.05 (West, Operative Jan. 1, 2010) is facially unconstitutional under the Due Process Clause and the equivalent Nebraska constitutional provision.
5. Neb. Rev. Stat. §§ 29-4006(1)(k) and (s), 29-4006(2), and 28-322.05 (West, Operative Jan. 1, 2010) are facially unconstitutional under the Ex Post Facto Clause of the United States Constitution and the equivalent Nebraska constitutional provision regarding (a) offenders who had served their time and were no longer under criminal justice supervision on January 1, 2010; and (b) offenders who had been sentenced prior to January 1, 2010, but who remained under criminal justice supervision on or after January 1, 2010.
6. Neb. Rev. Stat. §§ 29-4006(1)(k) and (s) and 29-4006(2) (West, Operative Jan. 1, 2010) are unconstitutional as applied to all those Plaintiffs listed on Court’s Exhibit 1 who are identified therein as “presently a Plaintiff” and who must register as a sex offender under the Nebraska Sex Offender Registration Act, Neb. Rev. Stat. §§ 29-4001 to 29-4014.
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7. Neb. Rev. Stat. § 28-322.05 (West, Operative Jan. 1, 2010) is unconstitutional as applied to Does 2, 3, 4, 6, 12, 13, 17, 18, 19, 27, and 35.56
8. As indicated in my decision on the motions for summary judgment (Filing 354), Neb. Rev. Stat. § 29-4006(2) (West, Operative Jan. 1, 2010) is unconstitutional under the Fourth Amendment as to those plaintiffs who were previously convicted of sex crimes, but who were not on probation, parole, or court-monitored supervision on or after January 1, 2010. Doe 24’s as-applied challenge to Neb. Rev. Stat. § 29-4006(2) under the Fourth Amendment and the equivalent Nebraska constitutional provision is not ripe and is therefore dismissed for lack of Article III jurisdiction.
9. The claims of the plaintiffs who are not required to register as sex offenders are dismissed without prejudice as moot.
10. The claims of the plaintiffs who are shown on Court’s Exhibit 1 to have withdrawn from participation in this lawsuit are dismissed without prejudice.
11. Final judgment will be withheld pending resolution of the attorney fee issue.
12. Counsel for the plaintiffs shall have until November 1, 2012, to submit an application, evidence, evidence index, and brief regarding attorney fees. Counsel for the defendants shall have until November 16, 2012, to respond with evidence, evidence index, and brief. Both sides shall give due attention to the local rules of practice regarding attorney fee applications. Counsel are also encouraged to settle the attorney fee issue, if they can, recognizing that the plaintiffs have been partially, but not wholly, successful.
56These are the plaintiffs (except Doe 24) who counsel stipulated are required to register under the Nebraska Sex Offender Registration Act because of a conviction for one or more of the offenses enumerated in Neb. Rev. Stat. § 28-322.05(1)(a)-(k).
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8:09-cv-00456-RGK-CRZ Doc # 525 Filed: 10/17/12 Page 73 of 73 - Page ID # 6580 DATED this 17th day of October, 2012. BY THE COURT: Richard G. Kopf Senior United States District Judge
*This opinion may contain hyperlinks to other documents or web sites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their web sites. Likewise, the court has no agreements with any of these third parties or their web sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.
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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

JOHN DOE, et al.,

)

)

Plaintiffs,

)

vs.

)

)

STATE OF NEBRASKA, et al.,

)

)

Defendants.

)

______________________________ )

)

JOHN DOE,

)

)

Plaintiff,

)

)

vs.

)

)

NEBRASKA STATE PATROL, )

et al.,

)

)

Defendants.

)

______________________________ )

)

JOHN DOE,

)

)

Plaintiff,

)

)

vs.

)

)

STATE OF NEBRASKA, et al.,

)

)

Defendants.

)

______________________________ )

8:09CV456 MEMORANDUM AND ORDER 4:10CV3266
4:10CV3005

This matter is before the court on the plaintiffs’ motion for attorneys’ fees and expenses (filing 527) pursuant to 42 U.S.C. § 1988, which authorizes district courts

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to award reasonable attorneys’ fees to prevailing parties in civil rights litigation. Plaintiffs request an award of $751,947.67 in attorneys’ fees related to the merits litigation, $13,111.88 for preparation of the application for attorneys’ fees, and $26,182.56 in costs. (Filing 527.) The defendants argue that the amount requested is unreasonable and should be substantially reduced. (Filing 530, Defs.’ Br. Opp’n Pls.’ Mot. Attorneys Fees & Expenses.) For the reasons explained below, I will grant the application in part and deny it in part.
I. BACKGROUND
This litigation began in 2009 in both this court and various state courts. Based on a broad array of constitutional grounds, several convicted sex offenders, their family members, and others who were associated with them filed for injunctive and declaratory relief from several amendments to Nebraska’s Sex Offender Registration Act (“Act”) that were to become effective on January 1, 2010. The nearly 200 defendants included the State of Nebraska, the Nebraska Attorney General, the Nebraska State Patrol, the Superintendent of the State Patrol, local prosecutors, and various law enforcement officers.
The state cases were eventually removed to this court and consolidated into one lawsuit. In this court, the case involved proceedings on preliminary injunctive relief, Doe v. Nebraska, 2009 WL 5184328 (D. Neb. Dec. 30, 2009), motions for certification of state law questions, Doe v. Nebraska, 2010 WL 1568445 (D. Neb. Apr. 15, 2010), cross motions for summary judgment, Doe v. Nebraska, 734 F. Supp. 2d 882 (D. Neb. 2010), discovery disputes, Doe v. Nebraska, 788 F. Supp. 2d 975 (D. Neb. 2011); Doe v. Nebraska, 2011 WL 2413359 (D. Neb. June 15, 2011), a bench trial, Doe v. Nebraska, ___ F. Supp. 2d ___, 2012 WL 4923131 (D. Neb. Oct. 17, 2012), and the pending application for attorneys’ fees.
The plaintiffs asserted several constitutional challenges to the legislation, including claims of double jeopardy, cruel and unusual punishment, equal protection,
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special legislation, separation of powers, and claims under the First Amendment, Due Process Clause, Ex Post Facto Clause, Fourth Amendment, and Contracts Clause. The plaintiffs successfully obtained a preliminary injunction as to certain provisions of the amended Act. Doe v. Nebraska, 2009 WL 5184328 (D. Neb. Dec. 30, 2009). At the summary judgment stage, the plaintiffs did not prevail on several of their claims, but four of those claims went to trial—claims under the First Amendment, the Due Process Clause, the Ex Post Facto Clause, and the Fourth Amendment. Doe v. Nebraska, 734 F. Supp. 2d 882 (D. Neb. 2010). Plaintiffs prevailed on the claims that went to trial, as summarized in the opinion issued following the bench trial:
Save for Doe 24’s “as-applied” challenge to § 29-4006(2), Neb. Rev. Stat. §§ 29-4006(1)(k) and (s), 29-4006(2), and 28-322.05 are unconstitutional, both facially and as applied to some of the plaintiffs. As indicated in my decision on the motions for summary judgment, Neb. Rev. Stat. § 29-4006(2) is unconstitutional under the Fourth Amendment as to those plaintiffs who were previously convicted of sex crimes, but who were not on probation, parole, or court-monitored supervision on or after January 1, 2010. Neb. Rev. Stat. §§ 29-4006(1)(k) and (s) and 28322.05 are unconstitutional under the First Amendment. Neb. Rev. Stat. § 28-322.05 is unconstitutional under the Due Process Clause. Neb. Rev. Stat. §§ 29–4006(1)(k) and (s), 29–4006(2), and 28-322.05 are unconstitutional under the Ex Post Facto Clause.
Doe v. Nebraska, ___ F. Supp. 2d ___, 2012 WL 4923131, at *37 (D. Neb. Oct. 17, 2012) (footnote omitted). As to Doe 24’s “as-applied” Fourth Amendment challenge referenced in the quoted paragraph above, I decided that Doe 24’s challenge to Neb. Rev. Stat. § 29-4006(2) was not ripe. Id.
Thus far, the lead Doe case has resulted in 534 filings and the preparation of at least 15 briefs by Plaintiffs’ counsel, in addition to numerous motions, indices of evidence, and discovery documents. As stated by Plaintiffs’ counsel, “the sheer logistics of managing approximately fifty (50) Doe clients and filing against over two
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hundred (200) Defendants required a great deal of time.” (Filing 528 at CM/ECF p. 17.)
II. DISCUSSION
In U & I Sanitation v. City of Columbus, 112 F. Supp. 2d 902, 903-04 (D. Neb. 2000), I summarized what I consider to be the applicable law in this circuit regarding an award of attorneys’ fees pursuant to 42 U.S.C. § 1988. “When an application for attorney fees is made, the ‘lodestar’ method is used to decide whether it should be granted, and, if so, how much should be awarded.” U & I Sanitation, 112 F. Supp. 2d at 903. This involves (1) deciding whether an award of fees is justified; (2) determining what fees and expenses are typically charged in the relevant market; and (3) calculating the “lodestar,” which is the number of hours reasonably expended multiplied by the applicable hourly market rate for the relevant legal services, with (i) deductions for excessive, redundant, or otherwise unnecessary work and insufficient documentation, (ii) enhancements only when the lodestar method will not ensure competent counsel in future similar cases, and (iii) reductions for partial success (failure to win on all claims when claims and relief are separate) or incomplete success (failure to win on all claims when claims and relief are intertwined because it was necessary to prosecute all related claims to prevail on one). U & I Sanitation, 112 F. Supp. 2d at 903-04.
Plaintiffs request $751,947.67 in attorneys’ fees for 1,702.4 hours of work performed by lawyers, paralegals, and law clerks at hourly rates ranging from $85.00 for paralegals and law clerks to $300.00 for senior counsel. (Filing 529-2; Appendix A to this Memorandum & Order.) The total amount of fees requested incorporates a 15% reduction of hours worked (from 2,002.5 to 1,702.4) “to account for duplication of effort and the partial and incomplete success of the Plaintiffs’ claims” and a multiplier of 2.25 to account for “the unusual circumstances of this case and to ensure adequate and competent counsel will be attracted to similar cases in the future.” (Filing 529-3 at CM/ECF p. 4 ¶ 29; Filing 528 at CM/ECF p. 21.) In addition to the
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$751,947.67 in attorneys’ fees for the merits litigation, Plaintiffs request $26,182.56 in costs and $13,111.88 for preparation of the attorneys’ fee application. (Filing 5292; Appendix A to this Memorandum & Order.)
The defendants argue that (1) five of Plaintiffs’ counsel have claimed excessive hourly rates; (2) a 15% reduction is warranted for partial and incomplete success and insufficient detail in billing entries; (3) reductions are warranted for duplicity in billing (98 hours), clerical work (181.40 hours), and unnecessary work involved in “forum shopping” (83.90 hours); (4) the plaintiffs are not entitled to any enhancement; (5) the hours claimed for preparation of the attorneys’ fee application should be reduced due to vague and unspecific billing entries; and (6) Plaintiffs’ $26,182.56 in requested costs cannot be recovered due to counsels’ failure to file a verified bill of costs pursuant to this court’s local rules and, in any case, expert witness fees may not be recovered under 42 U.S.C. § 1988. Applying these reductions, the defendants propose an award of attorneys’ fees for the merits litigation in the amount of $228,987.88; $7,840.56 in costs; and $11,379.38 for preparation of the attorneys’ fee application. (Appendix B to this Memorandum & Order.)
A. Fees for Merits Litigation
Defendants do not argue that Plaintiffs are not a prevailing party or that they are not entitled to any attorneys’ fees; rather, the amount of fees is the issue.
1. Hourly Rates
The defendants claim that five of Plaintiffs’ counsel have claimed excessive hourly rates: Stuart Dornan ($300), Tom Monaghan ($300), Jason Troia ($225), Josh Weir ($225), and Rodney Dahlquist ($200). (Filing 530 at CM/ECF pp. 22-25.) I disagree.
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“As a general rule, a reasonable hourly rate is the prevailing market rate, that is, ‘the ordinary rate for similar work in the community where the case has been litigated.’” Moysis v. DTG Datanet, 278 F.3d 819, 828-29 (8th Cir. 2002) (quoting Emery v. Hunt, 272 F.3d 1042, 1047 (8th Cir.2001)). See also Farmers Co-op Co. v. Senske & Son Transfer Co., 572 F.3d 492, 500 (8th Cir. 2009) (“relevant community” for determining hourly rates is place where case was tried). “In determining whether a fee is reasonable, the special skill and experience of counsel should be reflected in the reasonableness of the hourly rates,” Hendrickson v. Branstad, 934 F.2d 158, 164 (8th Cir. 1991) (internal quotation & citation omitted), and “district courts may rely on their own experience and knowledge of prevailing market rates.” Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005).
The plaintiffs have filed declarations (Filing 529-3) outlining their counsels’ legal education, training, background, and experience—both generally and in civil rights litigation. Attorney Stuart Dornan1 of Dornan, Lustgarten & Troia PC LLO graduated from law school in 1983; served as a Special Agent with the FBI for three years where he investigated and prosecuted crimes involving sexual assault; served as Douglas County Attorney and as a hearing examiner with the Nebraska Equal Opportunity Commission; is on the Board of Directors of the Nebraska Criminal Defense Attorneys’ Association and serves on the Federal Practice Committee for the District of Nebraska; has an AV rating with Martindale-Hubbell; has been named a Great Plains Super Lawyer and a Top 100 Trial Lawyer by the National Trial Lawyers
1For purposes of brevity, I discuss the background of only those attorneys singled out by Defendants as having excessive hourly rates. The defendants’ main argument regarding the alleged inflated nature of these attorneys’ hourly rates is based on fee requests filed in cases from other courts, such as Douglas County Court, Sarpy County Court, and Douglas County District Court. (Filing 531-8; Filing 531-9; Filing 531-10.) Suffice it to state that there is no evidence that any of these cases was remotely similar in complexity, size, and nature of the Doe cases under consideration here.
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Association; and is the president-elect of the Omaha Bar Association and a fellow with the Nebraska Bar Association. (Filing 529-3 at CM/ECF p. 2.)
Attorney Tom Monaghan graduated from law school in 1972, was the United States Attorney for the State of Nebraska from 1993 to 2001, and was the Director of the Department of Justice with the United Nations in Kosovo from 2004 to 2006. Over the last 40 years, he has appeared regularly in the United States District Courts representing both plaintiffs and defendants in a variety of complex criminal and civil cases. (Filing 529-3 at p. 7.)
Attorney Jason Troia graduated from law school in 1999, became a partner with Dornan, Lustgarten & Troia PC LLO in 2008, and has appeared regularly in the United States District Court for the District of Nebraska over the past 13 years, litigating a “plethora of constitutional issues in criminal cases.” (Filing 529-3 at CM/ECF p. 14.) Josh Weir graduated from law school with honors in 2006 and was involved in complex immigration and habeas litigation at two law firms before he joined the Dornan, Lustgarten law firm, where he became partner in 2010. (Filing 529-3 at CM/ECF p. 17.) Rodney Dahlquist has engaged in a “broad general civil litigation practice” since his graduation from law school with honors in 2008, and he is an associate attorney with Dornan, Lustgarten & Troia, PC LLO. (Filing 529-3 at CM/ECF p. 20.)
The plaintiffs have also filed the declarations of Amy A. Miller, Legal Director of ACLU Nebraska, and Thomas M. White, a Nebraska attorney who has been practicing law for almost 30 years. Miller has practiced constitutional law exclusively since 1999, has been responsible for handling a “number of cases of first impression regarding constitutional violations in state court, federal court and before administrative bodies,” and has made presentations on federal civil rights law at several national conventions and for the Nebraska Bar. She is familiar with the level of experience and expertise of Plaintiffs’ counsel and with the typical hourly rates charged in the Omaha, Nebraska, market for representation in civil rights cases: “[I]t
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is customary in the Omaha market for partners to charge fee-paying clients $300.00 per hour, and for associates to charge between $150.00 and $200.00 per hour. . . . It is also customary to charge clients for paralegal/law clerk time expended, as well as costs and advances incurred by a law firm.” (Filing 529-5 at CM/ECF p. 2.)
Thomas White, who has “developed some expertise in the area of civil rights” by handling several federal discrimination and civil rights matters in his nearly three decades of practice, states “it is customary in the Omaha market for partners to charge fee-paying clients $300.00 per hour, and for associates to charge $200.00. Further, it is customary to charge clients for paralegal/law clerk time expended on a case.” (Filing 529-5 at CM/ECF p. 4 ¶ 6.) White believes that the hourly rates charged by attorneys Rodney Dahlquist ($200), Stuart Dornan ($300), Tom Monaghan ($300), Jason Troia ($225), and Josh Weir ($225) “are fair and reasonable and represent market rates for this area for the services of attorneys and their staff given the level of expertise, skill and experience” of these individuals and their firm. (Id. ¶¶ 4-7.)
I conclude that each of these attorneys’ hourly rates are reasonable in light of their experience; the prevailing market rates in Lincoln and Omaha, Nebraska; and the complexity and size of the Doe cases. See, e.g., Riley v. Sun Life & Health Ins. Co., No. 8:09CV303, 2012 WL 182245, at *7 (D. Neb. Jan. 20, 2012) (Smith Camp, C.J.) (average hourly rates of $345, $290, $212, and $185 for plaintiff’s attorneys in ERISA case were reasonable for the Omaha, Nebraska, market in comparable cases); ElTabech v. Clarke, No. 4:04CV3231. 2011 WL 1979847 at *3 (D. Neb. May 20, 2011) (Bataillon, C.J.) (“Charges greatly in excess of $128.00 [PLRA hourly rate cap] are reasonable for civil rights cases in this legal market.”); Kellogg v. Nike, Inc., No. 8:07CV70, 2010 WL 323994 (D. Neb. Jan. 20, 2010) (Bataillon, C.J.) (hourly attorney billing rates of $175 to $335 were reasonable in complex patent case in Omaha, Nebraska, market); Sheriff v. Midwest Health Partners, P.C., No. 8:07CV475, 2009 WL 2992513, at *10 (D. Neb. Sep. 16, 2009) (Thalken, M.J.) (in Title VII action, Omaha attorneys’ hourly rates of between $200 and $300 appeared consistent with hourly rates in the relevant market based on evidence in the record); Chief Automotive
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Systems, Inc. v. Asterino, Nos. 4:97CV3017 & 8:07CV58, 2008 WL 151271, at *4 (D. Neb. Jan. 11, 2008) (Kopf, J.) (awarding attorneys’ fees as part of civil contempt sanctions and finding that hourly rates of $115 to $295 were within range lawyers practicing in this court charge for work of similar complexity); Developmental Services of Nebraska, Inc. v. City of Lincoln, No. 4:04CV3272, 2007 WL 1959244, at *1 (D. Neb. July 2, 2007) (Kopf, J.) (awarding $250,000 in attorneys’ fees in Fair Housing Act case after reducing hourly rates to between $125 and $300 to bring in line with relevant market for lawyers of comparable skill and experience).
2. Reduction for Partial/Incomplete Success & Lack of Detail
Defendants next argue that a 15% reduction is warranted for partial and incomplete success and insufficient detail in billing entries. (Filing 530 at CM/ECF p. 21.) Plaintiffs’ counsel agree, and they have filed declarations stating that they have applied a 15% reduction in hours spent on this case “to account for duplication of effort and the partial and incomplete success of the Plaintiffs’ claims.” (Filing 5293 at CM/ECF p. 4 ¶ 29; Filing 529-3 at CM/ECF p. 7 ¶ 12; Filing 529-3 at CM/ECF p. 11 ¶ 19; Filing 529-3 at CM/ECF p. 14 ¶ 13; Filing 529-3 at CM/ECF p. 18 ¶ 15; Filing 529-3 at CM/ECF p. 22 ¶ 20; Filing 529-3 at CM/ECF p. 25 ¶ 13.) Therefore, I shall apply a 15% reduction in hours spent on this litigation.
3. Reductions for Duplicity, Clerical & Unnecessary Work
In calculating the hours reasonably expended by Plaintiffs’ counsel in this litigation, I must review the records submitted by counsel, verify the accuracy of the records, and deduct excessive, redundant, and otherwise unnecessary work. U & I Sanitation, 112 F. Supp. 2d at 904. The defendants correctly maintain that reductions are warranted in this case for duplicity in billing (98 hours), clerical work (181.40 hours), and unnecessary work for “forum shopping” (83.90 hours).
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“A court may reduce attorney hours, and consequently fees, for inefficiency or duplication of services in cases where more than one attorney is used.” A.J. by L.B. v. Kierst, 56 F.3d 849, 864 (8th Cir. 1995). A reduction of the lodestar for duplicative billing is justified here. The customary practice in the Omaha, Nebraska, legal market is that “bills reflecting conferences in which sometimes as many as 6 or 7 attorneys and/or paralegals have attended an intra office conference . . . is unusual and most likely excessive.” (Filing 531-1, Aff. Mark C. Laughlin at CM/ECF p. 3.) Some of the evidence submitted by Plaintiffs indicates billing practices contrary to this local custom.
For example, on February 15, 2010, four attorneys (Dornan, Monaghan, Troia, and Dahlquist) participated in a pretrial strategy meeting, and each of them billed for their time. Additional strategy meetings, resulting in each of the participating attorneys billing separately for their time, were held on September 29, 2010, January 25, 2012, and June 20, 2012. (Filing 529-1 at CM/ECF pp. 25, 44, 50.) As compiled in a specific and detailed fashion by Defendants (and not disputed by Plaintiffs), additional instances of duplicative billing total 126.9 hours. (Filing 531-3; Filing 532, Pls.’ Reply Br. Opp’n Mot. Attys’ Fees & Expenses.) Therefore, the hours of time for which Plaintiffs may seek a fee award must be reduced by 98 hours, reflecting an award for only one attorney where multiple attorneys performed the same task.
Plaintiffs’ request for fees also includes 181.40 hours of clerical duties such as filing documents, mailing summons, and tabbing and organizing client files. (Filing 531-5; Filing 529-1.)2 However, “[i]n calculating attorneys’ fees, ‘purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them.’” Murray v. Collections Acquisitions, LLC, No. 8:11CV301, 2012 WL 2577211, at *2 (D. Neb. July 3, 2012) (quoting Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 (1989)). The defendants have filed evidence establishing that the customary
2Again, Plaintiffs do not object to Defendants’ compilation of such time. (Filing 532, Pls.’ Reply Br. Opp’n Mot. Attys’ Fees & Expenses.)
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practice in the Omaha, Nebraska, market is that “secretarial tasks, including but not limited to mailing of summons, updating files, filing documents in files, faxing documents . . . would generally not be billed to a client but would usually be considered part of a firm’s overhead.” (Filing 531-1, Aff. Mark C. Laughlin ¶ 8.) Emery v. Hunt, 272 F.3d 1042, 1048 (8th Cir. 2001) (“Plaintiffs are not entitled to reimbursement for expenses that are part of normal office overhead in the community.”) Accordingly, the lodestar shall be reduced by 181.4 hours to account for the plaintiffs’ request for reimbursement for purely secretarial or clerical tasks.
Finally, the amount of hours included in Plaintiffs’ attorneys’ fee request shall be further reduced by 83.9 hours to account for time spent litigating this case in various state courts. (Filing 531-6 (chart noting billing entries for work in Sarpy, Douglas, and Lancaster County District Courts and activity related to removal and “parallel State & Federal actions”); Filing 529-1; Filing 532, Pls.’ Reply Br. Opp’n Mot. Attys’ Fees & Expenses (not responding or objecting to Defendants’ reduction argument for “forum shopping”); Filing 100 (order requesting Nebraska state courts to refrain from issuing orders enjoining Nebraska Sex Offender Registration Act, noting that federal court was first to acquire jurisdiction of claims raised in Doe cases and “the possibility of conflicting injunctions serves no one’s interests”).)
4. Enhancement
The plaintiffs argue that they are entitled to enhancement of the lodestar by at least 2.25 due to the “unusual circumstances” of this case, to ensure that competent counsel are attracted to similar cases in the future, because the plaintiffs’ attorneys “have been precluded from other cases and employment due to acceptance of this case,” the “unpopular” and undesirable nature of this case, the risk of losing on the merits and fighting an “uphill battle” because “[s]ex offender registration laws have by and large been upheld throughout their existence,” and the delay and extra expense caused by the defendants’ litigation tactics. (Filing 528 at CM/ECF pp. 21-35.) The
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defendants assert that the plaintiffs are not entitled to any enhancement whatsoever.
“[E]nhancement is reserved for ‘rare’ and ‘exceptional’ cases, and must be supported by specific evidence in the record and detailed findings by the lower court. The applicant bears the burden of demonstrating that the lodestar amount must be enhanced to constitute a reasonable fee.” Hendrickson v. Branstad, 934 F.2d 158, 162 (8th Cir. 1991) (citations omitted). “It is only appropriate to enhance the lodestar when that method will not ensure competent counsel in future cases of a similar nature.” U & I Sanitation, 112 F. Supp. 2d at 904. The undesirability of a case, difficulty of questions presented, time and labor required, and length of professional relationship between attorneys and their clients cannot serve as bases for enhancing an attorneys’ fee award because these factors “are already reflected in the initial determination of the reasonable hourly rate and number of compensable hours.” Gilbert v. City of Little Rock, 867 F.2d 1063, 1067 (8th Cir. 1989) (affirming 10% fee enhancement only “to reflect enhancement solely for the risk of loss due to the contingent nature of the fee”).3
The plaintiffs discuss several reasons for applying a fee enhancement, but their main argument focuses on the undesirability of this case, the near “leper” status of the plaintiffs, and the economic effect of this undesirability on counsels’ professional lives. (Filing 528 at CM/ECF pp. 26-31 & 34-35.) Although I personally would like to award an enhancement for this very reason, there is insufficient precedent in the Eighth Circuit to do so, especially when the Eighth Circuit Court of Appeals has specifically stated that “the undesirability of this case . . . cannot serve as [a basis] for enhancing an award of attorney’s fees.” Gilbert, 867 F.2d at 1067.
Therefore, I decline to award an enhancement or multiplier in this case.
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B. Fees for Preparation of Attorneys’ Fee Application
Plaintiffs are entitled to recover fees for time spent preparing an attorneys’ fee application. El-Tabech v. Clarke, 616 F.3d 834, 843-44 (8th Cir. 2010). However, the defendants contend that the hours claimed for preparation of the attorneys’ fee application should be reduced due to vague and unspecific billing entries. See NECivR 54.4 (Fee Application Guidelines). I conclude that the Plaintiffs’ selfimposed 25% reduction in hours expended on the attorneys’ fee application is sufficient to account for any lack of specificity. (Filing 529-2 at CM/ECF p. 2.) Therefore, Plaintiffs’ request for $13,111.88 in attorneys’ fees for preparation of the application for such fees is reasonable.
C. Costs & Expenses
The defendants argue that Plaintiffs’ $26,182.56 in requested costs cannot be recovered due to their failure to file a verified bill of costs pursuant to this court’s local rules and, in any case, expert witness fees may not be recovered under 42 U.S.C. § 1988. Defendants are correct.
Section 1988(c) provides: “In awarding an attorney’s fee under subsection (b) of this section in any action or proceeding to enforce a provision of section 1981 or 1981a of this title, the court, in its discretion, may include expert fees as part of the attorney’s fee.” The plain language of section 1988(c) demonstrates that the expertfee provision applies only to actions brought under 42 U.S.C. §§ 1981 or 1981a. Because this action was not brought under those sections, Plaintiffs are not entitled to an expert witness fee as part of their attorneys’ fee award. Wedemeier v. City of Baldwin, 931 F.2d 24, 26-27 (8th Cir. 1991) (affirming district court’s refusal to award expert witness fees as part of reasonable attorneys’ fee under 42 U.S.C. § 1988, stating that “[t]he Supreme Court’s contrary holding in West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 111 S. Ct. 1138, 1148, 113 L. Ed. 2d 68 (1991), forecloses
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this argument”).4 See also Jenkins by Jenkins v. State of Missouri, 158 F.3d 980, 983 (8th Cir. 1998) (Casey held that expert witness fees could not be shifted to losing party under § 1988; “Congress amended § 1988 after Casey to authorize the award of expert fees in cases brought under 42 U.S.C. §§ 1981 and 1981a, Pub. L. No. 102-166, § 113(a)(2), 105 Stat. 1071, 1079 (1991), but that amendment does not affect this section 1983 case”); Hirsch v. Lecuona, No. 8:06CV13, 2008 WL 4457690, at *2 (D. Neb. Sept. 26, 2008) (Bataillon, C.J.) (declining to award expert witness fees as part of attorneys’ fee award in § 1983 case because 42 U.S.C. § 1988 limits recovery of expert witness fees to actions to enforce 42 U.S.C. §§ 1981 or 1981a “and does not include action under § 1983 for vindication of Constitutional rights”); 2 State & Local Gov’t Civil Rights Liability § 2:38 (2d ed. Nov. 2012), available at STLOCCIVIL § 2:38 (Westlaw) (footnotes omitted) (“[E]xpert witness fees cannot be awarded under Section 1988, as part of a ‘reasonable attorney’s fee. Such fees are controlled by the federal statutory limits on taxing costs.’”).
As part of their request for costs, Plaintiffs have included $16,260 for the services of its expert witness, Professor David Post. (Filing 529-4 at CM/ECF p. 28; Filing 529-1 at CM/ECF p. 57.) Based on the above authorities, this amount cannot be awarded as part of an attorneys’ fee award. However, some of Post’s expenses may be properly taxed as costs by the Clerk of Court pursuant to Fed. R. Civ. P. 54(d)(1) (pertaining to costs other than attorneys’ fees).5
4Casey held that “§ 1988 conveys no authority to shift expert fees. When experts appear at trial, they are of course eligible for the fee provided by § 1920 and § 1821.” After Casey, Congress amended section 1988 to add section 1988(c) to allow courts to award expert witness fees in actions or proceedings to enforce sections 1981 or 1981a. 42 U.S.C. § 1988(c). The amendment did not include claims made under section 1983.
5The Clerk of Court should note that Professor Post is not a court-appointed expert under 28 U.S.C. § 1920(6). See Nebraska Civil Rule 54.1 (Taxation of Costs) (Dec. 1, 2012); United States District Court for the District of Nebraska, Bill of Costs Handbook, available at http://www.ned.uscourts.gov/forms.
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As to the remaining $9,922.56 in requested costs, “[a]n attorney fee that includes as a component some of the expenses of the attorney is authorized under the lodestar method, but only to the extent that such expenses would normally be paid by fee-paying clients as a part of an attorney fee in the relevant market.” Sirois v. Superior Pub. Co., Inc., No. 4:04CV3064, 2005 WL 1459388, at *2 (D. Neb. June 20, 2005) (Kopf, J.). The only evidence submitted to establish that Plaintiffs’ costs are normally paid by fee-paying clients is the blanket statement by ACLU Legal Director Amy Miller that “[i]t is . . . customary to charge clients for . . . costs and advances incurred by a law firm, in connection with a lawsuit.” (Filing 529-5 at CM/ECF p. 2 ¶ 13.) In the absence of more specificity, I cannot conclude that each of Plaintiffs’ claimed costs are of the type normally paid by fee-paying clients in this market. Therefore, Plaintiffs’ remaining costs shall not be awarded as part of Plaintiffs’ reasonable attorney fee. However, these costs may be taxable by the Clerk of Court pursuant to Fed. R. Civ. P. 54(d)(1) and 28 U.S.C. § 1920 upon the filing of a proper bill of costs.6
III. LODESTAR CALCULATION
As reflected in Appendix C to this Memorandum and Order, Plaintiffs are entitled to $279,453 in attorneys’ fees for 1,342.6 net hours expended on the merits litigation and $13,111.88 in fees for preparation of the application for attorneys’ fees. Plaintiffs are not entitled to costs as part of their attorneys’ fee award.
Accordingly,
6The Clerk of Court shall not award costs for the $164.00 in filing fees in the district courts of Douglas and Sarpy counties for the same reason that I declined to award fees for time spent in such state litigation. (Filing 529-1 at CM/ECF pp. 56-57 (listing $82.00 in filing fees for Douglas and Sarpy County District Courts).)
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IT IS ORDERED:
1. Plaintiffs’ motion for attorneys’ fees and expenses (filing 527) is granted in part and denied in part, as follows: Pursuant to 42 U.S.C. § 1988, the plaintiffs are hereby awarded total attorneys’ fees against the defendants in the amount of $292,564.88. In all other respects, the plaintiffs’ application is denied without prejudice to the plaintiffs’ ability to seek taxation of costs pursuant to Fed. R. Civ. P. 54(d)(1) and 28 U.S.C. § 1920;
2. Plaintiffs’ motion for hearing regarding attorneys’ fees and expenses (filing 533) is denied;
3. Judgment shall be entered by separate document.
DATED this 21st day of December, 2012.
BY THE COURT: Richard G. Kopf Senior United States District Judge
*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.
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APPENDIX A Plaintiffs’ Requested Attorney Fee and Cost Calculation (Merits Litigation)

Attorney

Total hours (Reduction) expended

Requested Requested hours billed hourly rate

Stuart Dornan 268.9

Tom Monaghan 75.0

Christine

18.7

Lustgarten

Jason Troia

44.3

Josh Weir

89.7

Rodney Dahlquist

1038.8

Ross Pesek

4.3

Blake Richards 128.2

Paralegal/ law clerk

334.7

40.3 11.2 2.8
6.6 13.5 155.8
0.6 19.2 50.2

228.6 63.8 15.9
37.7 76.2 883.0
3.7 109.00 284.5

$300.00 $300.00 $200.00
$225.00 $225.00 $200.00
$150.00 $150.00 $85.00

(Total hours) (Less (Requested reduction) rate)
$80,670.00 $12,090.00
$22,500.00 $3,360.00
$3,740.00 $560.00

Requested Lodestar
$68,580.00 $19,140.00 $3,180.00

Minimum Enhanced fee multiplier

2.25

$154,305.00

2.25

$43,065.00

2.25

$7,155.00

$9,963.00 $1,485.00 $8,478.00

2.25

$20,182.50 $3,037.50 $17,145.00 2.25

$207,760.00 $31,160.00 $176,600.00 2.25

$19,075.50 $38,576.25 $397,350.00

$645.00

$90.00

$555.00

2.25

$19,222.50 $2,880.00 $16,342.50 2.25

$28,445.25 $4,266.79 $24,178.46 2.25

$1,248.75 $36,770.63 $54,401.54

Totals

2002.5

1,702.4

$391,373.25 ($58,705.99) $332,667.26 Total Attorney Fee Requested Total Requested Costs and Advances Total Requested Award

$751,947.67 $26,182.56 $778,130.23

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APPENDIX A (cont’d) Plaintiffs’ Requested Attorney Fee and Cost Calculation (Fee Application)

Attorney
Stuart Dornan Christine Lustgarten Rodney Dahlquist Thomas Monaghan Paralegal/ law clerk

Total hours expended 18.3 10.0 25.0 2.9 48.5

(25% self-im posed reduction) 4.6 2.5 6.3 0.7 12.1

Requested hours billed

Requested hourly rate

13.7

$300.00

7.5

$200.00

18.8

$200.00

2.2

$300.00

36.4

$85.00

Total Requested Award

Requested fee
$4,117.50 $1,500.00 $3,750.00 $652.50 $3,091.88 $13,111.88

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APPENDIX B Defendants’ Proposed Attorney Fee

Attorney
SJD TJM CAL JET JWW RCD RRP BTR PLC

Total hours expended

Duplicative reduction

Clerical Forum reduction shopping
reduction

Subtotal hours after reductions

Partial, incomplete, vague reduction

Lodestar hours

Lodestar hourly rate

Total Lodestar

M ultiplier Total fees

268.9

0.0

(1.0)

(8.3)

259.6

15%

220.7

$250

$55,165.00 0

$55,165.00

75.0

(21.1)

0.0

(2.0)

51.9

15%

44.1

$250

$11,028.75 0

$11,028.75

19.4

(18.9)

(0.5)

0.0

0.0

15%

0.0

$200

$0.00

0

$0.00

44.3

(11.5)

0.0

0.0

32.8

15%

27.9

$200

$5,576.00 0

$5,576.00

89.7

(13.9)

0.0

(32.0)

43.8

15%

37.2

$150

$5,584.50 0

$5,584.50

1038.8

(22.8)

(2.0)

(39.1)

974.9

15%

828.7

$150

$124,299.75 0

$124,299.75

4.3

0.0

0.0

0.0

4.3

15%

3.7

$150

$548.25

0

$548.25

128.2

0.0

0.0

0.0

128.2

15%

109.0

$150

$16,345.50 0

$16,345.50

334.7

(9.8)

(177.9) (2.5)

144.5

15%

122.8

$85

$10,440.13 0

$10,440.13

Totals

2003.3

(98.0)

(181.4) (83.9)

1640.0

1394.0

$228,987.88

$228.987.88

8:09-cv-00456-RGK-CRZ Doc # 535 Filed: 12/21/12 Page 20 of 23 - Page ID # 6876

Attorney
SJD TJM CAL RCD PLC

Total hours expended 18.3 2.9 10.0 25.0 48.5

APPENDIX B (cont’d) Defendants’ Proposed Fees on Fees

Excessive fees on fees reduction 25% 25% 25% 25% 25%

Total hours
13.7 2.2 7.5 18.8 36.4

Hourly rate
$250 $250 $200 $150 $85

Totals

104.7

41.9

Total requested costs $26,182.56
Total fees Total fees on fees Total costs Total award

Defendants’ Proposed Costs

Expert witness reduction ($16,260.00)

Forum shopping reduction Excessive summons reduction

($82.00)

($2,000.00)

Defendants’ Total Proposed Award

$228,987.88 $11,379.38 $7,840.56 $248,207.81

Total fees on fees $3,431.25 $543.75 $1,500.00 $2,812.50 $3,091.88
$11,379.38
Total costs $7,840.56

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APPENDIX C Court’s Calculation of Attorneys’ Fees for Merits Litigation

Attorney
SJD TJM CAL JET JWW RCD RRP BTR P/LC

Total hours expended
268.9 75.0 18.7 44.3 89.7 1038.8 4.3 128.2 334.7

15% reduction
40.3 11.2 2.8 6.6 13.5 155.8 0.6 19.2 50.2

Subtotal of hours expended
228.6 63.8 15.9 37.7 76.2 883.0 3.7 109.0 284.5

Duplicative reduction
0 (21.1) (18.9) (11.5) (13.9) (22.8) 0 0 (9.8)

Clerical reduction
(1.0) 0 (0.5) 0 0 (2.0) 0 0 (177.9)

Forum-shopping Net hours

reduction

expended

(8.3) (2.0) 0 0 (32.0) (39.1) 0 0 (2.5)

219.3 40.7 0 26.2 30.3 819.1 3.7 109.0 94.3

Hourly rate Total lodestar

$300 $300 $200 $225 $225 $200 $150 $150 $85

$65,790 $12,210 0 $5,895 $6,817.50 $163,820 $555 $16,350 $8,015.50

Totals

2002.5

1702.4

(98.0)

(181.4)

(83.9)

1342.6

$279,453

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Attorney
SJD CAL RCD TJM P/LC

APPENDIX C (cont’d) Court’s Calculation of Attorneys’ Fees for Preparation of Fee Application

Total hours expended 18.3 10.0 25.0 2.9 48.5

(25% self-im posed reduction) 4.6 2.5 6.3 0.7 12.1

Requested hours billed

Requested hourly rate

13.7

$300.00

7.5

$200.00

18.8

$200.00

2.2

$300.00

36.4

$85.00

Total Award for Fee Application

Requested fee
$4,117.50 $1,500.00 $3,750.00 $652.50 $3,091.88 $13,111.88

Total fees for merits litigation Total fees for preparation of fee application Total costs Total award

TOTAL AWARD
$279,453 $13,111.88 $0 $292,564.88

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